ConfirmThem

By Carol Platt Liebau Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

It's breaking my heart that Mary Ann Glendon is apparently somewhere between 66 and 68 years old. Otherwise, she'd be one of my top picks for the open Supreme Court seat.

She's far too dignified ever to "campaign," but if she weren't, this piece, appearing in The Wall Street Journal today, demonstrates why she'd definitely be a contender.

The article discusses the use of "foreign law" as a basis for Constitutional adjudication by the Supreme Court. Not surprisingly, Professor Glendon objects to its use in recent cases, but goes one step farther, to explain that resort to foreign law can be appropriate and useful in certain cases:

The problem is not reference to foreign law: It is how foreign law is used by judges who usurp powers reserved under the Constitution to the people and their elected representatives, and whose desire to "learn" is limited to finding arguments in support of conclusions that have little constitutional warrant. The learning process of the foreign law enthusiasts, moreover, is selective. They have shown no disposition to explore why most democracies take a different view from theirs on exclusion of illegally obtained evidence, regulation of abortion or separation of church and state.

But she expertly explains the distinction between "the legitimate use of foreign material as mere empirical evidence that legislation has a rational basis, and its use to buttress the court's own decision to override legislation."

As she points out clearly, the former is fine; the latter is completely illegitimate, and unworthy of a democratic republic.

Great piece. Great lady.