Richard A. Posner, Judge of the United States Seventh Circuit Court of Appeals and Senior Lecturer at the University of Chicago Law School, engaged in a debate of sorts with recently retired President of Israel's Supreme Court, Justice Aaron Barak.
I don't think that many people at the crowded hall were aware of this book review Posner published, entitled Enlightened Despot and which contains this opinion of Barak:-
only in Israel (as far as I know) do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision. One is reminded of Napoleon's taking the crown out of the pope's hands and putting it on his own head.
and this here:-
In 2006, he [Barak] published "The Judge in a Democracy", an examination of his judicial philosophy, in which he describes the role of a judge, beyond dispute resolution, is to connect law with society and to protect the constitution and democracy. He also espouses the role of purposive interpretation to reading constitutional texts. The book was savagely reviewed by conservative legal scholars who felt that Barak is advocating Judicial supremacy. Richard Posner's review, who characterized Barak as a "judicial buccaneer",
Robert H. Bork, law professor, published an article in Azure here wherein he wrote, inter alia:-
it would appear that Barak is unconcerned that the rule of law -- which he praises as part of “substantive democracy” -- is in fact being replaced by the rule of judges, a trend to which he himself is the major contributor. Perhaps he believes that judges are simply intellectually and morally superior to other actors in the nation’s politics, and thus judicial authoritarianism is necessary.
Anyway, after interruptions by fanatic anti-Israel pro-Palestinian activists poorly dealt with by the security detail, the fireworks started. I don't think Barak was truly aware of what Posner, in a low-keyed address, was going to do to him. He notched Barak down. Posner bluntly said judges have no expertise outside the law so where does Barak come off lecturing about human rights. He insisted by implication that judges like Barak mystify their calling and use rhetoric.
Barak kept on quoting himself and his decisions and using the word "constitution" when Israel has no constitution. He sounded pitiful. He even said that Posner was in a sense justifying Nazi Germany because they also ruled themselves by law.
I saw Caroline Glick there and I hope she really tears into Barak, too.
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