The Real Elena Kagan


By: Brooks A. Mick

She seems like a sweet enough person, not very scary to look at. A bit grandmotherly even if a bit young for that. But by golly she does scare me.

What I am really afraid of is not Elena Kagan, but what she represents: Judicial activism run rampant. I saw this because of her extreme admiration for Barak. No, not Obama, but Aharon Barak, an Israeli judge who has literally written the book rationalizing activism on the bench. In 2006, Kagan referred to Barak as her “judicial hero.” “He is the judge who has best advanced democracy, human rights, the rule of law, and justice,” she said at an event honoring Barak, according to the Harvard Law Record. What exactly does this “judicial hero” espouse?

He states quite explicitly that he decides what justice is and thus specifically and willfully twists the law to mean something it did not initially mean. (Read that over if you can’t believe it.) He deliberately ignores the meaning and original intent of the law and decides cases so the outcome fits his personal opinion of what it should mean. What this means is that Barak espouses the tyranny of men (well, MAN, if you consider just him and his whims), but it would allow a tyranny of whichever political party is in power. By Barak’s explicit statements, one could readily see that congress could pass any law at all, constitutional or not, and if the president was also of the same political persuasion (currently the far left is in the saddle), and if activist judges of Barak’s persuasion were on the bench and agreed with the law, then it could be judged legal and constitution and in effect EVEN IF IT WERE BLATANTLY NOT CONSTITUTIONAL. The judge, you see, gets to believe whatever he wishes is right and twist the law to suit his own prejudices.

Any person who admired such a judge, one who would allow the tyranny of men over the rule of law, one who sets himself up as the arbiter of what a law should have meant to say, should be automatically disqualified from any bench, let alone the US Supreme Court.

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