Americans United for Life | AUL’s Kagan File: The “Proudest Association” Memo
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AUL’s Kagan File: The “Proudest Association” Memo

AUL’s Kagan File: The “Proudest Association” Memo

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MEMORANDUM

To: Interested Parties

From: AUL Legal Team

Date: June 3, 2010

Re: Kagan on Barak: “Harvard Law’s Proudest Association”

At an award ceremony held at Harvard Law School in September 2006, Dean Elena Kagan introduced the winner of the annual Peter Gruber Foundation Justice Prize, newly-retired President Aharon Barak of the Supreme Court of Israel.  In her remarks, Dean Kagan called Aharon Barak “my judicial hero.”[1]

The press release issued by the Gruber Foundation announcing the award stated: “President Barak is renowned for championing an activist judiciary and the rule of law and democracy.”[2]

In her introduction, Ms. Kagan noted there have been many “famous and great judges Harvard Law School [has been] associated with.”  She named four United States Supreme Court justices and other distinguished alumni of Harvard Law School, whose portraits hang in the Harvard Law School library, including Louis Brandeis, Oliver Wendell Holmes, Jr., William Brennan, and Felix Frankfurter.  Then she continued by saying, “but the Harvard Law School association of which I am most proud of is the one with President Aharon Barak.”[3]

Barak is a judge whose judicial views contradict important features of the American legal system.  Among his views are:

  • A rejection of non-justiciability of political questions—Barak said:  “According to my outlook, law fills the whole world.  There is no sphere containing no law and no legal criteria.  Every human act is encompassed in the world of law.  Every act can be ‘imprisoned with’ within the framework of the law.  Even actions of a clearly political nature, such as waging war, can be examined with legal criteria.”[4] Barak rejects the concept recognized in American Constitutional law of non- justiciability of political questions, which in U.S. Constitutional law is an important limitation on the judiciary.
  • Expanded rules of standing—Barak said:  “I believe my role as a judge is to bridge the gap between law and society and to protect democracy.  It follows that I also favor expanding the rules of standing and releasing them from the requirement of an injury in fact.  The Supreme Court of Israel has adopted this approach.”[5] In Israel, anyone can bring a case before the Supreme Court, expanding the judiciary’s role in a manner alien to U.S. Constitutional law.

Note there are indeed many famous and great judges associated with Harvard Law School.  In addition to Justices Brandeis, Holmes, Brennan, and Frankfurter, the following alumni were, or are, justices on the U.S. Supreme Court:

  • Harry Blackmun
  • Stephen Breyer
  • Harold Hitz Burton
  • Benjamin Curtis
  • Anthony Kennedy
  • Lewis Powell
  • John G. Roberts
  • Edward T. Sanford
  • Antonin Scalia
  • David Souter

Notable Harvard Law School alumni include dozens of federal court judges (including Learned Hand) and state judges, numerous United States Attorneys General, United States Senators and Representatives, state Governors, law professors, diplomatic figures, and cabinet advisors.  Two U.S. presidents graduated from Harvard Law School: Rutherford Hayes and Barack Obama.

Conclusion:

Ms. Kagan needs to be asked during her confirmation hearings whether she agrees with her “judicial hero” on the scope of the law.  Does she reject the American legal principle of the non- justiciability of political questions?  Does she favor opening the Supreme Court to any private citizen’s petition on any matter, even absent a personal harm as required by the American principle of standing?  She should be asked why she is the proudest of Judge Barak’s association with Harvard Law School over the vast number of distinguished Americans who have made lasting contributions to our nation’s legal system.


[1] http://www.senate.gov/fplayers/I2009/urlOfficeOpenPlayer.cfm?fn=9093039100519112912.

[2] “Israel’s Aharon Barak Receives 2006 Gruber Justice Prize.” http://www.gruberprizes.org/PressReleases/PressRelease_2006_Justice.php

[3] http://www.senate.gov/fplayers/I2009/urlOfficeOpenPlayer.cfm?fn=9093039100519112912.

[4] Aharon Barak, The Judge in a Democracy. Princeton: Princeton University Press. 2006. 179.

[5] Ibid., 193.

03 Jun 2010
 
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