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Ginsburg on Kagan and foreign law

In a rare commentary by a member of the Supreme Court on Senate hearings for a potential colleague, Justice Ruth Bader Ginsburg on Friday sought to correct the views of members of the Senate Judiciary Committee who recently suggested that foreign law has no place in America’s legal principles.   In a speech at American University in Washington (the full text is here), Ginsburg said flatly that it is “very wrong…to charge that citing foreign law is a recent heresy advanced by liberal activist judges in pursuit of their political preferences.”  And, without naming names among senators, she used questions and comments by lawmakers at Justice-designate Elena Kagan’s nomination hearings to illustrate the error she perceived.

Arguing that “foreign and international law  [have] influenced legal reasoning and judicial decision-making” from the nation’s birth, Ginsburg then invited her audience at a gathering of the International Academy of Comparative Law to “flash forward with me” to the Kagan hearings.  “Queries,” the Justice said, “about international and foreign law were several times posed” by senators, including one who voiced “dismay” that Kagan as Harvard law dean required students to take a course in international law.

Another lawmaker, she went on, “ventured that ‘nowhere did the founders say anything about using foreign law.”  That senator then asked Kagan to explain “why it is OK sometimes to use foreign law to interpret our Constitution, or statutes, our treaties.”  And still another Committee member asked “whether [judges should] ever look to foreign laws for good ideas” or “get inspiration for their decisions from foreign law.”

Ginsburg included, seemingly approvingly, some of Kagan’s responses, including a comment that she was in favor of “good ideas…whereever you can get them.”  To which, Ginsburg noted, a senator responded that “I’m troubled” that Kagan “believes we can turn to foreign law to get good ideas.”

The Justice then drew a pointed contrast with the views that the framers of the Constitution had written in The Federalist Papers.  She went on to lay out her own perception that America and its judges can learn from foreign nations, although foreign legal concepts are not binding law.  “The U.S. judicial system,” she contended, “will be the poorer…if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.”

Ginsburg did acknowledge that “U.S. jurists and political actors today divide sharply on the propriety of looking beyond our nation’s borders, particularly on matters touching fundamental human rights.”  And she quoted from Justice Antonin Scalia, a sharp critic of that practice, as well as from Circuit Judge Richard Posner, another critic.

The title of her remarks was “A decent respect to the opinions of [human]kind,” a partial paraphrase of the statement made in opening of the nation’s Declaration of Independence in 1776.