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Supreme Court Nominee Opposes Citing of Foreign Legal Precedents to Bolster Opinions


Opposition Democrats in the U.S. Senate expressed frustration this week at what they considered vague answers during the confirmation hearings for President Bush's nominee for Supreme Court chief justice, Judge John Roberts. But, Judge Roberts did make it clear where he stands on the issue of U.S. Supreme Court justices citing foreign legal precedents in their opinions.

The issue of citing foreign law was raised by Republican Senator Tom Coburn of Oklahoma, a member of the Senate Judiciary Committee, which has been questioning Judge Roberts.

Senator Coburn and many other Republicans in Congress oppose the practice adopted by some Supreme Court justices of citing foreign legal precedents in their opinions.

In fact, during an exchange with Judge Roberts, Senator Coburn suggested that justices who cite foreign law should be subject to impeachment and removal from the bench.

"Can the American people count on you to not use foreign [legal] precedents in your decision-making on the Supreme Court?" asked Senator Coburn.

Judge Roberts made it clear he does not agree with those who support the use of foreign legal precedents in Supreme Court opinions. But he disagreed with Senator Coburn about whether such a practice would be grounds for removing a justice from the high court.

"I do not think it is a good approach," Judge Roberts said. "I would not accuse judges or justices who disagree with that, though, of violating their oath. I would accuse them of getting it wrong on that point, and I would hope to sit down with them and debate it and reason about it."

The issue of how much attention the U.S. Supreme Court should pay to the laws and legal precedents of other countries has been the subject of debate in Washington over the past few years.

Earlier this year, two Supreme Court justices, conservative Antonin Scalia and liberal Stephen Breyer, held an informal debate on the issue at the American University in Washington.

In recent years, some of the Supreme Court justices have referred to foreign law to bolster their opinions in cases involving the death penalty and state laws that ban homosexual sex.

Justice Scalia argues that foreign legal precedents have little relevance for American courts.

"The standards of decency of American society," he said. "Not the standards of decency of the world. Not the standards of decency of other countries that do not have our background, that do not have our culture, that do not have our moral views. Of what conceivable value, as authoritative [source], would foreign law be?"

On the other side, Justice Breyer has become one of the high court's leading proponents of at least taking notice of what jurists in other countries might be saying about a given issue, whether it is the death penalty or the indefinite detention of terrorist suspects.

"So, here you are trying to get a picture of how other people have dealt with it," he said. "Am I influenced by that? I am at least interested in reading it and the fact that this has gone on all over the world, and people have come to roughly similar conclusions, in my opinion, was a reason for thinking that is at least the kind of issue that maybe we ought to hear in our court, because I thought our people in this country are not that much different than people in other places."

Justice Breyer also argues that citing foreign law in U.S. courts could have the added benefit of encouraging democracy in countries where court systems are struggling to gain their judicial independence.

Many Democrats say they have no problem with citing foreign legal precedents. But the practice has angered several Republicans who have offered non-binding congressional resolutions in the past urging Supreme Court justices not to do it.

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