Law professors provide how-to guide to figure out Elena Kagan’s elusive views 

Jeremy Rabkin, law professor at the George Mason School of Law, warned the audience that he had no inside information on Supreme Court Justice-to-be Elena Kagan. With those words, nearly palpable disappointment settled over the room. No dirt on Kagan?

Though Rabkin and co-speaker Carrie Severino, chief council and policy director of the Judicial Crisis Network, could not offer information on this enigmatic woman, he offered something just as good, if not better: How to get information from her.

Kagan’s confirmation hearings began Monday, and Rabkin said it’s vital to find out where she stands on issues of international law because, depending on her views, our Constitution could lose its role as Supreme Law of the Land, replaced, in some situations, by international law or even the laws of a single nation, leaving “the moral consensus of the world to guide us.”

Though they’ve never acted as precedent, foreign laws have factored into the decision of past Supreme Court cases. This leaves the door open for an outside guiding force in court cases.

“We would have to loosen the non-delegation doctrine,” Severino said.

With this loosening, so would the Constitution’s grip on our nation loosen.

“Should it be settled by what other countries do?” Rabkin asked. “It’s very, very amorphous.”

Kagan rather evasively responded to this question at today’s hearing, saying, ““There are some cases in which the citation of foreign law, or international law, might be appropriate... And there might be a question, well, who counts as an ambassador? And one way to understand that question is to look at what international law says about who counts as an ambassador. And that may not be determinative. But it would be possibly something to think about and something to cite.”

In no way does she state the undesirability of international law being determinative in United States courts. The end result could then be that state laws are overturned because they do not line up with the international Law of Nations, putting at hazard the authority of the Constitution.

“What’s most disturbing is that it implies that the world itself is a political forum,” Rabkin said.

Such a principle, if enacted, would likely have a dramatic affect on our military considering that the world is generally unsympathetic toward them. Foreign influence on our military would further complicate the war against terrorism.

Now that we know what questions to ask Kagan, we can also look at what to expect from her. Rabkin and Severino agreed that for constitutional originalists and supporters of the non-delegation doctrine, Kagan's prospects are grim.

"Does she believe there are limits in the power to legislate?" Severino asked. "Elena Kagan is not a fan of originalism."

One of her more widely debated actions occurred while she served as dean at Harvard Law School, instituting a required course on international law: “Students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe—global networks of economic regulation and private ordering... Specifically, we recommend the development of three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law.”

It is clear that Kagan favors the influence of foreign laws on United States soil.

Kagan's history, which Severino strongly emphasized as being more noteworthy than anything she may say during her hearings to appease senators, indicates a belief in growing government through judicial reinterpretations of the Constitution.

Severino said that while Kagan was at Oxford, she addressed the importance of a constitution — that it legitimizes court rulings. But, as Severino pointed out, Kagan failed to recognize the importance of the Constitution itself as a law. If U.S. courts are to import international case law into their decisions, that will undermine this very document that is the supposed source of our judicial system.

What's more, this practice can be used simply to produce a desired ruling without serious thought being put into the referenced foreign laws.

"It's like an opinion poll... they don't do any inquiring into their reasons," Rabkin said. "It doesn't get down to the level of argument."

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Casey Cheney

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