- The Washington Times - Tuesday, May 25, 2010

Solicitor General Elena Kagan’s nomination to the Supreme Court should founder unless she adequately explains why she quite literally put “International/ Comparative Law” ahead of the U.S. Constitution. Senators should question Ms. Kagan in great depth about her views on the applicability of foreign law in American courts.

Increasing references to international laws and norms in American courts have become controversial in recent years, and deservedly so. During the confirmation hearings for new Justice Sonia Sotomayor, Ms. Sotomayor tried to weasel away from past support for judges using the “ideas” of foreign law, and she made a rather categorical statement: “Foreign law cannot be used as a holding or a precedent, or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law.”

That’s right: She said foreign law should not even “influence” a U.S. court decision. That statement is correct, even if Justice Sotomayor’s actual record doesn’t support it. Ms. Kagan should be held to the standard set by Justice Sotomayor’s testimony.

The available evidence suggests that Ms. Kagan’s views don’t comport with that judicial principle. The first clue came during her confirmation hearings for her current position of solicitor general. Here’s what she said: “At least some members of the court find foreign law relevant in at least some contexts. When this is the case, I think the solicitor general’s office should offer reasonable foreign law arguments to attract these justices’ support for the positions that the office is taking.”

Well, no. Even to win a case, it is wrong to argue in favor of something on which it would be wrong to decide. Rather than playing into misguided prejudices of current justices, the solicitor general should argue her position based on the Constitution and laws of our own land, regardless.

The increasingly influential law-and-policy organization Americans United for Life, meanwhile, has raised several other red flags with regard to Ms. Kagan’s views on the relative weight of foreign law and the U.S. Constitution. It was under Ms. Kagan’s leadership while dean of Harvard Law School, for instance, that Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in “International/Comparative Law.” The de-emphasis on the Constitution itself is part of a horribly misguided trend in liberal academia. To replace con-law with international law is symbolic of a mindset that runs far afield from the basics of American legal tradition.

In a New Hampshire speech on Oct. 6, 2008, then-Dean Kagan referred to “a transnational perspective” as being “foundational” as “part of the core of legal thought and activity in this new century.” The academic jargon is instructive: “Transnationalism” is, in the words of radical State Department counsel Harold Koh, the idea that “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.” Another key supporter of transnationalism goes so far as to argue that “international law is supreme over domestic law.”

Senators must ask Ms. Kagan if that is what she means by “transnationalism” being “part of the core” of modern legal thought. If it is, or if it is anything close to it, then she should not be confirmed.

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