Bork reportedly will push discredited attack on Kagan

Blog ››› ››› ADAM SHAH

According to ABC News' Ariane de Vogue, former Judge Robert Bork will announce his opposition to Elena Kagan's nomination to the Supreme Court tomorrow. According to de Vogue, "Bork will take exception, among other things, with Kagan's one time praise for Judge Aharon Barak, the retired Chief Judge of the Supreme Court of Israel." However, Kagan is not alone in praising Barak. U.S. Supreme Court Justice Antonin Scalia reportedly sang Barak's praises while presenting him an award. And former Bush administration Solicitor General Charles Fried called Barak "superhuman."

As de Vogue writes, "In 2006 Kagan praised Barak at an event in Harvard. She called Barak 'my judicial hero,' and said, 'He is the judge who has best advanced democracy, human rights, the rule of law, and justice.' "

But Kagan's praise for Barak is hardly evidence that she is outside the mainstream. Indeed, at the same event in which Kagan praised Barak, Fried described Barak as "superhuman, a mythical character" who "manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer."

From the event (at the 42:45 mark of the C-SPAN video):

FRIED: The philosopher Ronald Dworkin -- in his, I think, chef-d'ouvre, his absolutely best piece written many years ago and published in the Harvard Law Review, which was called "Hard Cases" -- develops a theory of judging. And his picture is of a judge, superhuman, a mythical character, whom he calls Hercules, who manages to integrate -- and I use the word integrate in the mathematical sense where you [gestures] -- manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer. It is a remarkable experience to be in the presence of and to have just heard a lecture from a living myth. Because Hercules lives, and you have just heard from him.

In addition, in a July 10, 2007, profile of Barak in the Jewish Daily Forward, Benjamin Soskis wrote that Scalia presented Barak with the American Association of Jewish Lawyers and Jurists' Pursuit of Justice in March 2007. Soskis wrote that Scalia was "singing Barak's praises," even as he "addressed the other obvious disparity between himself and the honoree."

Posted In
Government, Nominations & Appointments, The Judiciary
Network/Outlet
ABCNews.com
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Supreme Court Nominations, Elena Kagan
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