Did anyone else see this ????? WT

[larrymeyer]

http://www.philly.com/philly/opinion...amination.html


Christine M. Flowers: Legal contamination
By Christine M. Flowers
Philadelphia Daily News

LAST FRIDAY, the Supreme Court's sole female justice told a group of budding lawyers in Ohio that U.S. courts, including her own, should refer to foreign law when deciding cases and that any squeamishness about that was just a "passing phase."

The internationalists cheered.

They've been lobbying for one big international tribunal of love and mutual respect for years.

And they've criticized those who think U.S. courts should stick to U.S. laws and our U.S. Constitution (which Madame Justice Ginsburg swore to uphold and defend as part of her oath of office) as jingoistic and narrow-minded. Listen, they say, it's a big world out there, and I guess we can learn a lot from our brothers and sisters in, say, Canada, where they sneer at the First Amendment, or in Saudi Arabia, which sanctions marriage between 8-year-old girls and middle-aged men.

Ginsburg apparently doesn't believe in the supremacy of the Constitution because to do so would apparently be arrogant. She implied that the failure to consider the reasoning of foreign judges diminished the importance of the Supreme Court, although she didn't give details other than to say that the Canadian high court is "cited more widely abroad than the U.S. Supreme Court," and she made the telling observation that "you will not be listened to if you don't listen to others."

Ah, so that's it. We have to play nice in the international legal sandbox so that other people will pay us some respect. Ginsburg and her legal eagles apparently believe that the law is like a popularity contest and the system with the most friends wins.

It's frightening that a sitting justice would actually say that we should be worried about how other countries feel about our administration of justice.

They had no hand in crafting our Constitution. They are neither bound by our laws, nor have they sent men and women to die in defense of our laws.

And they're not alone. President Obama's nominee for top legal dog at the State Department, Harold Koh, believes that Islamic sharia law could be applied in American jurisdictions in "appropriate cases." Koh, ex-dean at Yale law, is presumably a very smart man. But there is something frighteningly wrong about someone who thinks that there are "appropriate cases" in which a system of laws that regularly dehumanizes women and relegates them to a lower caste could have any relevance whatsoever in this country. (It's one thing for the archbishop of Canterbury to have those crazy thoughts. It's quite another for a Yalie to agree.)

I've handled asylum cases for women who have been persecuted under sharia, and I'd love to see how Ginsburg or Koh would look them in the face and say, "We think it's important to understand the legal justification for the mutilation of your vagina or why you risked stoning because of that unfortunate disagreement with your husband."

You might say that Ginsburg and her like-minded legal circle would never sanction violence against women. True. But trying to incorporate foreign legal principles into our system at the whim of the legal elites in some misguided attempt to be liked in foreign legal circles sends the message that we don't believe that our system merits any special regard. And that's a very dangerous sort of modesty because if the democratic processes of this country don't shape our legal system, it basically answers to no one but some internationalist Ivy Lea-

guers in Washington.

Of course, there's a huge difference between recognizing sharia and giving a nod to the Canadian or European systems.

But where do we draw the line? Even in those supposedly advanced sister systems, you can be charged with a hate crime for merely having a Bible-based view of homosexuality. Or, as Mark Steyn was, crucified for writing a critical but truthful book about radical Islam. (And until the accusing agency was ridiculed into dropping the charges, truth was no defense.)



SCARY. Ginsburg asked, "Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law-review article written by a professor?"

Uh, well, because the article is interpreting our laws based on our Constitution. Those foreign judges may not even understand English, let alone recognize the intricacies of our due process and equal protection. But what does that matter if we get to hold hands and sing "Kumbaya"? *

Christine M. Flowers is a lawyer. See her on Channel 6's "Inside Story" Sunday at 11:30 a.m. E-mail cflowers1961@yahoo.com.

[Paradigm]

Arlen Specter would be so proud...

[308man]

Obama too! Need some good leaders soon.

[Coops]

The original article by Ginsgerg is from 2006. Why this lawyer is bringing it up now is because Ginsberg recently gave a talk on it. Here is the article espousing Ginsberg's opinion.
http://www.supremecourtus.gov/public...02-07b-06.html

She does acknowledge that her idea has critics.

Some have expressed spirited opposition. Justice Scalia counsels: The Court "should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."
Another trenchant critic, Seventh Circuit U.S. Court of Appeals Judge Richard Posner, commented not long ago: "To cite foreign law as authority is to flirt with the discredited . . . idea of a universal natural law; or to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience." Judge Posner's view rests, in part, on the concern that U.S. judges do not comprehend the social, historical, political, and institutional background from which foreign opinions emerge. Nor do we even understand the language in which laws and judgments, outside the common law realm, are written.

Judge Posner is right, of course, to this extent: Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey.

I almost never agree with Justice Ginsberg, but there is no doubt that she is a highly intelligent jurist. I do agree with Justice Scalia and judge Posner that it is unacceptable to point to a decision in a foreign country and apply that to US court cases. But Ginsberg is not going quite that far. All she says is that "they can add to the store of knowledge relevant to the solution of trying questions." How you actually do that without encountering Scalia's argument that it is "sophistry" is not clear, however.

It is quite likely that Obama will be replacing Ginsberg during his term. I even suspect that she will be pressured into resigning so that Obama can get another liberal on the court before he is ousted in 2012. No loss for the court there. It is impossible even for Obama to find a more liberal judge. But if she can hold on for four years there is a chance to make the court a 6-3 landslide for the right. Keep your fingers crossed and root for Ruth.

Edit: About a third of the way down in the link I provided above, Ginsberg cites the following

Two 2005-proposed Acts would do more than "resolve." They would positively prohibit federal courts, when interpreting the U.S. Constitution, from referring to "any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the [U.S.] Constitution." \\

These measures recycle similar resolutions and bills proposed before the 2004 elections in the United States, but never put to a vote. Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support. And one not-so-small concern - they fuel the irrational fringe. A personal example. The U.S. Supreme Court's Marshal alerted Justice O'Connor and me to a February 28, 2005, web posting on a "chat" site. It opened:

Okay commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases.

This is a huge threat to our Republic and Constitutional freedom. . . . If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.

So be careful what you post lest you be labeled a member of the "irrational fringe" I have no doubt that this forum is monitored by the feds.

[Morel42]

I have no problem with having an extreme leftest (or right) on the court.. As long as they have a counterpart of equal extreme leanings to balance it out..

It's their arguements that usually have some great insights and some court researcher diggs up 20 years later.

However, it's when the court is filled with people that lean left or right and the court becomes unbalanced.. I don't want a majority of hard left loonies or a majority of Neo-Con's on the court.

One nutjob from each extreme is great. 4 Nutjobs scare the living crap outta me.. And I gotta tell you.. Her comments are extreme scarry.. Just like when one of them says Privacy isn't in the constitution.. /shudder.

[GunLawyer001]

. . . One nutjob from each extreme is great. 4 Nutjobs scare the living crap outta me.. And I gotta tell you.. Her comments are extreme scarry.. Just like when one of them says Privacy isn't in the constitution.. /shudder.

Privacy is not in the Constitution. Even the Court that created the "right to privacy" said that it was at best implied, that it was an invisible creature found in the shadowy penumbra of things that actually are in the Constitution.

Maybe the ability to ban abortion is beyond the limited power of the Federal government as it was supposed to be (and I believe this to be true). The reason that they had to create the right to privacy was so that the few in Washington could outvote the many in the States.

The nice thing about the US Constitution is that a lot of copies are available to actually read. "Privacy" isn't in it.

[Morel42]

Privacy is not in the Constitution. Even the Court that created the "right to privacy" said that it was at best implied, that it was an invisible creature found in the shadowy penumbra of things that actually are in the Constitution.

Maybe the ability to ban abortion is beyond the limited power of the Federal government as it was supposed to be (and I believe this to be true). The reason that they had to create the right to privacy was so that the few in Washington could outvote the many in the States.

The nice thing about the US Constitution is that a lot of copies are available to actually read. "Privacy" isn't in it.

I should have been more specific.

When Justices seem to believe that we only have the rights that are specifically outlined in the Constitution scare me. The Constitution wasn't meant to give rights.. Only to highlight the biggest ones, and limit the rights of Government.

It's interpretation which is the biggest problem. As a lawyer (I'm guessing that by your handle ) I'm sure you know exactly how important that a Judges own interpretation of the law is when it comes to getting a ruling.

When the supreme court as a whole thinks we don't have a right (this case "Privacy") simply because it's not in the Constitution scares the living crap out of me. Before long the idea becomes institutionalized. It's wrong, but it's been around so long that it's accepted. It becomes precedent.

Sort of like the Fed. The Fed has become accepted by the Majority of the population as what the founding fathers had in mind. When in fact (as we all know here) It's total and absolute BS

[GunLawyer001]

I should have been more specific.

When Justices seem to believe that we only have the rights that are specifically outlined in the Constitution scare me. The Constitution wasn't meant to give rights.. Only to highlight the biggest ones, and limit the rights of Government.

It's interpretation which is the biggest problem. As a lawyer (I'm guessing that by your handle ) I'm sure you know exactly how important that a Judges own interpretation of the law is when it comes to getting a ruling.

When the supreme court as a whole thinks we don't have a right (this case "Privacy") simply because it's not in the Constitution scares the living crap out of me. Before long the idea becomes institutionalized. It's wrong, but it's been around so long that it's accepted. It becomes precedent.

Sort of like the Fed. The Fed has become accepted by the Majority of the population as what the founding fathers had in mind. When in fact (as we all know here) It's total and absolute BS

I was sort of hinting at your point by noting that we are SUPPOSED to have a Federal government with limited powers, not the bizarre monster that has every power except for the rights specifically mentioned in the 1st 10 Amendments. If it really only handled interstate commerce (meaning that it prevented PA from imposing tariffs on Ohio goods), and the border, and foreign wars, and maybe the roads, then we wouldn't need to concern ourselves with 99% of the pressing issues like micro-managing banks and
car companies, rationing health care, etc.