Sen. Chuck Grassley asked Kagan during today's Judiciary Committee hearing, "Should judges ever look to foreign law for ‘good ideas,’ should they get inspiration for their decisions from foreign law?”
Kagan replied, “Well, Senator Grassley, I guess I’m in favor of good ideas coming from wherever you can get them.”
Her answer may not alarm non-lawyers, and progressives desperate to win approval of foreign nations will no doubt applaud it.
Here's the problem with foreign law: we as Americans had no say in electing the legislators who wrote the foreign statute. The rule of law rests on the consent of the governed, but U.S. citizens did not consent to be governed by leaders of any country but this one. And when we are subjected to the laws of another country, it diminishes our sovereignty
Likewise, the application of foreign law precludes the redress of a democracy. Because we did not elect the members of the foreign parliament, we cannot vote the bums out when we don't like the laws they pass. Kagan's answer, moreover, reveals a certain arrogance about the role of a Supreme Court justice. Her job is not to look for "good ideas." Her job, should she get confirmed, is to apply the law -- U.S. law -- by reading statutes, precedent and the constitution and applying those sources of law to the facts of the case on appeal.
3 comments:
Well that's pretty scary. In my opinion that revelation should disqualify her from consideration. What is your opinion?
I have felt all along that compared to the alternatives, Kagan was not so bad, given that my team lost the election. Now I am revisiting that opinion. Her remarks about foreign law reveal that she is anti-democratic. Worse, she didn't even make a serious argument in support of her position. She was flippant on a subject that she should have expected to be questioned about (Scalia and Breyer had a famous debate about foreign law a few years ago.) That make her look un-serious and unqualified.
I have felt all along that compared to the alternatives, Kagan was not so bad, given that my team lost the election. Now I am revisiting that opinion. Her remarks about foreign law reveal that she is anti-democratic. Worse, she didn't even make a serious argument in support of her position. She was flippant on a subject that she should have expected to be questioned about (Scalia and Breyer had a famous debate about foreign law a few years ago.) That make her look un-serious and unqualified.
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