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
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.