Nationalist Coalition Blog

Aharon Barak, hero to some, clever to all

We are about to release our latest Nationalist Matters transcript covering the history of the Supreme Court ,or at least a chosen slice of the Supreme Courts history. What prompted this subject was the ongoing Senate Judiciary hearing of President Obama’s last Supreme Court Justice. But it really goes much deeper and much further back than that.

Until then, we could at least discuss one facet of Supreme Court Justice-nominee, Elena Kagan. She has been around awhile at one time serving in President Clinton’s administration and currently serving as Solicitor General in President Obama’s administration. She served as the Dean of Harvard Law School and once clerked for Supreme Court Justice Thurgood Marshall, the first Black to serve that court.

And, oh yea, she will be the eighth Jewish Supreme court Justice to sit on the highest court in the land, the third to be sitting on the current Supreme Court, and the second to be sitting on the current Supreme Court that is another Jew from New York. Kagan shares her gender with that other beauty Justice Ruth Ginsberg. Between them, two New York Jews with proportionally higher estrogen to testosterone production will hold both female and Jewish Justice seats on the Court, seats simultaneously. While Justice Breyer holds the third Jewish seat, he is a West Coast Jew and carries an inverse estrogen to testosterone factor. But these days that really only counts in synagogue.

Speaking of synagogue, when Kagan turned 12 years-old, she decided it was important for her to have a bat mitzvah, the female equivalent of a bar mitzvah and Jewish coming of age celebration, at synagogue. Her family was attending an Orthodox synagogue but the rabbi had never performed a bat mitzvah, the old-school tradition was only for bar mitzvah at synagogue. Rabbi Shlomo Riskin conceded to her demands but have her only a compromised version saving the Jewish Orthodox traditions for the boys (Judaism is not as gender-enlightened as perhaps Jewess Ginsberg and Jewess Kagan would like).

More on all that soon. What should be pointed out in addition to our pending Nationalist Matters transcript is what the controlled mass media will not spend any or much time on regarding these Senate Judiciary hearings. The kosher-party-line shell-game involves misdirection, deception, and irrelevance. They will chuckle about remarks Kagan had about Christmas and Chinese restaurants but nothing important. The biggest distraction seems to be Kagan’s military recruiting efforts, or lack thereof, in light of the politically incorrect “don’t ask, don’t tell” policy that is also not important.

What is a bit more important, besides the obvious Jewish Supremacy Court effect, is something that came to my attention during the Senate hearings. So I guess the Senate just going through the motions show for tradition and the media was helpful for me. Soon to be Justice Kagan was called on the carpet for remarks she made years ago while Dean at the Harvard Law School. This must have happened while most of the kosher-party-line crew was on a bathroom break as it did not make it prominently in the headlines. However there is a lot of information and even video available for review.

Apparently Elena Kagan has proudly claimed that the President of the Supreme Court of Israel, Aharon Barak, was her personal “judicial hero”. She actually said much more than that but that was enough. That may not leave much of an impression until you dig deeper into who Aharon Barak actually is. That is the main point of this post and is what should have made headline news as well as rattled the cage of the collective citizenry of this Democracy.

Aharon Barak was a judge on the Israeli Supreme Court for almost 30 years, leaving the court only after reaching the maximum allowed age of 70 years-old. When appointed to the Supreme Court, Aharon Barak became the youngest ever Justice to be appointed to that court. For over 10 of those years he served as the President of the Israeli Supreme Court which would be like the Chief Justice in the US Supreme Court. But don’t make too many more comparisons between these two distinctly different courts. Before serving on the Supreme Court, he served as the Attorney General of Israel and was considered by some as Israel’s most powerful Attorney General. Under his watch as Attorney General, he is attributed with brining about the resignation of Israeli Prime Minister Yitzhak Rabin in 1977. This led directly to the election of Israel’s first-ever right-wing government headed by Menachem Begin. And Oy vey did Begin have some things to do and say. This is not to say Aharon Barak is an Israel right-winger because he certainly is not. Aharon Barak is an intelligent and accomplished Jew from a family of accomplished Jews. His great uncle, Rabbi Meir Katz (pictured above), was also the founder of the Jewish Peoples Bank of Lithuania.

The buzzword at the Senate hearing that brought Elena Kagan admiration for Aharon Barak to the floor was “activist judge”. It was the ranking Republican on the Senate Judiciary Committee, Jeff Sessions, that had the initial politically-incorrect confrontation (FYI, VERY politically-incorrect to use the name of Israel, or anything related to it, in vain and especially in the Senate!). Truth is, Senator Sessions was not even taking the gloves off with his questions and Kagan was allowed to quickly dismiss any unflattering impact.

But with some scrutiny and research we find that Barak is really more of an ultra-activist judge preaching for a universally accepted ultra-activist judiciary. Under a Barak judicial philosophy, which the Israeli Supreme Court adopted and used, a judge has the responsibility and obligation to not only interpret the law but to also fill in any gaps that may exist within it. Not really the sort of judiciary our Founding Fathers had in mind but they also did not have in mind a highly Jewish judiciary. Regardless, Barak’s judicial philosophy is modeled somewhat after the system our Founding Fathers did put in place.

Other things to note about Kagan’s hero Barak, he successfully reduced the dominant appearance of Jewish Law, or Halacha, as he “interpreted” and filled-in gaps within the law. Excising the influence of Judaism on the laws helps us dismiss as almost irrelevant the issue of Judaism to our understanding of Jews. In addition to pulling the Kosher wheels off of Israeli legislation, Barak is also attributed with being the driving force behind the creation of an Israeli Constitution, something that officially has never existed. While on the Supreme Court, Barak argued that Israel’s 1992 passage of Basic Law introduced the framework for which he and his fellow Justices would imply an official Constitution. Then they got busy interpreting and filling in gaps and crafting a quasi-Constitution. He is truly an activist judge, a radical judge, and a proud and flaming liberal judge.

From his book, see what Barak says about the law as he explains his legal philosophy. This is profoundly radical and what I would call an ultra-activist view of the law.

Aharon Barak, “Judicial Philosophy and Judicial Activism,” pp 477 and 485

“In my eyes, the world is filled with law. Every human behavior is subject to a legal norm. Even when a certain type of activity-such as friendship or subjective thoughts-is ruled by the autonomy of the individual will, this autonomy exists, because it is recognized by the law…. Wherever there are living human beings, law is there. There are no areas in life which are outside of law.”

The legal philosophy of Aharon Barak is something to read and think about if you are an Israeli citizen, or at least if you were an Israeli citizen during his rule on the Israeli Supreme Court. He thinks that the ‘law’ is omnipresent, ubiquitous and all-encompassing. Anything the ‘law’ does not prohibit it must therefore permit, and the opposite would hold true too. A universe of laws that will be deciphered, clarified, and expanded upon, by a judicial branch of the government. The legal philosophy of Aharon Barak, his endorsed jurisprudence, is simple to understand but requires a little thought to truly understand. In his above quote, even human free-will produced subjective thoughts are under the jurisdiction of the ‘law’ and a governmental judiciary will help document, interpret, and adjudicate.

That is something for Israelis to deal with but the fact that Aharon Barak sat on its Supreme Court for almost three decades tells us how they dealt with it. It becomes something for us to think and deal with when the Aharon Barak legal philosophy is embraced here, for example, when a Supreme Court Justice or a nominee to that court indicates a sympathetic attitude towards that philosophy.

Now bring in a real-world example of Barak’s legal philosophy in action. The Jerusalem Post has an article from 2006 illustrating the outcome of some Barak ultra-activist jurisprudence in action. In a nutshell, Israel, like the vast majority of the entire world, did not recognize gay marriage. Read one reporters take on how Barak used his liberal activism from the bench to put Israel into the minority of countries that permit gay marriage. The Jerusalem Post reporter, who obviously does not share soon to be Justice Kagan’s judicial hero-worship of Justice Barak, described the legal philosophy pretty well. In the gay marriage case the legal claim is that Israel must presume gay marriage is legal because the Israeli legislature, the Knesset, had not explicitly made it illegal.

Actually, from my perspective, if he were not a Jewish (and Zionist by the way), ultra-liberal, ultra-activist, former Israeli Supreme Court Justice, I might also admire his ability to craft such a slick legal philosophy and use his position to implement it. But alas, Aharon Barak is all the above and my objective now is just to make sure you understand where soon to be Supreme Court Justice Kagan gets her motivation.

Click here for original Jerusalem Post article

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