Saturday, April 11, 2009

Ruth Bader Ginsburg: An American Disgrace

The United States constitution has evolved through amendment and interpretation over 230 years of American history. We have widened the circle of civic empowerment to include women and to transcend racial boundaries. We have done so through weighing our constantly expanding body of judicial precedent. Our laws are the subject of international study. Even though we are criticised for our international role, our domestic system of law has attracted widespread admiration and millions of immigrants.

Ruth Bader Ginsburg wants to expand our body of judicial precedent to include laws American citizens have never voted on, to make foreign laws a part of our law books not by act of a legislature but through judicial fiat. The New York Times reports as follows.

In wide-ranging remarks here, Justice Ruth Bader Ginsburg defended the use of foreign law by American judges, suggested that torture should not be used even when it might yield important information and reflected on her role as the Supreme Court’s only female justice. The occasion was a symposium at the Moritz College of Law at Ohio State University honoring her 15 years on the court.

“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday.

Ginsburg's flippant attitude towards foreign judicial precedents is not shared by her fellow Supreme Court judges, most notably Antonin Scalia, John G. Roberts and Clarence Thomas. The New York Times quotes Justice Roberts as follows.

“If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge, and yet he’s playing a role in shaping the law that binds the people in this country.”

Ginsburg's primary concern seems to be not how sound and just a decision is but how often it is cited in foreign courts. She noted as follows in her Ohio speech.

"The Canadian Supreme Court is probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

In Ginsburg's distorted value system, the justness of a decision and its consistency with existing law seem to pale next to the glory of being quoted in a European court. Fashion now sits at the bar of justice next to our most trendoid Supreme Court justice.

Her intellectual sloppiness is truly frightening. She defends her internationalist stance as follows.

“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?

Very good, Ruth. You can outsource your thinking all you want, but there should be a clear commitment to tying the words of a foreign judge to a specific American precedent. Failure to do so creates the risk of disrupting the balance of power by effectively permitting the Supreme Court to introduce foreign laws without their approval by America's elected representatives.

Ginsburg has raised an issue that should be of great concern to Americans who want to maintain our national sovereignty, which is the extent to which we should surrender our national sovereignty through international agreements. What is at least as disturbing as her actual opinions is the dismissive manner in which she attempts to downplay their far reaching importance. "Legislating from the bench" has been a hotly contested issue for decades. A cavalier use of foreign judicial precedents creates the danger of removing legislation even further from the reach of the American people and putting it in the hands of an international elite that answers to no one.

At the Ohio event, Ginsburg was charitably hailed by fellow Supreme Court justices. In light of her ongoing struggle with pancreatic cancer, this is both kind and proper. But her personal difficulties should not distract us from the difficulties that would metastasise if her judicial philosophy were to become mainstream. When she or any other Supreme Court member is replaced, the new candidate should be asked about their attitude towards foreign judicial precedent.

Those who hold public office swear to uphold and defend our constitution. This is critical for Supreme Court members. It is hard to avoid the thought that Ginsburg is attempting to program viruses into our constitution through foreign judicial precedent. This is unfortunate. This is dangerous. The process should be stopped Sphere: Related Content

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