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Scalia Polite Comments on Aharon Barak Misrepresented as Endorsement

Solicitor-General Elena Kagan’s admiration for the world’s leading agenda-driven judge, Aharon Barak, is a story that has gained tremendous momentum over the last week. Americans United for Life has worked for nearly seven weeks to draw attention to this critical issue – the issue Judge Robert Bork singled out as his leading cause for concern in last week’s AUL press teleconference on Kagan. In fact, Bork went on to say that Kagan’s admiration for Barak alone disqualifies her to serve on the Supreme Court.

“Justice Scalia and Judge Barak are judicial polar opposites,” said Dr. Charmaine Yoest, President and CEO of Americans United for Life. “Justice Scalia has worked to impartially interpret the law over his career. Aharon Barak, on the other hand, is the world’s leading agenda-driven judge and an advocate for ultimate judicial power.”


Scalia’s gracious remarks about Barak have been taken out of context. His comments were reported in a July 10, 2007 article in the Forward blog found here.

In it, reporter Benjamin Soskis wrote: “In singing Barak’s praises, Scalia then addressed the other obvious disparity between himself and the honoree. After 27 years of service, twelve as chief judge, Barak had established himself as one of the world’s foremost advocates of judicial activism. As perhaps the world’s leading expert on comparative constitutional law, he has also served as a lightning rod for those protesting the willingness of some American jurists to look toward foreign laws for instruction. Scalia happens to be one of the most vocal of those protesters, as well as one of the nation’s leading opponents of judicial activism.”

As any fair minded reader can see, Scalia was clearly offering kind words to someone he disagrees with on judicial policy. This basic politeness has been misrepresented as an endorsement.

Elena Kagan must answer serious questions about the man she called “my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice.”