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April 13, 2009

Justice Ginsburg...We Need To Look To Foreign Law More, Not Less

Those mean conservatives just won't let her do it as much as she'd like.

I was going to do a more in depth post on this but Gabe pointed me to an excellent take down of Ginsburg's position at the Volokh Conspiracy.

Let me just say why I think this is a bad and more importantly, a dangerous idea. What it really amounts to is a judge looking for a way to pretty up his or her personal opinion. Since they can't find any precedent or support in America's legal traditions they have to go in search of one.

It would be far more honest for Ginsburg, Breyer or Kennedy just to say, "this is what I think and I'm on the Court so you can't stop me from making it the law". Alas, that would never do. Instead they drape their policy preferences in the warm blanket of 'learned colleagues' who represent sophisticated places like Europe. It's not a naked power grab, they will say. It's simply bringing the US into the family of right thinking nations.

Isn't it funny how they always find just the opinion they are looking for? Well it's pretty easy when the world is your market place. Interestingly though, they tend to be rather selective about the courts they cite. On abortion or the death penalty (and a late addition...matters involving gay rights) it's always European courts. Why not South America, Asia or even Islamic courts? Oh because then if you are an activist, liberal justice you don't get the results you like*. I'm sure it's just a coincidence that the most persuasive foreign opinions just happen to match their own preferences. How fortunate for them.

Sadly, we are likely to see more of this, not less from Obama nominated judges. Just another reason it's going to be a long 4 years.

*For more on the subject check out the transcript of a joint appearance by Justices Scalia and Breyer. Needless to say, Scalia by far has the better of it.

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posted by DrewM. at 12:33 PM

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