Wednesday, September 14, 2005

Single Soft-Shoe Step by Roberts

Judge John G. Roberts Jr. avoided same-sex marriage –– in passing –– in his confirmation hearing for U.S. Supreme Court Justice. Yesterday, he did the equivalent of pleading the Fifth Amendment many times, but he did hint that he would not be influenced by other nations that legalized SSM.

The transcript of his hearing is in a couple of forms at the New York Times.

The marriage mention was not long and he did not address it directly. However, he made it plain that international court decisions would be none of his business.

Arizona Senator Jon Kyl (Republican) mentioned a number of foreign court decisions. They covered cases, such as executions, that Supreme Court justices had considered in opinions. At the end of his question, Kyl asked:

Even nations that share our common law tradition such as Great Britain offer fewer civil liberty guarantees than we do. And the press has far less freedom. Nations such as Canada have allowed their judges to craft a constitutional right to homosexual marriage. There's a lot more to say on the subject.


But I wanted to hear from you. So my question is this: What, if anything, is the proper role of foreign law in U.S. Supreme Court decisions? And, of course, we're not talking about interpreting treaties or foreign contracts of that sort, but cases such as those that would involve interpretations of the U.S. Constitution.

Roberts could not hide behind a case currently under consideration in a court, as he did so many times during his questioning. For a jurist, he was fairly straight, concluding:

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.

In short, Canada, Spain, anyone else? That's their business. You would have to do some serious hard sell to get Roberts' support for same-sex marriage. He will limit what you can put in your quiver.

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