Witch hunt: Washington Times attempts to attack Liu with "foreign law" canard
Research ››› ››› ADAM SHAH & BROOKE OBIE
In another distortion-laden attack, The Washington Times falsely claimed that judicial nominee Goodwin Liu is "beholden to foreign law" and would look to foreign law for legal "authority" in reaching decisions. In fact, in the law review article the Times cited, Liu spoke favorably about Supreme Court decisions that looked to foreign law as guidance for its decisions, and as a circuit judge, Liu would be obligated to follow those decisions.
Wash. Times distorts Liu article to claim that Liu is "beholden to foreign law"
Wash. Times: "Liu beholden to foreign law." From an April 21 Washington Times editorial headlined "Liu beholden to foreign law" and subheadlined "Beware of the alien obfuscations of Obama judicial pick":
"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.
Liu did not say foreign law should be controlling legal precedent, but approvingly cited Supreme Court cases that looked to foreign law for "guidance." In the law review article cited by The Washington Times, Liu approvingly noted that "[t]he U.S. Supreme Court has cited foreign authority in cases limiting the death penalty and invalidating criminal laws against homosexual sodomy, among others."
- In Lawrence v. Texas, which declared Texas' sodomy law unconstitutional, the Supreme Court cited the European Court of Human Rights and other nations' rulings. The Supreme Court majority in Lawrence did not say that foreign law controlled the interpretation of the U.S. Constitution. Rather, the Court responded to the claim by Chief Justice Burger in a prior case -- which the Court overruled in Lawrence -- that "[d]ecisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards."
- Similarly, in Roper v. Simmons, which dealt with the constitutionality of the death penalty for minors, the Supreme Court explicitly said that foreign law did not control its decision, but rather confirmed its own interpretation of the meaning of U.S. law. The Court cited "the overwhelming weight of international opinion," but added: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."
As lower court judge, Liu would be required to follow Supreme Court precedent
Wash. Times claimed there's a "trendy leftist belief that foreign law should be consulted in interpreting the U.S. Constitution." In the editorial, The Washington Times also asserted: "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."
In reality, death penalty and sodomy cases were written by Reagan-appointed Justice Kennedy. Justice Kennedy, who was appointed by former President Ronald Reagan, wrote the majority opinion in both Lawrence v. Texas and Roper v. Simmons.
In addition, the Supreme Court has repeatedly cited foreign law over the centuries. As law professors including Boston University's David Seipp have noted, the Supreme Court has often cited foreign law in constitutional decisions over the centuries.
As a lower court judge, Liu would be required to follow Supreme Court decisions, including those that cite foreign law. If Liu is confirmed as a judge on the U.S. Court of Appeals for the Ninth Circuit, he would be bound by Supreme Court precedent -- including those cases that cite foreign law.
Wash. Times has repeatedly launched dishonest attacks on Liu to paint him as radical
Far from being radical, Liu has support from numerous conservatives including Ken Starr. Conservative scholars -- including Kenneth Starr and John Yoo -- have expressed support for Liu's nomination. Starr, who investigated President Clinton, co-signed a March 19 letter to Senate Judiciary Committee chairman Patrick Leahy (D-VT) stating that Liu "is exceptionally well-qualified to serve on the court of appeals." According to the Los Angeles Times, Yoo -- the Bush administration lawyer who authored the infamous torture memos -- said of Liu's nomination: "[H]e's not someone a Republican president would pick, but for a Democratic nominee, he's a very good choice." Additionally, Goldwater Institute director Clint Bolick wrote that he "strongly support[s]" Liu's nomination, and James Guthrie, education policy studies director at the George W. Bush Institute in Dallas, reportedly described Liu as a "pragmatist" rather than an "ideologue." Even Fox News host Megyn Kelly has stated that Liu's "qualifications are unassailable."