Supreme Court nominee Elena Kagan indicated during her recent Senate confirmation hearings that, if confirmed, she would not give international law “independent precedential weight” in her court rulings. However, at a recent Heritage Foundation event, “Outsourcing Law? International Law and Its Importance in the Kagan Hearing,” held several days earlier, the speakers expressed their concern that, as with Justice Sonia Sotomayor, Kagan might attempt a “confirmation conversion,” making statements which belie her previous actions.
“Indeed, during her confirmation process, Judge Sonia Sotomayor assured the Judiciary Committee that in her view, citations to foreign law should not be considered relevant to disputes about the proper interpretation of the United States Constitution,” writes George Mason University professor Jeremy Rabkin* in a June 23 Heritage legal memorandum. “And less than year later, Justice Sotomayor signed on to the Court’s opinion in [Graham v Florida], which cited foreign practice in support of its holding that the Eighth Amendment prohibits life terms for juvenile offenders”
“I think the lesson we learn from that is it’s more important to look in these hearings to the person’s record going in than sudden ‘confirmation conversions,’ as you might call them, at the time of the hearing,” argued Carrie Severino, Chief Counsel and Policy Director at the Judicial Crisis Network, at the event.
“ So, unless she’s [Kagan’s] able to really articulately argue why her positions now differ from her previous positions she’s taken, I think we should take with a grain of salt any arguments of, oh of course I won’t use international law here, there and the other place,” argued Severino.
“So they know that you have to say that in your confirmation hearings but we need to make sure that potential Justices really mean what they’re saying,” she later added.
Read more at Accuracy in Academia.
*Photo (2008) by the Harvard Law Record.