14 April, 2009

I’m Now Sold On Term Limits For Supreme Court Justices

Since one of the main topics of this blog deals with civil rights, I tend to keep an eye on the Supreme Court and the Justices. I currently subscribe to two SCOTUS blogs, and while they’re very informative, they’re also a good cure for insomnia. However, I also watch for news stories about the Justices and in particular their speaking engagements.  One this past weekend caught my eye.

Justice Ruth Bader Ginsberg spoke at Ohio State University this past weekend.  The NYT covered it here.

The speech is shocking in how clearly it shows that Ms. Ginsberg is unqualified for the job she now holds.

She spent quite a bit of her speech “defending the use of foreign law by American judges”, according to the article.

Let me explain in detail what’s wrong with that idea.

Here’s the Wiktionary definition for “judge”.

judge (plural judges)

  1. A public official whose duty it is to administer the law, especially by presiding over trials and rendering judgments; a justice.

And for “legislator

legislator (plural legislators)

  1. Someone who creates or enacts laws, especially a member of a legislative body.

Now, if you’re making governing decisions for the United States based on foreign law rather than existing U.S. law, which one of the two are you?

If you answered “legislator”, then you’re apparently smarter than Ms. Ginsberg.

Since she can’t be bothered to remember the definitions of these two words, perhaps she could at least be called upon to remember her oath of office?

I, Ruth Bader Ginsberg, do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Supreme Court Justice under the Constitution and laws of the United States. So help me God.

Hmmm…I see, “under the Constitution and laws of the United States.” I don’t see “under the Constitution and laws of the United States and other foreign powers.”

The Supreme Court examines cases brought to it and is the final arbiter of how the case is decided. Their primary resource is the U.S. Constitution and federal law. To judge the merits of a case based on laws from another nation grossly exceeds it’s authority and completely topples the balance of power between the three branches of government as it makes the Supreme Court the decider and implementer of the “law of the land”.

Here are a couple quotes from the Justice:

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?


I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law.

Well, unless the judge from abroad was citing a case in the United States and referring to U.S. law, the simple reason is that his/her opinion is entirely irrelevant.

Chief Justice John Roberts addressed this properly in his own confirmation hearings:

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.

Another wonderful quote:

American hostility to the consideration of foreign law, she said, “is a passing phase.” She predicted that “we will go back to where we were in the early 19th century when there was no question that it was appropriate to refer to decisions of other courts.”

That doesn’t tend to agree with my 19th century study of the court, but I haven’t done the research to properly rebut such a claim. However, there’s no doubt in my mind that our 18th century founders would’ve been adamantly opposed to such a ludicrous idea.  She’s right that there should be no question about this. She’s just completely wrong in her conclusion.

Ms. Ginsberg even applied some circular logic in her reasoning, which any first year law student should know to avoid.

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, 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.”

Ahh…so we should cite others so they’ll cite us. And why exactly, should we want them to cite us? No doubt so that we can cite them. If your head is not spinning at this point, then you’re qualified to work for Justice Ginsberg.

I doubt that Justice Ginsberg reads this blog, but she probably should. Here’s the simple truth. We shouldn’t care whether our court decisions are cited elsewhere. The same reasons that make their decisions irrelevant in our cases make our decisions irrelevant in theirs. They’re not dealing with U.S. law!

The fact that Justice Ginsberg could come to these views and have the temerity to actually speak them in public shows that she no longer has the ability to function in her role as a Supreme Court Justice.

It also makes me wonder why we even bother with nomination hearings. If someone with so little understanding of her role and the role of the court could achieve such a high level position, then clearly, I myself am qualified to be a Supreme Court Justice. Yes, I hold no law degree, nor have I ever studied law. But I do understand the Constitution, and my blog posts should show that I’m quite capable of thorough research on any given topic.

1 comment:

  1. I was sort of hoping to vote for you for king - but I could happily see you replace any of a number of the Supremes...