Matt Cover used a June 25 CNSNews.com article to parrot a right-wing talking point against Elena Kagan — that she “named as her ‘judicial hero’ an Israeli Supreme Court Justice, Aharon Barak, who said the role of a judge was to ‘create [a] new understanding of law.'”
But Cover repeated only attacks on Barak — he makes no apparent effort to seek comment from Barak defenders. Cover also fails to note that conservative Supreme Court Justice Antonin Scalia has praised Barak, even though Cover noted that Barak appeared at a symposium with Scalia.
Cover repeats Barak’s comments about “purposivism,” which Cover defines as a method in which “a judge interprets a constitution or law according to his determination of the modern meaning of the statute,” without noting that judges in Israel have more interpretative power because there is no formal constitution. Nor did Cover note that the Barak-led Israeli Supreme Court has ruled that the two “Basic Laws” approved by the Israeli Knesset in 1992, on “Human Dignity and Liberty” and “Freedom of Occupation,” held a higher normative status and thus, the Israeli courts have the power to strike down parliamentary legislation that violated the Basic Laws.
As we’ve noted, this bogus attack on Kagan was first forwarded by WorldNetDaily’s Aaron Klein.
UPDATE: A June 23 CNS article by Cover uncritically repeated Robert Bork’s attacks on Kagan, as expressed in a “conference call sponsored by Americans United for Life.” Cover didn’t mention that, as Salon noted, when Bork was nominated as justice (a nomination that failed due to his out-of-the-mainstream views), railed against “public campaigns of distortion” against nominees — the very type of campaign he is now participating in to bash Kagan.