Drudge hypes discredited attack on Kagan’s admiration for a judge that Scalia, Fried also praised
Posted in Main Blog (All Posts) on June 25th, 2010 4:50 am by HL
Drudge hypes discredited attack on Kagan’s admiration for a judge that Scalia, Fried also praised
The Drudge Report is hyping a discredited attack that Elena Kagan’s past praise of former Israeli Supreme Court Justice Aharon Barak is evidence that she is outside of the mainstream. In fact, conservative Justice Antonin Scalia and former Reagan administration Solicitor General Charles Fried also praised Barak.
Drudge trumpets attack on Kagan for calling “Israeli Activist Judge ‘My Hero'”
Drudge: “Kagan calls Israeli Activist Judge ‘My Hero.'” Posting the headline, “Kagan Calls Israeli Activist Judge ‘My Hero,'” the Drudge Report program for the event said Scalia was scheduled to present the award to Barak during a reception at the U.S. Supreme Court; the Spring 2008 issue of Justice Magazine, a publication by the International Association of Jewish Lawyers and Jurists (IAJLJ) called Scalia’s presentation the “highlight of the conference.”
The Jewish Daily Forward described Scalia’s remarks as “singing Barak’s praises.” In a July 10, 2007, profile in the Jewish Daily Forward, Benjamin Soskis wrote that during the reception, Scalia was “singing Barak’s praises,” even as he “addressed the other obvious disparity between himself and the honoree.” From the article:
With the court’s two Jewish justices looking on (Stephen Breyer and Ruth Bader Ginsburg, also two of the most enthusiastic champions of foreign court decisions as juridical resources), Scalia offered a moving tribute to his “good friend” Barak. No other living jurist has had a greater impact on his own country’s legal system — and perhaps on legal systems throughout the world — Scalia argued. He went on to celebrate his fruitful and long-standing relationship with the Israeli judge, and to affirm a profound respect for the man, one that trumped their fundamental philosophical, legal and constitutional disagreements.
Forward: Scalia described Barak as a “judicial pioneer.” Soskis also reported in the article that while Scalia noted differences between his and Barak’s judicial philosophies, he “exposed a crucial condition of their intellectual camaraderie: the recognition that the substantial differences of the constitutional systems in which they operated necessarily produced divergent judicial philosophies.” From the article:
In his celebration of Barak, Scalia had described him as a judicial pioneer, stressing that the Israeli judge had struggled with questions concerning the nature and limits of his responsibilities as a jurist that Scalia, as a resident of a more mature constitutional system, had not had to confront. With this pronouncement, Scalia exposed a crucial condition of their intellectual camaraderie: the recognition that the substantial differences of the constitutional systems in which they operated necessarily produced divergent judicial philosophies. This insinuation angered Boston University’s Lahav. At the ceremony’s conclusion, she approached Barak, her former teacher, to complain that Scalia had celebrated his friend only to sequester him within the exceptionality of the Israeli legal system. Why didn’t you confront Scalia, she asked, and let him know that he, too, could follow your example, championing vulnerable rights and liberties, if he only willed to do so?
IAJLJ president: Holocaust survivor Barak’s life exemplifies “a life filled with hope for a Jewish society based on freedom, justice and human dignity.” According to Justice Magazine, at the same conference at which Scalia presented Barak with an award, IAJLJ president Alex Hertman said:
“The life of Aharon Barak, a child survivor of the Holocaust, symbolizes the victory of the Jewish people over those who tried to destroy them,” said IAJLJ President Alex Hertman. “His life exemplifies a victory of values over violence, a victory of excellence over mediocrity, and a life filled with hope for a Jewish society based on freedom, justice and human dignity as opposed to a society living by the sword.”
Fried tied Dworkin’s “picture…of a judge, superman, a mythical character, whom he calls Hercules” to Barak. At a 2002 event sponsored by the Harvard Law Review, Fried spoke immediately after Barak and said:
FRIED: The philosopher Ronald Dworkin — in his, I think, chef-d’oeuvre, 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. (42:45 mark of the C-SPAN video)
