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.
