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EDITORIAL: Liu beholden to foreign law

- The Washington Times - Wednesday, April 21, 2010

President Obama is trying to pack courts with far-left judges who are hiding their fringe opinions from the public and congressional oversight. Front and center is 9th U.S. Circuit Court of Appeals nominee Goodwin Liu.

Just as now-Justice Sonia Sotomayor performed during her confirmation hearings, Mr. Liu did verbal backflips while trying to escape his own past writings and speeches during confirmation hearings on Friday. His rhetorical gymnastics and the worrisome substance he was trying to escape merit greater attention in coming weeks. For now, there is one subject area that does not allow shades of gray and on which his flips can't obfuscate his unacceptable views. That topic is the trendy leftist belief that foreign law should be consulted in interpreting the U.S. Constitution. It's a profoundly wrongheaded notion.

"The use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years," Mr. Liu wrote in the Daito Law Review in 2006. "The U.S. Supreme Court has cited foreign authority in cases limiting the death penalty and invalidating criminal laws against homosexual sodomy, among others. The resistance to this practice is difficult for me to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world."

In answer to this opinion, Sen. Tom Coburn, Oklahoma Republican, and Jon Kyl, Arizona Republican, pressed Mr. Liu on how foreign authority possibly can have bearing on the application of existing American law. Mr. Liu's response was a model of meaningless misdirection. "Judges can collect ideas from any place that they find it persuasive," he dodged. "But there is a very important difference ... between looking for guidance or ideas versus looking for authority - and authority is the basis on which cases are decided, not ideas or other forms of guidance."

This is poppycock. First, what Mr. Liu wrote specifically cited "foreign authority," not "guidance or ideas." Second, even "guidance or ideas" from foreign lands would be way out of place in adjudging any U.S. laws except those dealing with treaties or with upholding foreign laws that the U.S. Congress has explicitly and officially decided to honor. How does one "use" an "idea" in law without somehow applying it? Either the idea in foreign law is relevant or it's not. There is no in-between.

When Mr. Kyl made that point, Mr. Liu again tried to extricate himself by saying he had merely been discussing use of foreign guidance in "the way in which judges articulate a legal rule." Huh?

One articulates a legal rule in the language of this country, in the legal terminology of this country, according to the judicial rules of this country. There's no reason for a judge to look to Japan or Switzerland or Swaziland to figure out how to "articulate" an American legal rule. Mr. Liu's assertion is especially disingenuous because the nominee knows quite well that the few Supreme Court citations of foreign law in recent years - all of them highly controversial - have dealt not with articulating rules, but instead with surveying the supposed moral sense of enlightened mankind, and applying that purportedly universal moral sense to an American court case.

Mr. Liu's stated belief in using foreign law is terribly misguided, and his defense of it was clearly dishonest. Someone with such poor judgment should not be a judge.