Sunday, September 04, 2005

Supreme Court nominees and foreign law in US constitutional adjudication

I've made this point repeatedly on this blog, but with the passing last night of Chief Justice Rehnquist, and the opening of the hearings on John Roberts' nomination, the question of how nominees view the role, if any, of foreign law in US constitutional adjudication takes on ever greater importance. It also has certain virtues as a line of inquiry, in that unlike many of the direct "values" questions, it can plausibly be put as a matter of judicial philosophy, a question of what kinds of sources are appropriate for a US judge in interpreting the constitution. It does not need to be asked, or answered, as a question about particular cases. I have strongly articulated views against the practice of taking foreign law into consideration - see my Policy Review essay, here - but in any case, I think it is a crucial question of the jurisprudence of nominees.

(Update, Wednesday, September 7, 2005: Here is Jeffrey Toobin's take on Justice Kennedy's passion for foreign law, from the New Yorker, here, issue of September 12, 2005. Toobin is an "echo-chamber" journalist - he can't imagine that he might ever have to address the sensibilities of anyone other than the idealized New Yorker reader, and so it never occurs to have to ask Justice Kennedy anything other than fawning questions and or to start from any other assumption except that this foreign law passion is a good globally-progressive thing. Why should Toobin bother, and why should it occur to him at all, since these are the implicit starting points of both Toobin and his readership? Skepticism about something so self-evidently progressive and good? You have to be kidding.)

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