Another Confirmation Convert

Supreme Court nominee Elena Kagan indicated during her recent Senate confirmation hearings that, if confirmed, she would not give international law “independent precedential weight” in her court rulings. However, at a recent Heritage Foundation event, “Outsourcing Law? International Law and Its Importance in the Kagan Hearing,” held several days earlier, the speakers expressed their concern that, as with Justice Sonia Sotomayor, Kagan might attempt a “confirmation conversion,” making statements which belie her previous actions.

“Indeed, during her confirmation process, Judge Sonia Sotomayor assured the Judiciary Committee that in her view, citations to foreign law should not be considered relevant to disputes about the proper interpretation of the United States Constitution,” writes George Mason University professor Jeremy Rabkin* in a June 23 Heritage legal memorandum.  “And less than year later, Justice Sotomayor signed on to the Court’s opinion in [Graham v Florida], which cited foreign practice in support of its holding that the Eighth Amendment prohibits life terms for juvenile offenders”

“I think the lesson we learn from that is it’s more important to look in these hearings to the person’s record going in than sudden ‘confirmation conversions,’ as you might call them, at the time of the hearing,” argued Carrie Severino, Chief Counsel and Policy Director at the Judicial Crisis Network, at the event.

“ So, unless she’s [Kagan’s] able to really articulately argue why her positions now differ from her previous positions she’s taken, I think we should take with a grain of salt any arguments of, oh of course I won’t use international law here, there and the other place,” argued Severino.

“So they know that you have to say that in your confirmation hearings but we need to make sure that potential Justices really mean what they’re saying,” she later added.

On June 29, Kagan was questioned extensively by Senator Chuck Grassley (R-Iowa) about her philosophies regarding international law and judicial interpretation.

With regards to her Oxford University thesis, in which she argued that “…judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends,” Kagan explained that she was writing about law before she studied law. “The law, after all, is a human instrument—an instrument designed to meet man’s needs.”

She later added, “And yet, no court should make or justice its decisions solely by reference to the demands of social justice.”

“Senator Grassley, all I can say about that paper is that it’s dangerous to write papers about the law before you’ve spent a day in law school,” said Kagan at the hearing.

Although he said that he had “no inside information about Elena Kagan,” professor Rabkin predicted she would likely rule on several issues while on the court, such as

• “Can we delegate constitutional authority of the United States to international organs?”
• “What’s the status of customary international law?” and
• “… if courts can question detention policies, why not targeting policies?”

Other issues which could be seen by the Supreme Court include challenges to Obamacare’s individual health insurance mandate and to Arizona’s recent immigration legislation.

“Meanwhile the Supreme Court has gotten into a habit…every few years some constitutional dispute invokes foreign precedents or international treaties which we haven’t actually ratified but are out there and interesting and they use this to say what’s the meaning of cruel and unusual punishment,” argued Rabkin at Heritage. He called this “amorphous,” and said that “the most disturbing thing apart from the potential for manipulation…apart from that, what’s most disturbing is it implies that the world at large is somehow a political forum and more than a political forum, a kind of moral forum, and so it gives a lot of authority to what most nations seem to have agreed to.”

In addition, this harms American exceptionalism because, he argued, the “moral consensus of the world is often very unsympathetic to American military efforts.”

As AIA has outlined, Kagan, while Dean at Harvard, opposed military recruiting efforts at the Office of Career Services (OCS) because she felt that the Don’t Ask Don’t Tell law, which she called the “military’s policy,” violated anti-discrimination laws. She also was active in promoting the activities of the lesbian gay bisexual and transgender student group, Harvard Law School (HLS) LAMBDA, which opposed DADT.

Kagan said at the hearing that there were some, limited cases where citing international law would be appropriate but that judges should not concern themselves America’s reputation abroad. “Senator Grassley, I think judges should let the President and the Congress worry about our influence on the world,” said Kagan. “I think that that’s not something that judges should pay much attention to, should pay any attention to.”

However, she did say that she was “in favor of good ideas coming from wherever you can get them,” but that she didn’t think “foreign law should have independent precedential weight in any but a very, very narrow set of circumstances” (emphasis added).

“Fundamentally, we have an American Constitution,” she said. “Our Constitution is our own.”

Such a stance, however, would not necessarily prevent her from citing foreign standards as additional justification for Supreme Court rulings.

*(Full disclosure: Professor Rabkin was AIA’s Constitution Day speaker last year at the National Press Club.)

Bethany Stotts is a staff writer at Accuracy in Academia.