Unfortunately, Koh's views are not unique among left-wing
lawyers or even among Supreme Court justices, and it's long past time for us
to rise up and put an end to this un-American nonsense. The confirmation of
Koh would give legal support to the Supreme Court justices who have already
said they favor using foreign law.
Justice Stephen Breyer, who calls himself a "comparativist,"
suggested in a dissent in Knight v. Florida that it is "useful" to consider
court decisions in India, Jamaica and Zimbabwe on allowable delays of
execution. Zimbabwe may have much experience with executions, but we don't
need its guidance about due process.
Justice Ruth Bader Ginsburg has been making speeches advising
lawyers that "your perspective on constitutional law should encompass the
world. ... Our island or Lone Ranger mentality is beginning to change."
While still on the High Court, Sandra Day O'Connor told a
Georgetown University audience that international law "is vital if judges
are to faithfully discharge their duties. ... International law is a help in
our search for a more peaceful world."
Even Justice Anthony Kennedy invoked foreign "authorities" when
he couldn't find any language in the U.S. Constitution to justify
overturning the Texas sodomy law in 2003. His decision cited non-American
sources, including a committee advising the British Parliament, decisions of
the European Court of Human Rights, the European Convention on Human Rights,
a brief filed by former U.N. High Commissioner for Human Rights Mary
Robinson and "other nations, too."
Kennedy emphasized the "values we share with a wider
civilization." In fact, most other countries do not share American values,
and we certainly do not want to share theirs.
During his confirmation hearings, Chief Justice John G. Roberts
pointed out a particular danger of using foreign law. He said that reliance
on foreign law wrongly "expands the discretion of the judge" and substitutes
a judge's "personal preferences" for the U.S. Constitution.
Citing foreign law gives a veneer of respectability to liberals
who espouse the "living Constitution" heresy and want to change it without
obtaining the approval of the American people through the amendment or
legislative processes.
The Senate should reject the nomination of Harold Koh. Then, the
Senate should require all judicial nominees to proclaim their adherence to
the U.S. Constitution as written, and their rejection of the use of foreign
or international law to interpret American law.
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