Like a Broken Record, Conservatives Repeat Scare Tactics About Foreign Law in US Courts

Last year, when Justice Sotomayor was about to begin her confirmation hearings, Sen. Jeff Sessions (R-AL) took to the Senate floor to warn that, if confirmed, Sotomayor would replace American law with some kind of new world order:

The novel idea that foreign law has a place in the interpretation of American law creates numerous dangers. A number of academics, and even Federal judges, I would say, are seduced by this idea.

Judge Sotomayor clearly shares in that idea. I am somewhat surprised, but it is true, as I will discuss. Her vision seems to be that we should change our laws, or listen to other laws and judges, and sort of merge them with this foreign law.

Sotomayor has been a justice for almost a full Supreme Court term now, and she has somehow resisted the urge to transform America into France.  Nevertheless, the right-wing is already reviving Sessions’ silly conspiracy theory to attack the President’s latest nominee to the Supreme Court.

Yesterday, for example, the conservative Washington Times, claimed that a curriculum change Kagan presided over while Dean of Harvard Law School somehow reflects contempt for American law.  According to their editorial, “under Ms. Kagan’s leadership . . . Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in ‘International/Comparative Law.’”  Such a “de-emphasis on the Constitution itself” the editorial claims, predicts that a Justice Kagan would join with Justice Sotomayor to make all of Sessions’ foreign law nightmares come truly.

There’s only one problem:  the Washington Times got its facts wrong.  As Media Matters points out, Kagan did not “replace con-law with international law.”  Constitutional Law has never been a graduation requirement for Harvard law students in the first place.

Under Kagan’s leadership, Harvard law did add two new courses to its first year curriculum, but these changes were unanimously approved by the Harvard faculty, including conservatives such as former Reagan Solicitor General Charles Fried.  Moreover, the new course in international and comparative  law was not added as part of some grand conspiracy, but rather in recognition of the fact that many Harvard graduates went on to represent clients with legal issues that cross international borders.   To quote Harvard, a new curriculum was needed to “better prepare our students to enter the current market.”

Right-wing columnist Stuart Taylor also jumps into the conspiracy-mongering about Kagan and foreign law.  Taylor’s evidence that Kagan is somehow outside of the mainstream is a speech she once gave praising former Israeli Supreme Court President Aharon Barak, the legendary jurist who first held that Israeli courts may strike down an act of Israel’s Knesset when it conflicts with the human rights protected by Israel’s “Basic Laws.” In Taylor’s words, Justice Barak is known for “creativity in advancing liberal causes by overturning elected officials’ policies makes Marshall look almost like a champion of judicial restraint,” and Kagan’s praise of Barak somehow warns that she will try to make America more like Barak’s Israel.

Taylor’s attack, however, might come as a surprise to conservative Justice Antonin Scalia.  Scalia recently spoke at an awards ceremony honoring Barak, where he touted his “profound respect for the man, one that trumped their fundamental philosophical, legal and constitutional disagreements.”  Yet for all his praise of Israel’s most famous progressive jurist, Justice Scalia is hardly known for his “creativity in advancing liberal causes.”

The bottom line is this: conservatives have no case against Elena Kagan, so they’ve resorted to recycling old attacks that didn’t even work the last time around.  Sadly, they can’t even get their facts straight while dig through long-forgotten garbage.