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As hearings get under way on Capitol Hill for Elena Kagan's confirmation to the Supreme Court, a former justice's legacy is being pointed to as evidence of what kind of justice President's Obama nominee will be.

Yet this justice never sat on the United State's high court, but rather served on Israel's powerful Supreme Court.

In a conference call last week, Robert Bork, a conservative jurist whose own nomination to the Supreme Court in 1987 was rejected by the Senate, criticized Kagan for her praise of the former president of the Israeli Supreme Court, Aharon Barak.

Bork called Barak "the worst judge on the planet" and said that Kagan's past statements of admiration for the self-described activist judge demonstrate her "immature" judicial philosophy.

"It's disqualifying in and of itself," Bork said.

The remarks Bork referred to date back to 2006, when Kagan, as dean of Harvard Law School, reportedly introduced Barak at an award ceremony as "my judicial hero," according to the Harvard Law Record. "He is the judge or justice in my lifetime whom, I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice," she continued.

In hearings on June 29, Kagan was asked by several Republican senators about her past remarks on Barak, to which she said that though she admired Barak's role in establishing jurisprudence in Israel, a country without a constitution, his "philosophy is so different from anything that we would use or would want to use in the United States."

"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."

While accusations of a Supreme Court nominee's "judicial activism" or desire to "legislate from the bench" are hardly new, such a debate in the U.S. over Israeli jurisprudence is quite novel, with much of the American public, as well as pundits for that matter, asking, "Who is Aharon Barak?"

Barak, who was first appointed to the Supreme Court in 1978 and served as its president from 1995-2006, is most renowned by both admirers and critics alike for his vocal support of an activist judiciary.

"Justice Barak was a judicial activist," Eli Salzberger, the dean of the Faculty of Law at the University of Haifa who served as a law clerk to Barak in 1987, told The Jewish State. "He introduced a theory of judicial interpretation that was not familiar until then, a progressive interpretation both of constitutional law and statutory norms and this jurisprudence led him to be a very activist judge in creating an interpretation of Israeli basic norms and statutory norms."

Many in the legal profession globally have praised Barak for his championing of human rights and civil rights and promotion of democratic freedoms such as Judge Richard Goldstone, the author of a controversial U.N. report on Israel's incursion in Gaza in 2008, who in a 2007 article in the Harvard International Law Journal wrote that Barak's legacy was his belief "that even in times of war, the democratic values of the state should not be subverted."

Other prominent legal thinkers, however, such as Judge Richard Posner, who sits on the United States Court of Appeals for the Seventh Circuit in Chicago, have charged that his embrace of judicial activism has subverted the will of the Israeli people and democracy itself.

David Hazony, who as the former editor of the Israeli political journal Azure published a series of articles critical of Barak's tenure, belongs to the latter camp, arguing that whereas in an earlier time a strong Supreme Court was needed in Israel, that is no longer the case.

The immigrants from Eastern Europe and Arab countries who established the state of Israel had little experience with democratic government, Hazony explained in an interview with The Jewish State. Consequently, David Ben-Gurion and other founders of Israel "had to figure out how to establish a democracy despite the lack of a democratic tradition and a constitution."

At Israel's founding, the idea to write a constitution did not get much traction and instead the leaders decided to establish a powerful supreme court that would be able to by "judicial fiat" establish basic democratic principles such as freedom of speech, according to Hazony.

"What ended up happening over generations was the Supreme Court effectively forced Israel to accept democratic norms without the benefit of legislation," he said.

However, with Justice Meir Shamgar's rise in the 1980s and Barak's in the 1990s, "the question arose: at what point do they go too far?"

"At what point is Israeli democracy sufficiently mature that the judges should get out of the habit of effectively legislating from the bench and, furthermore, at what point are they promoting a very specific, ideological understanding of democracy rather than the simple checks and balances an basic freedoms that a normative democratic government entails," Hazony said, adding "To what extent is judicial activism harming democracy instead of promoting it?"

In Hazony's view, Barak went "too far" as exemplified in a ruling that invalidated the Jewish National Fund and Jewish Agency for Israel's longstanding practice of buying land with the intent of using these areas to form new communities of Jewish immigrants to the country.

"Step by step, Barak thought to force the Israeli people to accept democracy, not just the basic freedom of speech and checks and balances, but pushed strongly towards a specific view of democracy that is universalist, that rejects fundamental principles of Zionism as a Jewish state, and this was expressed in a whole series of court rulings," Hazony said.

Hazony also pointed to Barak's controversial ruling that the legality of any government action must adhere to a "reasonableness test," which Barak defined as those that conform to the views of the "enlightened community in Israel."

In this test, Hazony said, "you have the tremendous assertion of power on the part of court led by Aharon Barak toward the advancement of a very specific ideology."

"They believe they are the guardians of Israeli democracy," he added. "What the knowledgeable critics of the court say in response is that democracy is a much wider tent than the specific universalist ideology that is promoted by the court."

Salzberger, on the other hand, suggested that the judicial activism as exemplified by Barak fits Israel's political structure, which lacks the kinds of checks and balances that the United States has.

In the United States, Salzberger explained, where a constitution is the law of the land, the executive and legislative branches of government are separate, Congress is divided into two bodies, and the president has the authority to veto legislation, the role of the courts are different than in Israel where these checks and balance of government do not exist.

"The U.S. Supreme Court is another institution in this checking and balancing mechanism and one can say from a normative perspective, a philosophical perspective, the American Supreme Court should not be as activist because of the other components of the system," Salzberger said.

Consequently, on the question of whether Kagan's past praise for Barak gives any indication to her own judicial philosophy, Salzberger dismissed the correlation.

"Even if you admire Justice Barak, as Elena Kagan expressed, it doesn't mean she will import every way of thinking or jurisprudential technique of Justice Barak to the American Supreme Court if her nomination is to be approved," he said.