Saturday, March 18, 2006


Alarming Justice Ginsburg

John Hinderaker of Powerline this past week issued a stinging rebuke of a speech delivered by Supreme Court Justice Ruth Ginsburg in South Africa last month. From the speech, it is clear that Ginsburg is a true radical. Ginsburg keeps her mind far more open than her admirers might hope, and her critics well fear.

Not content to base her judicial philosophy merely on the US Constitution, Ginsburg seems to fully and firmly believe that a proper US judiciary should base its opinions on some kind of international sensibility. To add insult to injury, she most uses as grounds for this view some florid language in the Declaration of Independence. As Hinderaker relates:
Ginsburg repeatedly quotes the Declaration of Independence's reference to "a
decent respect for the opinions of mankind," as if it somehow supported her
Much as I admire that document, I’m not so sure I want Supreme Court decisions to be grounded on its more high flying rhetoric. Worse, based on assessing majority views in the world, a jurisprudence informed from world opinion might conclude: the US is the greatest threat to world peace; genocide and ethnic cleansing is preferable to civil unrest; democracy and democratic movements can’t be distinguished from terrorism; Jews are the root of all evil; Bin Laden is a hero and George Bush another Hitler.

Is this how we would want a Supreme Court Justice to apply the scales of justice? (Oh, that the US Houses of Congress were the partisan battleground they’ve become since, when Ruth Bader Ginsburg appeared for confirmation hearings. Perhaps she might not have been approved 97 to 3, and perhaps not at all approved.)

How passionate or committed is Ginsburg to her extreme views? By what Hinderaker reports, very:
In Ginsburg's speech was titled "A Decent Respect for the Opinions of
[Human]kind." In it, Ginsburg argued explicitly for the relevance of foreign law
and court decisions to interpretation of the American Constitution. Ginsburg did
not try to hide the partisan nature of this issue; at one point, she referred to
"the perspective I share with four of my current colleagues," and she
specifically criticized Justice Antonin Scalia, Judge Richard Posner, and the
two bills that were introduced in Congress in 2004 and were broadly supported by
Republicans. And she indulged in an outrageous bit of demagoguery, suggesting
that those who disagree with her are somehow aligned with Justice Taney's
infamous defense of slavery in the Dred Scott case.
Not only does she think she’s right, she thinks anyone who disagrees is a racist. That, and she views our written Constitution as substandard compared to those of other countries. Of course, that’s how Justice Ginsburg talks about the issue when she’s emotional. A more polished, formal explication of her view:
To a large extent, I believe, the critics in Congress and in the media
misperceive how and why U.S. courts refer to foreign and international court
decisions. We refer to decisions rendered abroad, it bears repetition, not as
controlling authorities, but for their indication, in Judge Wald's words, of
"common denominators of basic fairness governing relationships between the
governors and the governed."
I know what I think about this kind of reasoning. Rather than using terminology I’ll need to ask forgiveness for, I’ll stick with Hinderaker’s observation:
This is, to put it politely, nonsense. In our system of government, the courts
are not called on to determine what "basic fairness governing relationships
between the governors and the governed" requires. For legal purposes, issues of
"basic fairness" were decided when the Constitution was authored and approved by
the initial thirteen states, and when the document has been amended over the
subsequent centuries.
I can think of view better examples of dereliction of duty, than a US Supreme Court Justice who does not consider the US Constitution as the bedrock, primary source for US Supreme Court jurisprudence. And progressives think conservatives exaggerate the threat from “activist judges?” Looks to me like the threat is greater than many of us would have thought, and quite institutionalized at this point.

Worse, this could someday form the basis for a real fascism, not the rhetorical silliness of the impassioned (and largely unhinged) left of today, but a real tyranny of the “better informed” few over the unwashed and parochial masses. Again, from Hinderaker:
In Justice Ginsburg's view the Constitution is, on the contrary, a roving
charter for nine individuals to decide what "basic fairness" requires. It should
hardly be necessary to point out that the former understanding, which was
universal until quite recently, is a charter of freedom, inasmuch as the
people's representatives can vote on amendments. Conversely, the "basic
fairness" approach is a form of tyranny in which a small elite can impose its
policy preferences on the rest of us.

It is also utterly unworkable. There is a reason why people reduce legal documents to writing: it's the only way to know what the deal is. Under Justice Ginsburg's approach, the "law" is ineffable. There is no way to know from one day to the next what it might be.
Much like most progressive notions that, at their core, ignore human nature and practical consequences, this internationalist jurisprudence ignores the realities of international relations and the political dimensions of foreign relations. It also prefers ideology over national sovereignty. This is exceedingly dangerous, more so as it reflects the attitude of at least a full one ninth of one of our three branches of government.

Aside from all that, Justice Ginsburg is clearly – from any objective assessment of her jurisprudence – quite selective (one might say partisan) in when she defers to the "opinions of mankind." As Hinderaker observes, it depends on which of mankind’s opinions we’re talking about:
Justice Ginsburg is deferential to the "opinions of mankind" only when they suit
her fancy; that is, when they are manifested in French newspapers, but not when
they are expressed in resolutions of the American Congress. This may or may not
be a sound political preference, but it is a ridiculous basis on which to decide
questions of law under our Constitution.
Subsequent to Hinderaker’s alarming report, his Powerline colleague Paul Mirengoff
suggests that one could make a case to for impeaching Ginsburg. Would that anyone had the will. Even if an exercise in futility, it might underscore the perversities of justice and illogic that undergird much of liberal governing philosophies.

John advises us that Ginsburg's speech “is more reprehensible than [Hinderaker has] suggested. You really have to read it to appreciate how far removed it is from American laws and traditions, and how demagogic it is in both tone and substance.”

Read the whole thing. (Both of them, Justice Ginsburg’s speech and Hinderaker’s critique, and while you’re at it, Ed Whalen’s piece at National Review Online.)

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