Tuesday, September 13, 2005
Awesome And Awesomely Funny
But just to assuage the agonized boredom of you people who are, for what reason I can't really imagine, reading this stuff, I present to you Tommy's astute coverage of the UN Katrina aid story and a really incredible Geraldo interview with Penn. Call these "Money Flows" and "Fight Of The Raging Egos". The last is rather like those Japanese movies in which Godzilla fights it out with Mothra, except that the characters aren't nearly as sympathetic.
Now that I have sneakily captured your attention (sucker), here's an example of why I like John Roberts and think he will be a good justice of the Supreme Court:
ROBERTS: Well, I don't want to comment on any particular case but I think I can speak more generally about the approach. I know Justices Scalia and Breyer had a little debate about it themselves here in town that was very illuminating to get both of their views.Roberts grounds his approach to the law on some very important principles. He does seem to have a genuine instinct and desire to achieve fairness and representation for all people.
And I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn't about interpreting treaties or foreign contracts but as precedent on the meaning of American law.
The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate.
The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory.
ROBERTS: 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.
I think that's a concern that has to be addressed.
The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does.
Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever.
As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there.
And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution.
And I think that's a misuse of precedent, not a correct use of precedent.
And he's exactly right about foreign law, it allows shopping for the view that you want to have supported.
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