Koh and Justice Ginsburg - Soulmates

How eager to disregard your own country's tradition and law do you have to be to look elsewhere in the world to justify a legal opinion?

That question has haunted me since it became fairly common for some liberal members of the Supreme Court to point to what passes for law in other parts of the world in order to establish precedent here. Chief among the judges who ascribe to this dubious legal theory is Ruth Ginsburg, perhaps the most liberal member of the court since Douglas.

And to make matters worse, she is insensitive to the idea that such legal formulations might be injurious to our own system.

William Jacobsen at the blog Legal Insurrection quotes and comments on an interview with Ginsburg:

The controversy surrounding citing foreign law and foreign judicial decisions errupted because of two Supreme Court decisions citing foreign law in deciding domestic issues relating to prosecuting sodomy and execution of juveniles. Most recently the issue is in the news because of Obama's nomination of Harold Koh as chief Legal Adviser to the State Department. Koh's views of "transnational" law and incorporating foreign legal principles into domestic matters, is a source of much controversy.

Ginsburg appears to comment on the Koh nomination, although not by name, as follows:
"I frankly don't understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law," Justice Ginsburg said in her comments on Friday....Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

"Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" she asked.

So far, so good (not that I necessarily agree with her, but I understand her point). But here's where it gets odd: She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is "probably cited more widely abroad than the U.S. Supreme Court." There is one reason for that, she said: "You will not be listened to if you don't listen to others."

This comment reflects a fundamental mistake in viewing the role of any court in this country. A court should decide cases based on the facts and law before it. What anyone else, and most particularly foreign courts, think of the decision should be irrelevant to the decision-making process.

This is why fighting the Koh nomination is getting bloody and will probably get bloodier as we get closer to confirmation. The idea that our government should operate under any law save the Constitution is so outrageous as to place the individual arguing otherwise beyond reason. Either we have a Constitution that we force our government to live under or we grant them the ability to import laws and precedents from anywhere in the world in order that they can justify doing anything they wish to us.

This is more than an ideological or partisan battle. It is a fight for the soul of America. Other nation's do not view individual liberty as we do and we are likely to lose it if we use other nation's legal formulations on what the relationship between government and its citizens should be.






How eager to disregard your own country's tradition and law do you have to be to look elsewhere in the world to justify a legal opinion?

That question has haunted me since it became fairly common for some liberal members of the Supreme Court to point to what passes for law in other parts of the world in order to establish precedent here. Chief among the judges who ascribe to this dubious legal theory is Ruth Ginsburg, perhaps the most liberal member of the court since Douglas.

And to make matters worse, she is insensitive to the idea that such legal formulations might be injurious to our own system.

William Jacobsen at the blog Legal Insurrection quotes and comments on an interview with Ginsburg:

The controversy surrounding citing foreign law and foreign judicial decisions errupted because of two Supreme Court decisions citing foreign law in deciding domestic issues relating to prosecuting sodomy and execution of juveniles. Most recently the issue is in the news because of Obama's nomination of Harold Koh as chief Legal Adviser to the State Department. Koh's views of "transnational" law and incorporating foreign legal principles into domestic matters, is a source of much controversy.

Ginsburg appears to comment on the Koh nomination, although not by name, as follows:
"I frankly don't understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law," Justice Ginsburg said in her comments on Friday....Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

"Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" she asked.

So far, so good (not that I necessarily agree with her, but I understand her point). But here's where it gets odd: She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is "probably cited more widely abroad than the U.S. Supreme Court." There is one reason for that, she said: "You will not be listened to if you don't listen to others."

This comment reflects a fundamental mistake in viewing the role of any court in this country. A court should decide cases based on the facts and law before it. What anyone else, and most particularly foreign courts, think of the decision should be irrelevant to the decision-making process.

This is why fighting the Koh nomination is getting bloody and will probably get bloodier as we get closer to confirmation. The idea that our government should operate under any law save the Constitution is so outrageous as to place the individual arguing otherwise beyond reason. Either we have a Constitution that we force our government to live under or we grant them the ability to import laws and precedents from anywhere in the world in order that they can justify doing anything they wish to us.

This is more than an ideological or partisan battle. It is a fight for the soul of America. Other nation's do not view individual liberty as we do and we are likely to lose it if we use other nation's legal formulations on what the relationship between government and its citizens should be.