Wednesday, April 01, 2009

Heading toward a transnational legal process???

President Obama's nominee for State Department legal adviser could be a future Supreme Court pick. He believes U.S. law should be based on foreign precedent, and even Shariah law could find a home here.

We have commented many times on the opinion of a number of U.S. Supreme Court justices that American jurists should include foreign law and precedent in their decisions. In several prominent cases, this has already happened.

In a speech in South Africa, Justice Ruth Bader Ginsburg called the March 2005 Roper v. Simmons decision, in which a 5-4 majority ruled against executing murderers who were 17 or younger, "perhaps the fullest expressions to date on the propriety and utility of looking to the 'opinions of (human)kind.' "

More recently, Justice Stephen Breyer said: "We see all the time . . . how the world really . . . is growing together. The challenge (will be) whether our Constitution . . . fits into the governing documents of other nations." Whether our Constitution fits?

Agreeing with Ginsburg and Breyer is one Harold Koh, a former dean of Yale Law School who's been nominated by President Obama to be the State Department's legal adviser. He's an advocate of what he calls "transnational legal process" and argues that the distinction between U.S. and international law should vanish.

Koh believes laws of places like Zimbabwe and Sri Lanka should carry equal weight with the laws of Virginia and South Dakota, and that it's "appropriate for the Supreme Court to construe our Constitution in the light of foreign and international law" in its decisions....

Koh says the Supreme Court is now divided between "nationalist" judges who believe our Constitution is the only one that counts and "transnationalists" who believe "we the people" should be changed to "we are the world."

The next appointment will tip the balance one way or the other, Koh says. He just might be Obama's first pick to fill the next vacancy. Neil Lewis of the New York Times last year said Koh was widely regarded as a leading contender.

This is the man who'll be giving Secretary of State Hillary Clinton legal advice. This is the man who could quite possibly be the next Supreme Court justice. This is Harold Koh.

Just something to keep an eye on!

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