Author Topic: Did Israel pick Kagan?: her 'Judicial hero' = Israeli Chief Justice Aharon Barak  (Read 13293 times)

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Offline Satyagraha

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If you've wondered how a woman who has never actually been a judge can get chosen for the Supreme Court, then perhaps it is because she came with powerful support backing her.

In her own words, Elena Kagan's "Judicial hero" is Israeli Chief Justice Aharon Barak. Israel does not yet have a constitution, so it's particularly interesting that her 'hero' is not a judge who has had to deal with constitutional issues. As we watch the circus at the confirmation hearings, we might actually learn more about how Elena Kagan thinks, and her her decisions may be influenced by the thoughts and opinions of her 'hero'.

Bork turns Kagan process into fight over Israeli justice
By Ami Eden · June 29, 2010

NEW YORK (JTA) -- It was an unexpected headline in an otherwise relatively mundane U.S. Supreme Court confirmation process: Bork tries to Bork Barak’s Elena Kagan with Barak card.

Like a ghost from confirmations past, failed Reagan nominee Robert Bork grabbed headlines last week when he spoke out against President Obama’s nomination of Elena Kagan to the high court. At the top of his complaint list: As dean of Harvard Law School, Kagan once referred to former Israeli Chief Justice Aharon Barak as her “judicial hero.”

Conservative bloggers quickly ran with Bork’s complaint, painting Barak as the prototypical liberal activist judge and insisting that Kagan’s praise of the Israeli justice was grounds for rejecting her nomination. By the weekend, a few Republican lawmakers were giving voice to the concerns, albeit in less absolute terms. Next, at least two GOP members of the Senate Judiciary Committee, Sens. Lindsay Graham (R-S.C.) and Jeffrey Sessions (R-Ala.), floated the issue in their opening statements on the first day of Kagan’s confirmation hearings.

And on Tuesday the issue took center stage, as U.S. Sen. Chuck Grassley (R-Iowa) put the question directly to Kagan -- who then unapologetically affirmed and explained her praise of Barak, saying it was rooted in her Jewishness and admiration for Israel.

"I am troubled by the fact that you hold up Barak as a judicial role model," Grassley said. "He's been described as creating a degree of judicial power undreamed of by most U.S. justices."

Grassley quoted Barak as saying that "a judge has a role" in the lawmaking process, and asked Kagan if she agreed. Kagan responded that she did not, but also noted that Barak operated in a fundamentally different system -- one without a written constitution.

"Justice Barak's philosophy is so different from anything that we would use or would want to use in the United States," she said.

Instead, Kagan added, she admired Barak for creating an independent judiciary in a young state surrounded by enemies.

"As you know, I don't think it's a secret I am Jewish," Kagan said. "The State of Israel has meant a lot to me and my family. And -- and I admire Justice Barak for what he's done for the State of Israel and ensuring an independent judiciary."

Sen. Patrick Leahy (D-Vt.), the committee chairman, exercised the rarely used prerogative of rebutting Grassley, quoting conservative judges who have praised Barak.

In Israel, Barak has been subject to criticism from the left and the right, both for his expansive notion of judicial powers in upholding democratic values and for deferring to national security considerations in a number of cases involving Palestinians.

"It's typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do," Bork said during a June 23 conference call organized by the anti-abortion group Americans United for Life in an effort to rally opposition to Kagan in the U.S. Senate. "That usually wears off as time passes and they get experience. But Ms. Kagan has not had time to develop a mature philosophy of judging. I would say her admiration for Barak, the Israeli justice, is a prime example. As I've said before, Barak might be the least competent judge on the planet."

Following Bork’s comments, liberals in the United States rushed to defend Barak and Kagan by noting that the Israeli justice has received praise as well from judicial conservatives, most notably U.S. Supreme Court Justice Antonin Scalia. A darling of conservatives, Scalia glowingly introduced Barak in March 2007 when he was honored by the American Association of Jewish Lawyers and Jurists (with the Supreme Court’s two Jewish members, Stephen Breyer and Ruth bader Ginsburg, in the audience).

In its report on the introduction, the Forward paraphrased Scalia as saying that “no other living jurist has had a greater impact on his own country’s legal system -- and perhaps on legal systems throughout the world.” According to the report, Scalia went on “to celebrate his fruitful and long-standing relationship with the Israeli judge, and to affirm a profound respect for the man -- one that trumped their fundamental philosophical, legal and constitutional disagreements.”

Told of Scalia’s remarks, Bork dismissed them as sounding “like politeness offered on a formal occasion.”

At the National Review Online, Ed Whelan argued that Scalia’s comments about Barak could not be compared to Kagan’s use of the phrase “my judicial hero.”

In an e-mail to JTA, David Twersky, a veteran journalist and analyst for Jewish organizations, recalled that at a New York Sun editorial dinner at the Harvard Club he asked Scalia about Barak.

“To my great surprise, he had nothing but good things to say and said he would never second-guess Barak,” Twersky said. “So I can tell you from personal experience that Bork is wrong.”

Twersky recalled Scalia as saying, “I mean they don’t even have a constitution over there.”

The Israel-lacks-a-constitution theme has been echoed in recent days by Barak’s defenders, who argue that the different legal traditions in Israel and the United States make it difficult to read too much into Kagan’s praise of Barak.

“Kagan wasn't saying that she would decide every U.S. issue the same way Barak would decide the same matter in Israel,” Aaron Zelinsky wrote in a column for the Huffington Post. Instead, added Zelinsky, an American who once clerked for Barak, Kagan “respected what he stood for and had accomplished, in particular the furtherance of ‘democracy, human rights, the rule of law, and justice.’ ”

The Orthox Union has taken issue with Barak’s record, accusing him of improperly attempting to “impose his ideological vision” on matters when Israel’s Jewish and democratic values are seemingly in conflict. But even as it reiterated those criticisms, the OU’s Washington blog -- like several other U.S. Jewish groups -- dismissed Bork’s attack on Kagan, suggesting her praise was merely “social convention.”

“Israel gets pulled into enough disputes around the world these days, and its Supreme Court continues to spark debates too,” the OU blog declared. “Can’t Judge Bork and the rest of Kagan’s opponents find something else -- and less bizarre -- to attack her with?”

Both the OU and the Reform movement waded into the confirmation process, though they stopped short of taking an actual position on the nominee.

In a letter to U.S. Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.), the OU said it found Kagan's record "encouraging." It noted her repudiation in confirmation hearings of her 1987 memo, when she clerked for the late Supreme Court Justice Thurgood Marshall, rejecting any government funding for faith-based charities providing social services.

The OU also noted memos she wrote as a domestic adviser to President Clinton backing religious freedoms in the workplace.

The Reform movement, meantime, forwarded to the Judiciary Committee members what it considered to be the most compelling questions it solicited from its membership on the website

"What limits does the Establishment Clause place on government funding that flows to faith-based organizations?" was one question.

"Do states have a right to define marriage as solely between a man and a woman? What should be the Federal role concerning marriage?" was another.

Nancy Ratzan, the president of the National Council of Jewish Women, issued a statement rejecting Bork’s criticism of Kagan and promised that the NCJW would continue to push its members to take action in support of her nomination.

Kagan's Jewishness also took center stage later in the day. Graham, probing Kagan on threats to the United States, asked her if she was unnerved by the Christmas day bomber: "Where were you on Christmas Day?"

"Like all Jews," she responded, "I was probably at a Chinese restaurant."

"I could almost see this one coming," Leahy quipped.

Then Sen. Chuck Schumer (D-N.Y.) jumped in: "Those are the only restaurants that are open!"


Aharon Barak's Revolution
Hillel Neuer

In recent years, the state of Israel has undergone a constitutional revolution that has remarkably escaped the notice of most Israelis. With the 1992 passage of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, the power of the Israeli judiciary has expanded dramatically, to include the ability to strike down Knesset legislation that in the Supreme Court's opinion violates normative human rights guarantees.(1) Although the court has yet to play that particular card, every indication is that even if Israel does not adopt a formal constitution, the day is not far off when laws passed by the Knesset will routinely face the review of a Supreme Court charged with the duty of protecting an entrenched set of superceding legal norms.

The 1992 laws represent a dramatic step towards the constitutionalization of Israeli law, a trend captained by the country's much-admired Supreme Court. Since the early years of the state, the court has proven willing and able to discern, infer or interpret protection of individual rights within the law, despite the absence of explicit statutory authorization to do so.(2) The sudden appearance of the 1992 statutes, overtly welcomed by an activist court, meant that for the first time the judiciary could anchor its protection of rights in the solid ground of black-letter law which, it has taken great pains to show, is also constitutional in nature.

Leading the charge of this judicial vanguard is Aharon Barak, a Supreme Court justice since 1978 and the court's president since 1995. Prior to the 1992 Basic Laws, Barak consistently and successfully challenged the traditional legal doctrines limiting the court's purview, and encouraged the court's intercession in an ever-growing range of issues. The laws' passage and Barak's ascendance to the presidency have dramatically improved his ability to champion the constitutional revolution.

Considering that his stewardship of the court
is to last for another decade, Aharon Barak may well be
the single most influential person in Israeli public life today.

Barak has famously portrayed the legal and judicial system as an orchestra of different musicians, with the Supreme Court as the conductor who assures synchronization and coordination.(3) If so, Barak is the undisputed conductor of conductors. Over a judicial career spanning nearly twenty years, Barak has developed and implemented a radical judicial philosophy based on the application of legal criteria to an unprecedentedly wide array of circumstances-with the result that today virtually every controversy of Israeli public life ends up, sooner rather than later, in a courtroom. The Supreme Court's unprecedented power to shape the ideological debate in Israel demands a closer look at Aharon Barak's judicial worldview, and in particular his views on the role of the court in a democratic society and on the new Basic Law provisions enshrining the values of Israel as a "Jewish and democratic" state.

Aharon Barak was born in Kovno, Lithuania in 1936, survived the war in the ghetto there, and immigrated to Israel in 1947 with his parents. Intellectually precocious, his curriculum vitae is a spectacular array of accomplishments, which have earned him praise as "the law's first genuine superstar."(4) He completed his first degree at the Hebrew University law faculty at age 22, received his doctorate in law there at 27, and by 32 rose to become a tenured professor. In 1974, at age 38, Barak was appointed dean of the law faculty at Hebrew University, and the year after was awarded the Israel Prize for law. Having reached the pinnacle of Israeli legal academia, Barak was appointed attorney-general, a post he held from 1975 to 1978. In that capacity, he made his mark by boldly prosecuting senior figures including Asher Yadlin, head of the Kupat Holim Clalit health fund and a leading candidate to head the Bank of Israel; Avraham Ofer, the minister of housing; and Leah Rabin, wife of then-Prime Minister Yitzhak Rabin.

During the talks leading up to the Camp David accords in September 1978, Prime Minister Menachem Begin invited Barak to join the Israeli negotiating team.

Highly esteemed by both Begin and Jimmy Carter (the latter was so impressed
with Barak that he jokingly offered him a seat on the U.S. Supreme Court)

Barak played an important role as legal adviser, drafter and intermediary. When Begin resisted adding the term "legitimate" to the phrase "rights of the Palestinian people," it was Aharon Barak who convinced him by arguing, "Can there be any rights which are not legitimate?"(5) In 1978, Barak was named to Israel's Supreme Court, and became the court's deputy president in 1993. When Meir Shamgar retired in 1995, Barak succeeded him as Supreme Court president, a post he is slated to hold until he reaches the retirement age of seventy in 2006.

Barak's legal philosophy begins with the belief that "the world is filled with law." This idea, which Barak describes as his defining vision, portrays law as an all-encompassing framework of human affairs, from which no action can ever be immune: Whatever the law does not prohibit, it permits; either way, the law always has its say, on everything.(6) The notion recurs inevitably, in some form or other, in most of Barak's writings and decisions on the role of the court in society. As he expressed it in a 1992 article,

    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.(7)

Barak's doctrine of the ubiquity of law guides his formulation of other bedrock principles of governmental and jurisprudential theory, such as the rule of law, judicial review, justiciability and standing, separation of powers and constitutional supremacy. Each of these concepts in turn plays a critical role in building Barak's vision of an enlightened and properly functioning democracy-one in which no person, institution or decision is bereft of the law's embrace.

Yet that embrace is a fleeting one where governments are concerned. Driven by a wide variety of concerns other than law, executives and legislatures often disregard their obligation to work only within its framework.(8) The judiciary's role, according to Barak, is to protect fiercely the rule of law in a democratic society by ensuring the accessibility of the courts, demanding that legislation be clear, stable, general and publicized, and, above all, by keeping the actions of government under its ever-watchful eye. Only then can individual rights-the principal victim of government lawlessness-possess any meaning in practice, defended by the judiciary alone against the executive and legislative powers, who in the name of the public good are forever trampling upon the individual's just claims.(9)

Inasmuch as the courts are the watchdog against government malfeasance, they require the power to enforce their opinion on as much as possible of what the government does. Whatever government actions or decisions are immune from judicial review have, according to Barak, escaped the reach of the law. And where the law does not shine, lives illegality and injustice.

The court's capacity to protect the rule of law, however, is limited by the judge's inherently passive role. No matter how much a government action may offend his sensibilities, a judge can only review a case that actually comes before him in court, and even then only if the complainant has a sufficiently direct interest in the case, and if the issue at hand is of the sort that courts are allowed to adjudicate. The more cases thrown out of court because they lack one of these prerequisites, the greater the hindrance to the judiciary's ability to police the government via judicial review. It is out of this motivation that Aharon Barak advocates wide open rules on standing, and holds almost radical views with respect to its twin sister, justiciability.

The doctrine of locus standi, or "standing," has traditionally dictated that only a party who has some substantive relation to the case-that is, someone who has suffered injury to a right or personal interest-can be heard. This restriction has long been regarded as an important means for courts to protect themselves from being overwhelmed by what the legal literature calls "unnecessary" litigation-cases that really do not require a judicial remedy, whose adjudication only distracts the court from its proper business.

For Aharon Barak, however, the court's workload is less important than its unique role in protecting the rule of law-for "where there is no judge, there is no law."(10) Traditional application of the doctrine of standing, according to Barak, harms the rule of law by opening the door to government illegalities: "When the court does not become involved, the principle of the rule of law is damaged. A government which knows in advance that it is not subject to judicial review is a government which might not enforce the law and might cause its breach-all this under the shadow of the standing doctrine."(11)

In a recent appearance before the Knesset Law Committee, Barak revealed the personal origin of his beliefs on standing. While serving as attorney-general in 1977, he was confronted with a scandal that erupted over an illegal U.S. bank account maintained by Leah Rabin, wife of the sitting prime minister. Finance Minister Yehoshua Rabinowitz informed Barak of his intention to levy an administrative fine as a way to preempt criminal charges. When Rabinowitz admitted that his real concern was for the Labor government's reelection prospects, Barak protested that the fine would never stand up in court. According to Barak, Rabinowitz responded: "No one has standing-who will go [to court]?" Barak's resultant indignation drove him to a fateful conclusion: "I said to myself, if ever I am able to have an influence, the standing rules must be liberalized; it cannot be that only someone with an interest [can make such a challenge]."(12)

With the passage of time, Barak gained the ability to have an influence, and liberalize he did. The traditional practice in Israel had been that in the area of private law, a suing party had to show that a personal right had been infringed upon, whereas in matters involving a public or governmental body, a petitioner only had to have a personal interest in the matter to be heard. In Barak's view, however, the courts needed not require even a personal interest in such public cases: Anyone seeking a judicial decision on an issue that involved a substantive violation of the rule of law, or in a matter which the court deemed to be in the "public interest," merited standing.(13) As Barak's vigorously-advanced approach gained currency among his peers on the bench, the Supreme Court in effect transformed a petitioner with no personal interest into the bearer of a right-the right of the individual to assure legality in government.

Alongside his liberalization of the rules of standing, Barak also succeeded in whittling away the restrictions stemming from a related judiciary concept, known as "justiciability." Whereas standing determines which party the court will hear, justiciability determines which issue the court will hear.(14) The justiciability standard is classically used to exclude from judicial consideration a range of policy questions, such as the conduct of foreign affairs, best left in the hands of the executive or legislature. By keeping such issues out of the judiciary's reach, the justiciability doctrine immunizes entire areas of governmental action from the law's watchful eye-a state of affairs deemed intolerable by Barak and his like-minded colleagues.

Over the course of many Supreme Court rulings under the presidency of Meir Shamgar from 1983 to 1995, then-justice Barak's lengthy judgments began to have their effect, and justiciability rules were dramatically liberalized. A significant blow was struck in the 1986 Ressler decision-which today serves as a case study in the evolution of court accessibility in Israel.(15) In 1970, a petitioner complained to the High Court of Justice(16) that the defense minister had abused his discretion in granting exemptions from military service to yeshiva students. The court found that the issue was a "political question" not appropriate for a judicial decision, and that the petitioner failed to establish that he suffered any personal damage; the petition was dismissed.(17) In 1981, another petitioner, attorney Yehuda Ressler, went to court with the same complaint. The court held that the question lacked legal criteria according to which a court could reach a decision, and that it was a public issue the solution of which should be left for non-judicial bodies. The court would not let itself be dragged into a "public and political controversy on a sensitive and stormy subject, on which public opinion is sharply divided."(18) Five years later, in 1986, Ressler tried again and, with Justice Barak and other, sympathetic judges on the panel, the court determined the matter to be justiciable (while denying the petition on its merits).(19) In his decision, Barak devoted twenty-five pages to the issue of justiciability, in which he set forth a philosophy whose implications extended well beyond the confines of the case.

In the Ressler decision, Barak delineated two classic categories of justiciability, normative and institutional.(20) Normative justiciability deals with the question of whether authentic legal criteria exist with which the court can decide a case before it; if there be no legal criteria with which to rule, the case is normatively non-justiciable, and the court cannot hear it. Institutional justiciability, on the other hand, deals with whether the subject matter of the case is "appropriate" for judicial decision; a court which invokes this reason for not hearing a case is saying that even if it could find a legal basis on which to rule, it considers some other branch of government the more appropriate venue for making the decision. Aharon Barak is not too fond of either type.

A finding of normative non-justiciability is literally inconceivable in the Barak worldview, because there can exist no legal void. The law can never be silent, and that which is not proscribed by the law is permitted by the law: "There are no acts (of commission or omission) to which the law does not apply. Every act is caught within the world of law. Every act can be 'imprisoned' within the framework of law. Even the activity bearing the greatest political character-such as making war or peace-is examinable by judicial criteria."(21)

Such a position, however, does not necessarily exclude the argument of institutional non-justiciability, the idea that there are some areas where it is "inappropriate" for a court to intervene because the separation of powers at times mandates judicial deference to executive discretion or parliamentary independence. Yet even here, Barak balks at the prospect of restricting the courts. First, he cites a prima facie problem with institutional non-justiciability. Once we accept a legal philosophy that finds the juridical in everything, and which thus grants the court virtually limitless jurisdiction, where does the court draw authority to turn away a dispute tendered before it? The tables are turned: It is precisely the refusal of the court to judge an issue of a political nature which would constitute "political thinking," and which is therefore inappropriate for the court. Even in a dispute of a political nature, argues Barak, judges are amply equipped to apply legal criteria.(22) Any time a court declares an issue too "political" and hence "inappropriate" for judicial intervention, the court is essentially granting the government freedom to act outside the law.

By virtually doing away with institutional non-justiciability, Barak challenges the common conception of the separation of powers, in which the essential tasks of governance are divided among the three branches of government in accordance with the perceived strengths of each. Departing from the classic understanding of the separation doctrine, which discourages courts from intervening in political questions best left to more representative branches of government, Barak invokes the separation of powers to justify court intervention in the activities of the legislature and the executive.(23) True, Barak writes, separation of powers places two limitations on the judiciary: It obligates the judge to give effect to the policy behind a law passed by the government, and it bars a judge from intervening in government actions that are technically legal and fall within a "zone of reasonableness."(24) Nonetheless, the separation of powers does not imply to Barak the dictatorship of each authority within its own sphere. Instead, Barak advocates a set of relations that foster "non-dependence by defined mutual supervision."(25) Even the term "separation of powers" is misleading, since between the branches stand not walls but "bridges which supervise and balance."(26) The purpose of this delicate equilibrium is not effective government per se; rather, what ultimately motivates the compartmentalization of power and the harnessing of authority is a desire to safeguard the freedom of the individual.(27) With mutual supervision essential and rights at stake, the Supreme Court, entrusted by society to safeguard the rule of law and protect individual rights, must take a most active role in reviewing the activities of the executive and legislature.

Aharon Barak's dilution of the justiciability doctrine is almost perfect. Only two exceptions remain, both of which relate to the image of the court. First, he recognizes that society may not want the court to tread on certain areas considered best left to political decisionmakers. In certain highly politicized cases such as those involving the Oslo peace process, Barak and the majority of the justices have in fact chosen not to intervene.(28) In such cases, the court should restrict itself to making sure that government action violates no explicit law; if the government feels its discretion is excessively constricted by the law, it can always pass an amendment. The second possibility of institutional non-justiciability, says Barak, is in a case where justice may "seem not to have been done," where court action itself undermines public confidence in the judiciary.(29) Even then, insists Barak, the court must bear in mind its duty to protect the rule of law, and consider the possibility that non-intervention may inflict the greater harm to public confidence.(30)

But in the absence of these exceptions, concludes Barak, the courts must be allowed to exercise judicial review on the widest possible range of issues to ensure that every public body acts within the law.(31) Traditional rules of standing and justiciability cannot be allowed to get in the way of judicial review-and indeed, they have not. President Barak and his fellow justices have ruled in recent years on governmental decisions and actions which in the past were denied review: In Ressler, the granting of draft deferrals to yeshiva students; in Sarid v. Knesset Speaker and later cases, the procedural validity of Knesset decisions; in Barzilai v. Government of Israel, the power of Israel's president to grant pre-conviction pardons; and in Zherzhevsky v. Prime Minister, the legality of political agreements.(32) Israeli law on standing has become, according to McGill University law professor Irwin Cotler, "the broadest of any parliamentary democracy in the world," while "the law on 'justiciability' ... is also the broadest of any democracy."(33)

In casting the Supreme Court's net so wide, Aharon Barak has succeeded in attaining a high level of protection of the rule of law. No government official in Israel today is likely to imagine that his actions cannot be brought before the Barak Court; indeed, a sizable number of government moves have already met this fate. Yet the vigorous enforcement of the "rule of law" has gone hand in hand with the dominion by judges over an ever-expanding empire, and has brought with it a number of serious difficulties for the political system, and for society as a whole.

The problems begin in the theoretical realm, with the presumption that "the world is filled with law." This expression should sound familiar to anyone versed in Jewish liturgy: Twice a day in the traditional prayers, the congregation affirms that "the world is filled with his glory."(34) As the Europeans once appropriated the concept of divine sovereignty for the state, Barak fills the world not with God's "glory" but with the law of the land. Indeed, one could easily mistake Barak's application of law to "every human behavior" (including "subjective thoughts") and to "every act of commission or omission"-for a description of the orthodox halacha. As a religious and moral code, halacha is frequently described as a legal system applicable to every aspect of human existence, from the bedroom to the boardroom to the battlefield. Rarely, though, does one conceive of Israeli law in similar terms.(35)

A danger inherent in these maximalist views, and which threatens to grow over time,
is the blurring between the juridical and other spheres, especially the political.
Such a distortion begins on the level of theory and ends in a judiciary willing
to bring about ... the "legalization of life."(36)

There is hardly a single issue of national importance in Israel which does not quickly turn up in the Supreme Court. When the latter sits as High Court of Justice, a court of first and last instance, Israeli citizens enjoy the rare luxury of immediate and inexpensive access to the highest court in the land.(37) Domestic policy matters are now taken to the High Court shortly after, or even before, they have been resolved by policymakers. Media coverage of government action invariably includes an extensive report of how petitions against the move are faring, and how the court is likely to rule.

The effect of the legalization of Israeli life goes beyond the specifics of individual court cases. "The arrangement of relationships and spheres of activity in a legal fashion as a substitute for social and moral arrangements," wrote Rosen-Zvi, "introduces a dimension of formalism into life, and causes questions concerning values to be dealt with by formal tools."(38) Rather than allowing the political process to handle problems through consensus-building and compromises, the current system encourages the reduction of value-laden issues to technical legal questions, to be resolved by adjudication. The political process, for all its flaws, is quite adept at balancing the interests of the great bulk of the citizenry and reflecting its values; the decisions it produces are, in the aggregate, likely to satisfy the largest number of people while angering the fewest. The formalized judicial process, on the other hand, is not built to take into account these interests and values, and can easily produce decisions that impose the will of a small minority upon the majority.

But beyond the risk of distorting the public's values, too much intervention harms the nation's political culture. In Israel, government officials have learned to fear public law, rather than the public itself. Judicial micro-governance creates the impression that anything that stands the test of the High Court need not stand the test of public opinion. Citizens find their inclination to police elected leaders numbed, and politicians learn to measure their actions against a jurisprudential yardstick, rather than one of propriety or voter opinion. In most democracies, by contrast, it is the looming ballot box and not the judiciary which effectively vetoes ill-considered political appointments and serves as the principal check on government wrongdoing. A measure of judicial restraint on certain key issues would encourage government accountability to the people, not just to the bench.

(More, including references, at source link)

And  the King shall answer and say unto them, Verily I say unto you, 
Inasmuch as ye have done it unto one of the least of these my brethren,  ye have done it unto me.

Matthew 25:40

Offline Satyagraha

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Kagan Judicial Hero: Most Activist Judge in the World
By Bob Ellis on June 29th, 2010

Video at this link

President Barack Obama’s Supreme Court nominee Elena Kagan may claim she’ll give deference to the branch of our government charged with creating law, but one has to wonder.

Kagan has said that Israeli Judge Aharon Barak is her hero.  We tend to choose our heroes as people we want to be like, people we try to emulate, and someone who believes as we do.

So what kind of “hero” is Aharon Barak?  Some believe he is the worst, most activist judge on the planet.

Barak has made “deferential” statements like these:

   “The judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing the statute itself. The statue remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs.”

Barak is an elitist of the highest order, believing only judges should have the authority to remove other judges, judges should get to decide if a free people change their constitution, and that judges have the final say in all governmental matters.  In other words, he believes in an oligarchy of judges rather than a republic.

The Catholic Exchange reports

    * Barak held that the “basic laws” passed by the Knesset, Israel’s parliament, could never be repealed.

    * Barak “claim[ed] the right to judge the deployment of troops in wartime.”

    * Barak holds that judges “cannot be removed by the legislature but only by other judges.”

    * Barak “takes for granted that judges have inherent authority to override statutes.”

    * Barak converted the term “separation of powers” into the proposition that “the executive and legislative branches are to have no degree of control over the judicial branch.”

    * Barak stated that government action that is “unreasonable” is illegal (“put simply, the executive must act reasonably, for an unreasonable act is an unlawful act”);

    * Barak argued that in the name of “human dignity” a court can compel the government to alleviate homelessness and poverty;

    * Barak held that a court can countermand military orders, decide “whether to prevent the release of a terrorist within the framework of a political ‘package deal,’” and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank.

Recognizing Barak as Kagan’s judicial role model makes all of Kagan’s sugar-coated claims of respect for the Constitution and the American system of government ring rather hollow.

We already have too many on the U.S. Supreme Court right now who believe in this elitist, oligarchic approach to government in America.  We really don’t need to replace a retiring one with a fresh one; we need a Supreme Court justice who respects the U.S. Constitution and will keep themselves under its authority, not the other way around.
And  the King shall answer and say unto them, Verily I say unto you, 
Inasmuch as ye have done it unto one of the least of these my brethren,  ye have done it unto me.

Matthew 25:40

Offline Satyagraha

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And now for a word from the Israeli 'left' media...

Published 05:20 02.07.10Latest update 05:20 02.07.10
Is U.S. Supreme Court nominee Elena Kagan a new hero for Israel?

A chance remark at Elena Kagan's confirmation hearings offers lessons for both Israelis and Diaspora Jews
By Anshel Pfeffer

I don't know how many of this column's readers are following the confirmation hearings in the United States Senate for President Barack Obama's latest Supreme Court nominee, Elena Kagan. I assume that many have seen some report on the proposed new Jewish justice, and the tiny little anti-Semite inside each of us has registered the fact that there will now be no less than three crossers of the Red Sea on the court's bench, a full third of the exclusive club.

But the hearings, especially the questioning by the naturally hostile Republican senators, have taken an interesting turn that should grab the attention of Jewish and Israeli readers. It seems that due to a lack of information on Kagan's positions, the Republicans who are trying to prove her unsuitability for the job have latched on to her apparent admiration for the former president of Israel's Supreme Court, Aharon Barak. Four years ago, at a reception for Barak at Harvard, where Kagan was then dean of the law school, she apparently said that he was her "judicial hero."

Ironically, it is some of Israel's most stalwart supporters in the Senate who find her affinity for Barak irksome and have quizzed her about what she meant. Of course, there is nothing sinister about this. The Republicans have to use something, and since Barak is a liberal standard-bearer for judicial activism, it would be only natural for conservatives to ask whether Kagan is also predisposed to legal interventionism.

The Anti-Defamation League's Abraham Foxman has termed some of the comments made by Republican senators about Kagan's "Upper West Side" background "disturbing" and "inappropriate," as if this were an insidious anti-Semitic phrase. That is the kind of ridiculous overreaction that we have come to expect from Foxman, but maybe that is what his donors like to hear.

Kagan certainly had no need of his defense. When asked about her whereabouts on Christmas Day, in an attempt to gauge her reactions to the botched suicide bombing attack on an airliner over Detroit, she said, "like all Jews, I was probably at a Chinese restaurant." She thereby proved another thing about Jews: that when we're in a tight corner, our sense of humor can always save us.

And she certainly can't be faulted for her answer to the queries on her attitude toward Barak. "As you know, I don't think it's a secret I am Jewish," she said. "The State of Israel has meant a lot to me and my family. And ... I admire Justice Barak for what he's done for the State of Israel and ensuring an independent judiciary."

I don't know what light this may shed on her judicial positions. But I can't remember the last time a prominent Jew anywhere in the world found it so easy and natural to express his or her Jewishness, connection to Israel and appreciation for an Israeli who is neither a politician nor a general.

I am naturally skeptical of anyone who is described as a hero. In the case of Barak, no one can take away his major achievements in strengthening the role of the legal system and the rule of law in the three decades between his appointment as attorney general and his retirement from the Supreme Court four years ago. But the uncritical attitude toward him in wide swathes of the legal establishment and the media have rendered a true appreciation of his legacy impossible, and ultimately endangered its durability.

Messiah-worship is a phenomenon in no way limited to religious people. Twelve years ago, in a closed briefing for journalists by then-chief justice Barak, I leaned over to whisper an ironic comment in the ear of a colleague, normally one of the most irreverent and cynical people I have ever met. "Shush," he hushed me, "can't you see that the man is a giant?"

I'm not sure who first coined the title Ha'admor Hahiloni ("the secular rebbe" ) for Barak, or even whether it was a secular or religious writer, but it is particularly apt. The mystical reverence Hasidim have for their Admor - an acronym for master, teacher and rabbi - and their lack of objectivity and willingness to believe anything he says is very reminiscent of the way many of Barak's secular acolytes perceive him.

But they fail to see his big mistakes: his refusal to make any attempt to secure public consensus for his drive to elevate the Basic Laws to the level of a national constitution, and the way he stacked the court with like-minded liberals, eventually isolated it from the majority of Israeli society. That led inevitably to the current situation, in which under the presidency of Dorit Beinisch, who enjoys none of Barak's stature, the court is rapidly losing the public's support and trust.

The tragedy of Aharon Barak is that he was the only judge whom Israelis, even those who disagreed with him, truly respected. On Wednesday, I happened to be at the Israel Defense Forces Officer School near Mitzpeh Ramon an hour before the graduation of the latest crop of cadets. Hundreds of excited family members were milling around on the temporary picnic ground when a Blackhawk helicopter landed and out jumped the chief of staff, Lt. Gen. Gabi Ashkenazi. He was almost immediately mobbed by members of the public eager to shake his hand.

"They really love him," observed a seasoned officer, "which is nice, but also disturbing in a way." He had a point. Ashkenazi revitalized the IDF from its feeling of abject failure in the Second Lebanon War, and Israelis naturally feel grateful to the man who restored faith in the nation's favorite institution. But the huge popularity of a general is a definite sign of immaturity in Israeli democracy - and, above all, of the absence of people who command respect in public life.

When our government is headed by Benjamin Netanyahu, Avigdor Lieberman and that other Barak, Ehud, and there is no effective opposition, we naturally look for leaders elsewhere. Aharon Barak was such a leader, but he groomed no successors. The fact that right now, the only new and admired leader on the horizon is yet another general is a deep disappointment both to Israelis and to Jews around the world, who justifiably had higher expectations of a Jewish democracy.

Maybe the newest member of the U.S. Supreme Court can set a good example of how to be a loyal citizen of one's country while remaining cool and good-humored about a Jew's natural affinity for the Jewish state. She didn't have to say it. But if Barak is indeed her hero, then she is certainly fully aware of Israel's many faults and failures in its aspiration to be both a Jewish and a democratic state.

Those chance remarks at her confirmation hearings can serve as an example for many Jews who are baffled nowadays at how to express their support for a country they love, but which is veering tragically off-course. An example of how to be true friends, not Pavlovian cheerleaders. And Israelis should certainly be grateful to Elena Kagan for pointing out that we can find heroes outside the officers corps.
And  the King shall answer and say unto them, Verily I say unto you, 
Inasmuch as ye have done it unto one of the least of these my brethren,  ye have done it unto me.

Matthew 25:40

Offline Dig

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She does not give a shit about any country, religion, race. She works for Goldman Sachs and the East India Trading Company. All the tentacles of the octopus support this obvious agent for the Bilderberg Empirialists.

Abe Foxman and the ADL are the public relations arm of the East India Trading Company.

She is a slave to push the transhumanist agenda, the eugenics end game.
All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately

Offline Satyagraha

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Did Kagan Cover for Dershowitz’s Plagiarism?
5th July 2010
News Release
June 30, 2010

While Supreme Court nominee Elena Kagan has been extensively questioned in her hearings about her tenure as dean of Harvard Law School regarding military recruiters on campus, her role in a controversy involving charges of plagiarism against Harvard Law School Professor Alan Dershowitz (as well as other plagiarism scandals which erupted while she was head of HLS) has been virtually ignored.

On Tuesday, when Sen. Jon Kyl asked about her basic approach to judging, Kagan said: “My deanship was a good example … the kind of consideration that I’ve given to different arguments, the kind of fairness that I’ve shown in making decisions.” At 15:20 on YouTube video.

Senate Judiciary Committee Chairman Patrick Leahy said of Kagan that there is “no reason to question her integrity.” But some analysts question whether Kagan showed the capacity to rule fairly, which is required of a good judge, in the Dershowitz plagiarism case.


Obenzinger teaches American literature and writing at Stanford University. His books include American Palestine: Melville, Twain and the Holy Land Mania. He said today: “Norman Finkelstein, then at DePaul University, accused Dershowitz in 2003 of plagiarizing from Joan Peters’ 1984 book ‘From Time Immemorial,’ which was recognized as a work of propaganda by many in Israel, but was praised by many backers of Israeli politics in the United States. Finkelstein years ago helped show that Peters’ book was scholarly worthless. Peters’ argument is that most of today’s Palestinians did not live there. This is a similar argument as other colonizers, such as the British in North America. As Anthony Lewis titled his New York Times column at the time that dismissed Peters’ argument: ‘There Were No Indians.’

“Peters employs Twain (as does Dershowitz) because he is the quintessential American writer, and so his witness, so to speak, is authoritative. While Twain is a great truth teller, he can also be the biggest liar. His words should never be used to justify colonial expropriation — which is what Peters (and by extension Dershowitz) do — and in other writing Twain was a sharp critic of colonialism. Dershowitz’s vicious attacks on Finkelstein, and his crude intervention in Finkelstein’s tenure case, and the fact that DePaul and Harvard allowed it to happen, is really what’s at issue. And underlying all of Dershowitz’s attacks is his ferocious rejection of any serious criticisms of Israel’s policies. As for the connection with Kagan (and Harvard’s then-President Larry Summers), they probably share Dershowitz’s viewpoint. Unfortunately in academia, it’s a matter of Dershowitz being more powerful and being politically aligned with powerful people, not Finkelstein being right.” Obenzinger’s other books include Running Through Fire: How I Survived the Holocaust by Zosia Goldberg as told to Hilton Obenzinger.


Menetrez just wrote the piece “Elena Kagan’s Harvard: Golden Age or Reign of Error?” The piece states: “When Elena Kagan was dean of Harvard Law School, her mishandling of a plagiarism case cost an innocent person his job while allowing the plagiarist, Professor Alan Dershowitz, to escape punishment. …

“In 2003, an untenured professor at DePaul University named Norman Finkelstein accused Dershowitz of plagiarism. Dean Kagan ordered an investigation the following year. The investigation completely cleared Dershowitz, concluding that no plagiarism had occurred.

“Harvard is the nation’s most prestigious institution of higher learning, so its vindication of Dershowitz was widely perceived as definitive. Armed with that vindication, Dershowitz relentlessly attacked Finkelstein in letters to DePaul faculty and every available media outlet. Those attacks would likely have been dismissed as sour grapes if the Kagan-ordered investigation had come out the other way.

“My independent research later revealed, however, that Dershowitz did in fact commit plagiarism and that no honest and competent investigation could have missed it. … The case against Dershowitz seemed to be supported by powerful evidence. Finkelstein argued that Dershowitz’s book ‘The Case for Israel’ contained obvious errors that were identical to errors in an earlier book by a different author, so Dershowitz must have just copied that author’s work, errors and all. Finkelstein explained the point in detail in an exchange with Dershowitz that was published in The Harvard Crimson in October 2003.

“The identical errors issue was consequently well known and central to the plagiarism dispute when Kagan ordered an investigation in 2004. But the Kagan-commissioned investigation still concluded that no plagiarism had occurred. What happened? Were there really no identical errors after all?

“I decided to check for myself, and I quickly discovered enough identical errors to prove the plagiarism charge against Dershowitz beyond any reasonable doubt. I looked at one of the passages identified by Finkelstein, a long quotation from Mark Twain, and found that Dershowitz’s version of the quotation and the version in the book Dershowitz was accused of plagiarizing contained 20 identical errors in a mere 21 lines of text. Some of the errors were large (such as the omission of 87 pages of text without an ellipsis) and some were small (such as altered or missing words or punctuation), but the cumulative weight of the evidence was overwhelming. There was no way Dershowitz could have independently generated exactly those 20 errors — he must have copied them. It was an open-and-shut case.

So what exactly did the Kagan-commissioned investigation look at? Did it address the identical errors issue? (I put that question to the Harvard Law School administration myself when Kagan was still dean, but they refused to answer.) …

“Granted, these questions might seem of limited significance for Kagan’s Supreme Court nomination. The answers will not tell us what she thinks about originalism or abortion or the scope of federal executive power. But they are still relevant, because they will shed light on something equally important. In the end, all of us will be forced to assess Kagan on the basis of what we make of her character, because the written record of her judicial philosophy is so sparse.”

Background: Menetrez also wrote the piece “Dershowitz v. Finkelstein: Who’s Right and Who’s Wrong?” — an updated and expanded version of that piece was published as an epilogue to the paperback version of Norman Finkelstein’s book Beyond Chutzpah: On the Misuse of Anti-Semitism and the Abuse of History. The book was published by the University of California Press; while the first edition was being edited, Dershowitz wrote to California Gov. Arnold Schwarzenegger about the publication of the book urging him to “prevent this impending tragedy.”

See PDFs of relevant text from Dershowitz, Peters and Twain to verify that Dershowitz copied Peters’ errors.

See letter in The Harvard Crimson “Finkelstein Proclaims ‘The Glove Does Fit‘” from 2003.

At one point in the controversy, Dershowitz claimed that Finkelstein thought his own mother was a Nazi collaborator. Dershowitz posted this to his Harvard web page. Finkelstein objected to this to Kagan to no avail.
And  the King shall answer and say unto them, Verily I say unto you, 
Inasmuch as ye have done it unto one of the least of these my brethren,  ye have done it unto me.

Matthew 25:40

Offline agentbluescreen

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What a poor choice for a "wise" Judge. Sounds like this fool would rather cut the two mothers in half.

Offline jack_2002

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« Reply #6 on: July 25, 2010, 03:00:05 pm »

elena kaganovitch + aharon barak:

reasons why e. k. admires barak so much & seeks to re-invent the u.s supreme court into a clone of the kangaroo court barak was prisiding over in israel:
1) barak invented warrantless arrest without probable cause, indefinite detention, the power to disappear victims into the "night & fog", enhanced interrogation (read torture), the whole 9 yards.
in fact, the rotten old war-criminal-pig actually entrenched all this into the political system.
2) barak invented the 30 meter high concrete prison wall which encircled palestinian lands which empowered the criminal government to hasten the genocide against the palestinians by starving them and blockading the supply of the basic necessities for life.
3) barak is the champion & protector of extremist radical zionist terrorist groups operating in israel committed to killing off every last palestinian man, woman and child. members of this faction were caught inside a palestinian living zone parking a powerfull trailer bomb right in between a palestinian school & palestinian hospital right next door to the school. fortunately for the palestinians the trailer & bomb were discovered & deactivated moments before it was timed to detonate.
israeli security forces know full well the identities of the terrorist perps but won't release info regarding apprension or punishment of these perps.
4) every war-criminal-genocidal agenda by the israeli gov. was legalized & sanctified by this old tyrant during his tenure.

there you have it!
now you know why this old corrupt hanging-judge is so admired by this warthog whom illegal-alien-soetarro and his gang of czars have chosen to remake the u.s. supreme court into a police state kangaroo-tribunal.

an important part of kaganovitch's agenda which is being ignored in the media is the fact that altho it's widely understood that the e.k. agenda is for dissapearing the first amendment and ofcourse the entire constitution and bill of rights; but understand that it also extends what she claims is the government's right to criminalize all speech, writings, and communications that are  not only public but also in private between individuals in private conversations which would be placed on the same legal level as public and published writings and speech. this explains and ties in with the accelerated feverish efforts by all these gov. spy agencies to use millions of microphones all over even in remote rural & wilderness areas which are tied into a.i. semantic capable computers so no "illegal" private conversation anywhere can escape detection by the pig state.

forget the comparison between kaganovitch and john wayne gacy altho i concede they both have an affinity for clown outfits; gacy was a "killer clown" while kaganovitch is still in the latent killer clown wannabe stage.

for a closer likeness to kaganovitch google up some pics of kaganovitch family relatik lazar kaganovitch (take a good look at pics of these 2 characters & note the resemblance!) who distinguished himself as stalin's right hand henchman during the purges and mass executions; other kaganovitches excelled as executioners and torturers in the gulags while many family members of this tribe distinguished themselves in the nkvd secret police and death squads because of their genetically-hard-wired propensity as natural born killers.

historically, the name/word kaganovitch means being descended from the KAGHANATE. most of these violent & rapacious invaders into ancient russia ended up converting to judaism during the middle ages when their fortress empire was starting to collapse and they were losing their grip on their empire over the native russian & turkic groups who had by now converted to christianity & islam.
when kaganovitchs started emigrating to the usa from russia they were attracted by all the financial opportunities made available to them by the powerfull zionist political establishment who encouraged and sponsored them so they could grow rich & fat & amass wealth and exploit the american political system which was sysematically being corrupted to transfer the commonwealth to the elites.

the kaganovitch name got chopped during emigration to "kagan" basically for 2 reasons:
1) in a wasp environment kagan sounds nicer and less alien than does a wierd foreign soundng name with long spelling; 2) being an immigrant with an alien sounding name associated with a violent rough reputation in the old country is a strong incentive to anglosize your name to something more innocous sounding in an english speaking culture.

elena kaganovitch
janet reno
sonia sotomayor
janet napolitano

the whole bloody lot of them are damnable bulldykes from hell!!

Offline larsonstdoc

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« Reply #7 on: July 25, 2010, 03:20:07 pm »
elena kaganovitch
janet reno
sonia sotomayor
janet napolitano

the whole bloody lot of them are damnable bulldykes from hell!!

  You are 100% correct!


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« Reply #8 on: July 25, 2010, 03:30:53 pm »
Add Hitlery Clitton to the list.  Why do these "women" hate humanity so much?  Are the elite harnessing them for their inbred natural anger?  :-\
"The receptivity of the great masses is very limited, their intelligence is small, and their power of forgetting is enormous." --Adolph Hitler, "Mein Kampf"

Offline Satyagraha

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Add Hitlery Clitton to the list.  Why do these "women" hate humanity so much?  Are the elite harnessing them for their inbred natural anger?  :-\

Oh, so now this is about bashing women?
Can't we stay on topic here?
Get a grip - there are bigger fish to fry than to start bashing an entire group (half the population in fact), because of some elitist nwo tools.

And  the King shall answer and say unto them, Verily I say unto you, 
Inasmuch as ye have done it unto one of the least of these my brethren,  ye have done it unto me.

Matthew 25:40

Offline jack_2002

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« Reply #10 on: July 26, 2010, 11:25:22 am »
Add Hitlery Clitton to the list.  Why do these "women" hate humanity so much?  Are the elite harnessing them for their inbred natural anger?  :-\

that's  a big 10-4.

these criminals from hell live out their waste-of-skin lives in the lap of luxury and derive so much physical pleasure from what they all do to little people.

i did'nt forget sludge willy's better half; she belongs in the "w###e from hell" slot.

Offline Satyagraha

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Senate confirms Kagan to the Supreme Court
« Reply #11 on: August 05, 2010, 05:36:11 pm »
News Alert: Senate confirms Kagan to the Supreme Court
03:23 PM EDT Thursday, August 5, 2010

The Senate confirmed Elena Kagan Thursday to the Supreme Court as the 112th justice and just the fourth woman ever to sit on the high court.

On a 63-37 vote, Kagan, 50, became President Obama’s second lifetime appointment to the court in the past year -- the vote was held 365 days after Justice Sonia Sotomayor won 68 votes for her confirmation as the first Latina justice ever. Five Senate Republicans supported Kagan after a
relatively smooth two-and-a-half-month journey from her nomination to succeed retired Justice John Paul Stevens to winning her appointment.

For more information, visit
And  the King shall answer and say unto them, Verily I say unto you, 
Inasmuch as ye have done it unto one of the least of these my brethren,  ye have done it unto me.

Matthew 25:40

Offline Secretthoughts

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women are 5 times more susceptible to hypnosis than men are.  you hear people talk about 'manchurian candidates', well, i'm sorry but the FACT is , scientific studies into hypnosis reveal women are EXTREMELY susceptible to hypnosis, simply by the nature of sexual nature of hypnosis.  The sexual will commands them and they obey.

 I'm not being mysogynistic, (unless being so may save all our lives), I'm just citing real scientific evidence.  And they KNOW I'm right, so you might as well know what THEY know.  Why else do you think they have pushed this whole feminist movement thing to such a crazy, bizarrre extreme?  Every other advertisement is some sort of militant feminist secret message to attack the white male.

Offline jofortruth

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Kagan had something to do with Obamacare before she was appointed to the Supreme Court. Then she gets to vote on Obamacare and doesn't recuse herself, once on the court.

Link to her Marxist thesis 1981!

Don't believe me. Look it up yourself!