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Judge Robert Bork, Critic of Aharon Barak, Dies

Bork was disqualified from serving in the Supreme Court in a highly partisan Senate hearing.
By Gil Ronen
First Publish: 12/19/2012, 9:03 PM

Distinguished jurist Judge Robert Heron Bork died Wednesday at age 84. Bork was an American legal scholar who  served as a Yale Law School professor, Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit.

In 1987, he was nominated to the Supreme Court by President Ronald Reagan, but the Senate rejected his nomination in a highly partisan confirmation hearing.

Democrats in the Senate resented Bork for his role in what was known as the "Saturday Night Massacre", an event in which then-President Richard Nixon fired Watergate Special Prosecutor Archibald Cox, after Cox requested tapes of Nixon's Oval Office conversations.

Nixon initially ordered Attorney General Elliot Richardson to fire Cox, but Richardson resigned rather than carry out the order. Richardson's top deputy also resigned, making Bork the Acting Attorney General. When Nixon reiterated his order, Bork complied and fired Cox, an act later found to be illegal

Bork was highly critical of Israel's Supreme Court President, Aharon Barak, famous for saying that "everything is judiciable". This view led to his turning the Israeli Supreme Court to a venue for deciding issues that many felt should be the prerogative of elected legislators or experts such as the military - the latter opinion voiced when the Court found for Arab plaintiffs and changed the route of Israel's Security Fence against IDF advice.

In a review of Barak's book, "The Judge in a Democracy," Bork wrote:

"[I]t 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. As he explains, 'a branch of government should not judge itself. It is therefore appropriate that the final decision about the legality of the activities of the legislative and executive branches should be taken by a mechanism external to those branches, that is, the judiciary.' Yet the judicial branch is properly subject to no such external mechanism, 'because of their [the judges’] education, profession, and role,' and because they are 'trained and accustomed to dealing with conflicts of interest.' Judges may be trusted, moreover, since they are 'not fighting for their own power.' Surely anyone familiar with Barak’s record will see the irony in that statement."

Israel's Supreme Court Justices are not vetted by the Knesset and are chosen by a committee weighed in favor of the judges who sit on the committee.