Robert Bork: With Elena Kagan, U.S. Moves Closer to Rule by “Committee of Ideologues

Robert Bork: With Elena Kagan, U.S. Moves Closer to Rule by “Committee of Ideologues”


By Peter J. Smith

WASHINGTON, D.C., June 23, 2010 ( – Former U.S. Supreme Court nominee and conservative jurist Robert Bork warned Wednesday that President Obama’s Supreme Court nominee Elena Kagan should be opposed. He also said that the nomination of liberal activists to the Supreme Court showed the United States was drifting closer to rule by a “committee of ideologues.”

Bork was nominated by President Ronald Reagan for the Supreme Court in 1987, but violent opposition in the Senate to his strict interpretation of the U.S. Constitution and opposition to Roe v. Wade led to the demise of his confirmation hopes. In a conference call with reporters hosted by Americans United for Life, Bork said that Kagan’s vision of judicial power and its role can be seen in her adulation of former Israeli Chief Justice Aharon Barak, whom Kagan once called her “judicial hero.”

“It’s typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, of what courts can do, and that usually wears off when times passes and they gain experience,” Bork told reporters. “But Miss Kagan has not yet had time to develop a mature philosophy of judging. I would say that her admiration for Barak, the Israeli Supreme Court Justice, is a prime example of that.”

“Barak may be the worst judge on the planet – one of the most activist judges,” continued Bork. The conservative jurist said that Barak used the court to create widespread and intrusive constitutional law in Israel “without having a constitution.”

“Mr. Barak is quite clear about whose values he is importing in the name of Democracy,” explained Bork. “He says that when fundamental values come in conflict with the views and values of the enlightened (and the enlightened turn out to be professors, journalists, and so forth – all of whom live in one area of Israel with the same postal code) he is quite dismissive of other views.”

Bork mentioned how Barak grabbed hold of the Basic Law of Human Dignity passed by the Israeli Knesset in 1992 “in middle of night, without quorum, and without any recognition of its constitutional nature” – meaning it should have had no legal force. But Barak treated it as a binding legal document, and inaugurated a constitutional revolution in Israel.

Bork explained that under Barak’s philosophy the court can judge any issue and can reorder Israel’s life in any way it sees fit. Barak’s philosophy says the courts authority only ends when issues are “non-justiciable.”

“Barack does not address the question of when all issues are held ‘justiciable’ – when the wielder of power becomes the court,” observed Bork. “We know now that when the wielder of power becomes the court, there is no one to say that the court should not do whatever it wants.”

That case, said Bork, was illustrated by Barak’s Supreme Court’s takeover of the Israeli attorney general’s office – a move Bork said robbed the Knesset and the government of the right to appeal and advance arguments the court did not like.

“I think if people understood it, that an American supreme court nominee was going to follow the example of Barak, they would have grave misgivings and probably refusal to confirm.”

In 2003, Robert Bork wrote a short and highly readable book “Coercing Virtue The Worldwide Rule of Judges” explaining this threat. It has four chapters:
1 The Internationalization of Law
2 The United States
3 Canada
4 Israel

He begins his introduction with a quote from James Madison “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation.”

He goes on "The nations of the West have long been afraid of catching the “American disease”–the seizure by judges of authority properly belonging to the people and their elected representatives. Those nation are learning, perhaps too late, that this imperialism is not an American disease, it is a judicial disease, one that knows no boundaries. The malady appears wherever judges have been given or have been able to appropriate the power to override decisions of other branches of government–the power of judicial review. That is why we see in virtually all Westernized nations dramatic and unplanned changes in governments and in cultures.

It is apparent even to a casual observer that, everywhere, democracy and indigenous moral traditions are in retreat. Even as more nations adopt democratic forms of government, reforms are undermined by other internal developments. This is particularly noticeable in older, advanced democracies. Increasingly, the power of the people of Western nations to govern themselves is diluted, and their ability to choose the moral environment in which they live is steadily diminished.

It would be a mistake to attribute all these changes to the courts. There are many forces driving this devopment…This book, however, will concentrate on what seems to me the single most powerful influence aiding and abetting all other forces: the recent ascendancy almost everywhere of activist, ambitious, and imperialistic judiciaries…"

Boy does THAT sound familiar in Canada

Contrary to Bork’s comments, I would say that the current court is captive to ideologues (of the right wing variety) appointed by Republican presidents and is moving toward the middle.

Yep,you guys got rid of that pesky abortion thing.

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