Now that I’ve offered my own testimony before the Senate Judiciary Committee and have access to a transcript of Elena Kagan’s testimony, I’m going to publish a series of posts explaining some of the respects in which I find her testimony unsatisfactory. I’m going to focus heavily on those matters that I have previously written about and leave other matters to other commentators.
A good place to start—because it has broader implications for other matters—is Kagan’s testimony about her jarring acclaim for former Israeli justice Aharon Barak.
Some background: In 2006, Kagan proclaimed that Barak “is my judicial hero,” that he “is the judge or Justice in my lifetime whom [sic], I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.” She said that she was prouder of Harvard Law School’s association with Barak than of its association with American Supreme Court justices Brandeis, Holmes, Brennan, and Frankfurter. As Richard A. Posner has explained (and as a review of Barak’s positions on the “litmus test” issue of standing amply shows), Barak is, by American standards, an incredible arch-activist:
Although Barak is familiar with the American legal system and supposes himself to be in some sort of sync with liberal American judges, he actually inhabits a completely and, to an American, weirdly different juristic universe.…
[W]ithout a secure constitutional basis, Barak created a degree of judicial power undreamt of by our most aggressive Supreme Court justices.
Here’s how Kagan explained her acclaim for Barak at her hearing (Grassley Round 1):
I do admire Justice Barak, who is, of course — was for many years the chief justice of the State of Israel. He is very often called the “John Marshall of the State of Israel” because he was central in creating an independent judiciary for Israel and in ensuring that Israel, a young nation, a nation threatened from its very beginning in existential ways, and a nation without a written constitution — he was central in ensuring that Israel, with all those kinds of liabilities, would become a very strong rule of law nation, and that’s why I admire Justice Barak, not for his particular judicial philosophy, not for any of his particular decisions. As you know–I don’t think it’s a secret–I am Jewish. The State of Israel has meant a lot to me and my family, and I admire Justice Barak for what he has done for the State of Israel in ensuring an independent judiciary.
I don’t see how Kagan’s explanation works. Kagan’s acclaim for Barak as “my judicial hero” was accompanied by her statement that she was prouder of Harvard Law School’s association with Barak than of its association with Brandeis, Holmes, Brennan, and Frankfurter. She wasn’t speaking from the perspective of a Jewish American grateful for Barak’s contributions to Israel. She was speaking as a law school dean and was celebrating Barak as the judge who “best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.” I don’t see how those concepts can be separated from his “particular judicial philosophy.” Nor do I see how Barak’s judicial approach—under which, as Posner puts it, “the judiciary is a law unto itself”—can be said to promote the “rule of law” or “democracy.”
As I see it, there are two alternatives:
One alternative is that Kagan genuinely regards Barak as a judicial model. As her testimony distancing herself from that alternative implicitly concedes, that alternative ought to be disqualifying.
The other alternative is that Kagan didn’t really mean what she said about Barak. At her hearing, Kagan suggested that alternative:
I made these remarks about Justice Barak when he came to Harvard Law School to give a speech. One of the things that I did as Dean of Law School was I gave introductions. I gave introductions to many, many people. If any of you [senators] had come to Harvard Law School, I would have given you a great introduction, too.
If we assume that alternative to be the case, it’s worth highlighting (as I have discussed) that Kagan’s acclaim for Barak far exceeded the usual bounds of ceremonial praise. If Kagan’s praise can’t be taken to mean anything close to its natural meaning, shouldn’t that cause us to suspect that other praise that she offered in her capacity as dean or in her hearing testimony—for the military, for example—was also wildly overblown?
My point here isn’t to question Kagan’s subjective sincerity. But it’s noteworthy that Kagan has had a meteoric rise in two environments—legal academia and D.C. politics—in which fawning is richly rewarded. I wonder if she has so absorbed the craft that her statements of praise simply can’t be taken to mean anything close to what they say.