Just two years ago a book titled “The International Judge” featured an introduction she penned. “The question of how much we have to learn from foreign law and the international community when interpreting our Constitution,” she wrote, is “worth posing.”Yep - because that means that when she's hearing cases on the Supreme Court she's just as likely to draw from the the French or Sudanese constitution as the American one.
Oh and get this, Judge Ginsberg said that Judges should be aware that other nations look at how we interpret laws. Horrors.
Of course neither of those quotes says that the justices involved will misinterpret the law based on foreign laws, unless you are already convinced that Justices Ginsberg and Sotomayor are already going to misinterpret the law. Rather they are just commenting on the world that judges live in; there are more laws then our own and there's nothing wrong and possible much good with being aware of that.
I find myself wondering if a liberal Justice said "I really like listening to Miles Davis in my chambers while I am writing my decisions; something about that music gets to me." if we'd read day after day of articles suggesting that this Justice was going to go to Miles Davis rather than the law or the constitution.
But the plus side is that Sotomayor is very likely to be our next justice, as Mike Madden notes in an article about the last day of hearings.
Four days of hearings demonstrated what everyone already knew about Sotomayor: She's obviously qualified, she's not remotely the radical activist the right says she is, and her appointment as the first Latina justice truly will make history. The only question left by the end of the day Thursday was exactly when the Senate would get around to making her confirmation official.
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This is especially stupid because it fails to understand the history of considering persuasive but not binding precedent in the common law legal interpretive tradition.
For example, a Missouri court may and probably will consider how Illinois courts have resolved a particular legal issue that the Missouri courts have not yet faced. This kind of legal precedent is persuasive, but not binding. The Missouri court is not required to follow Illinois's decision--that would allow Illinois to decide questions of Missouri law, which would be unacceptable because they are equal sovereigns. But the closer the analogy is, the more the Missouri court is likely to lend weight to the Illinois decision. This happens all the time.
Furthermore, American courts already routinely look to foreign law as persuasive precedent, especially for common law questions--areas of law that we retained from the English system when we set an independent course. It's persuasive because when we became an independent political unit, we emphatically decided not to sever our legal tradition. We retained the body of common law decisions that we inherited from the English (and in a lot of instances, the Scottish) legal tradition. So decisions made by other inheritors of the same Anglo-American Common Law, at least with regards to the legal areas to which the common law applies, are persuasive. They are less persuasive than any American decisions, but they have some decisional weight. If there is no American case on point, a Canadian or Australian case may be legitimately considered by an American court. It's not going to be binding, but it is going to be something our courts consider.
This is why first-year American law students learn a handful of critical foreign common law cases in Contracts and Torts. They're persuasive. They founded important trends that we have adopted.
There's nothing wrong or inconsistent about American courts considering the decisions made by foreign courts; it's actually already a part of our legal tradition. We're a sovereign nation, so our courts will never be bound by those decisions, ever. But our courts are free to consider them, and they do, and they always have. This is nothing new. It only sounds new to people who do not know what they are talking about.
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