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Jewish World Review August 30, 2005 /25 Av, 5765 Court rulings best made-in-USA By Peter A. Brown
http://www.JewishWorldReview.com |
While it would be both inappropriate and a waste of time for senators to question John Roberts on specific issues such as abortion, it is crucial they pursue general questions about his judicial philosophy.
None is more important for President Bush's Supreme Court nominee to answer when his confirmation hearings begin Sept. 6 than his views on the legitimacy of U.S. judges using international law or foreign-court decisions as a basis for their rulings.
As crazy as it may seem to many Americans, there is an increasing trend of judges, including some on the Supreme Court, citing non-U.S. judicial decisions or law as a basis for their rulings here.
American courts, common sense argues, should dispense justice based on existing U.S. law and the U.S. Constitution.
Remember, in a democracy the governed set the rules through their elected representatives, and the courts enforce and interpret them. Letting the views and values of those who are not part of that process have sway would seem to be fundamentally undemocratic.
Yet, the trend of U.S. courts to at least partially rely on foreign courts or legislatures that are not part of the process that sets the laws here has flown under most Americans' radar.
Like everything else having to do with the courts these days, there is a substantial political dimension to this question.
It really does boil down to the question of whether judges are free to bring in whatever reasons they want to reach their decisions, or whether they are bound by the law of this land.
For the most part, although not uniformly, Supreme Court justices picked by Democratic presidents are more likely to favor using non-U.S. laws or decisions for that purpose than are their colleagues appointed by Republicans. Ruth Bader Ginsburg and Stephen Breyer are perhaps the best examples.
Republicans are more likely to dislike the trend because they generally oppose an activist judiciary. They believe judges should interpret existing law and not bring in extraneous matters on their whim.
Moreover, the underlying views of foreign courts and international law are more in sync with the U.S. Democratic Party than with the GOP.
Now, one might expect that Roberts would be opposed to using foreign laws and decisions, because he has made clear he does not approve of "activist" judges who seek to make law from the bench.
Citing non-U.S. law would seem an obvious case of an activist judge going outside existing U.S. law in order to reach his or her decision.
Yet, that is what Supreme Court Justice Anthony Kennedy — a Ronald Reagan appointee who has become something of a swing moderate on the court — did as the deciding vote earlier this year. When Kennedy found that the death penalty for those younger than 18 years old was unconstitutional, he cited as one reason that the United States was alone in that practice to justify his decision.
In response, U.S. House Majority leader Tom DeLay denounced the ruling, lawmakers introduced resolutions to condemn it, and Supreme Court Justice Antonin Scalia, another Reagan appointee, said the Founding Fathers would be appalled to learn what Kennedy had done.
Ginsburg then irritably suggested that those who thought Kennedy had erred were narrow-minded because "we are not so wise that we have nothing to learn from other democratic legal systems."
Certainly Americans don't have the market on wisdom, although narrow-mindedness is in the eye of the beholder.
But, the learned justice misses the point.
The Founding Fathers already took the best from other societies when they wrote the Constitution. If updates are needed, based on changes in attitudes or standards since then, they should be made by the American people, not a judge who prefers another society's sensibilities.
There is something fundamentally undemocratic — and elitist — in the view that a judge should be able to take the views and values of those who live elsewhere and impose them on citizens here.
To reach a decision based on the laws of those in other nations would seem to be the height of judicial activism.
Now Roberts has been clear that he does not consider himself a judicial activist.
But senators — and the American people — should know for sure before they give him a lifetime appointment to the nation's highest court.
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Peter A. Brown is an editorial page columnist for the Orlando Sentinel. Comment by clicking here. © 2005, Knight Ridder/Tribune Information Services |
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