Whelan attacks Kagan for admiring a judge that Fried called "superhuman"

Blog ››› ››› ADAM SHAH

Joining WorldNetDaily, Ed Whelan has repeatedly launched attacks against Solicitor General Elena Kagan for praising former Israeli Supreme Court Justice Aharon Barak. We previously pointed out that U.S. Supreme Court Justice Antonin Scalia has also praised Barak. But Whelan is not satisfied. Apparently, Scalia did not issue the right kind of praise in order to satisfy Whelan. (Although, Scalia reportedly was "singing Barak's praises" when he presented him with an award.) Well, here's another conservative who has praised Barak: Former Reagan administration Solicitor General Charles Fried.

Fried described Barak as "superhuman, a mythical character" who "manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer."

During the same event in which Kagan praised Barak -- a 2002 event sponsored by the Harvard Law Review -- Fried spoke right after Barak did. Fried said (at the 42:45 mark of the C-SPAN video):

FRIED: The philosopher Ronald Dworkin -- in his, I think, chef-d'oeuvre, his absolutely best piece written many years ago and published in the Harvard Law Review, which was called "Hard Cases" -- develops a theory of judging. And his picture is of a judge, superhuman, a mythical character, whom he calls Hercules, who manages to integrate -- and I use the word integrate in the mathematical sense where you [gestures] -- manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer. It is a remarkable experience to be in the presence of and to have just heard a lecture from a living myth. Because Hercules lives, and you have just heard from him.

Get that? Fried said that Barak matched Ronald Dworkin's conceptual ideal of a judicial "Hercules," a judge who "manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer."

So much for Whelan's suggestion that Kagan is way outside the mainstream because of her praise of Barak.

Posted In
Government, Nominations & Appointments, The Judiciary
Network/Outlet
National Review Online
Person
Ed Whelan
Stories/Interests
Supreme Court Nominations, Elena Kagan
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