As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.Take that - Justice Breyer!
Friday, September 16, 2005
I didn't watch or listen to every minute of the hearing on Judge Roberts, but I thought the answer set out here was extraordinary for its clarity: