Can Conservatives Take a Page From Liberals' Playbook And Use International and Foreign Law in U.S. Courts?
John Bolton, Condoleezza Rice, and the Schism Among Conservatives

On Tuesday, April 19, in a surprising move, the Senate delayed the confirmation hearing of John Bolton until sometime in early May - due to new accusations that Bolton lacks the proper temperament to hold office. (President Bush has nominated Bolton to be U.S. ambassador to the United Nations.)

The nomination is currently with the Senate Foreign Relations Committee, chaired by Richard G. Lugar (R-IN), and controlled (10-8) by Republicans. A majority "Yes" vote of the Committee is needed to send the nomination to the full Senate floor.

This delay does not mean the Bolton nomination is dead: Far from it. The Bush Administration is redoubling its efforts to show why Bolton is the right choice for this critical moment in U.N., and U.S., history.

Bolton's confirmation, if it occurs, will mean the triumph of conservatives who seek to undermine the United Nations, the very institution Bolton would be assigned to serve. Bolton and his supporters have mounted an aggressive critique of the international legal order. His confirmation would give that critique more force, and ensure that it has practical effect.

Not only would Bolton take aim at the U.N.'s power, he would also predictably try to undermine other aspects of the international legal arena - such as the International Criminal Court. For this reason alone, his confirmation would be very significant indeed.

In this column, however, I will discuss a less-noted, but perhaps even more significant, result that could follow the Bolton confirmation process: It may well shift legal thinking in the United States in a profound way.

Bolton's Scorn for International Law: In Sharp Contrast to Condoleezza Rice's Views

Before explaining why this change is likely to happen, it's worth first reviewing Bolton's stances - which I discussed at greater length in an earlier column - and contrasting them with the markedly different positions of Secretary of State Condoleezza Rice.

The U.N. Charter identifies the central purposes of the organization as - among others - preserving the international rule of law, maintaining international peace and security, developing friendly relations among nations, and promoting and encouraging respect for human rights and fundamental freedoms for all.

Yet Bolton - the Administration's candidate for Ambassador to the U.N. - is a longtime critic of international law and the institutions that support it. For instance, in 1999, Insight Magazine quoted Bolton as saying: "It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so -- because, over the long term, the goal of those who think that international law really means anything are those who want to constrict the United States."

Or take another example -- in 1994, Bolton stated "There is no such thing as the United Nations. There is an international community that occasionally can be led by the only real power left in the world and that is the United States, when it suits our interests and we can get others to go along."

Rice's view is nearly the polar opposite, it seems, of Bolton's: She recently stated that the United States "has been and will continue to be the strongest voice for the development and defense of international legal norms." Rice has also pointed out that "when we support an international system based in the rule of law, we do the work of making the world a better place, but also a safer and more secure place for America."

This schism, as I will explain, closely parallels another schism - regarding the proper role of international and foreign law in U.S. courts.

The Backdrop: The Debate Over Using International and Foreign Law in U.S. Courts

As I have noted in a prior column, over the past few years, liberals and those on the left have increasingly sought to invoke foreign law and international law in United States courts. ("Foreign law" consists of decisions rendered by high courts of other nations; international law is found in treaties, U.N. Security Council resolutions, and the predominant practice of nations)

Two recent U.S. Supreme Court decisions that have narrowed the reach of the death penalty, for example, have drawn on international views on certain applications of the penalty. In 2002, the Court held in Atkins v. Virginia that the death penalty may no longer be applied to the mentally retarded. There, the Court, drawing on an amicus (friend of the court) brief submitted by the European Union, noted "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is universally disapproved."

And in early March of this year, the Court held in Roper v. Simmons that the death penalty may no longer be applied to those who were under eighteen when they committed their crimes. In doing so, it noted the "overwhelming weight of international opinion against the juvenile death penalty." That observation was significant because international disapproval makes a punishment more likely to be deemed "cruel and unusual" and thus a violation of the U.S. Constitution's Eighth Amendment.

The practical effect of this is that liberalizing changes with respect to the death penalty will likely proceed much faster: Rather than waiting for a supermajority of states to eschew a given application of the death penalty, the Court can now rely on a bare majority of states, in combination with broad international condemnation of the application of the penalty.

And the death penalty is not the only area in which the Supreme Court, and other federal courts, have looked to international and foreign law. In other areas of law, the Court has also been citing decisions of other nations' high courts, and from treaty law - which, under the Constitution, is part of "the supreme law" of the United States - in order to aid its analysis of disputes before it.

For example, in the 2003 Michigan affirmative action cases, the Court cited the International Convention on the Elimination of all Forms of Racial Discrimination, which the U.S. has ratified, and the Convention on the Elimination of All Forms of Discrimination Against Women, which the U.S. has not ratified.

That same year, in Lawrence v. Texas, the Court cited a key decision of the European Court of Human Rights- Dudgeon v. U.K. - as well as subsequent European Court jurisprudence on discrimination against homosexuals. And more recently, in a war-on-terrorism case, Hamdi v. Rumsfeld, the Court cited the Geneva and Hague Conventions in finding that Yaser Hamdi was entitled to a reasonable opportunity to challenge the factual basis of his detention as an "enemy combatant."

So Far, the Use of International And Foreign Law In U.S. Courts Is A Cause of Liberals

So far, the right has decried the use of international and foreign law in these cases - which all led to fairly liberal results. And so far, the defense of the use of international and foreign law has been voiced mostly be liberals and moderates.

Moderate Justices Kennedy (who authored Simmons), Ginsburg, and (at times) O'Connor have argued that the Court, and other jurists, can and should make use of decisions of other high courts when analyzing legal arguments.

Indeed, in a recent speech to the American Society of International Law, Justice Ginsburg reasonably pointed to the large variety of outside materials U.S. judges can consult - ranging from Restatements, to treatises, to law review articles by professors, and even students - and asked: Why shouldn't U.S. judges also look to decisions of the Supreme Courts of Canada, South Africa, Israel, Germany or the European Court of Human Rights?

Meanwhile, the other side of the debate is articulated by Justices Scalia and Thomas. For example, their dissent in Simmons opined that "'Acknowledgement' of foreign approval has no place in the legal opinion of this Court . . . ."

Conservative members of Congress such as Rep. Todd Tiahrt (R-Kansas) agree. During a recent House Appropriations subcommittee meeting, Tiahrt grilled Justices Kennedy and Thomas about Simmons. "Lately," Tiahrt thundered, "we've had rulings that seem to go beyond the rule of law." And some of those who take this view even go so far as to want to impeach federal judges who utilize international or foreign law in their decisions.

Two recent resolutions -- one introduced in the House, the other in the Senate - would, if passed, declare that interpretations of the Constitution should not be based in laws of "foreign institutions" unless it helps understand the original meaning of the Constitution. And Senator John Cornyn (R-TX) recently even proposed a resolution stating that consideration of foreign judgments "threatens the sovereignty of the United States."

Will - and Could -- the Right Also Use International And Foreign Law?

But Scalia and Thomas's - and Tiahrt and Cornyn's - point of view is certainly not endemic to conservatives - for many conservatives hold exactly the opposite view. Thus, it may be time for the right to once again take a page from the left's playbook (as it has done, for instance, when it comes to trying to achieve ideological results through the federal courts), and embrace - rather than decrying - the use of international law and foreign law in U.S. courts.

(For more on how the right has stolen the left's playbook, it's well worth reading Jeffrey's Rosen's recent New York Times essay on how the right has taken its cues from the left in learning to use the courts to advance a political agenda, and Adam Cohen's New York Times column arguing that conservatives have become the true legal activists, both in front of, and on, the bench.)

Chief Justice Rehnquist - no one's bleeding-heart - wrote as early as 1999 that "it is time the U.S. courts began looking at the decisions of other constitutional courts to aid in their own deliberative process."

Meanwhile, Secretary Rice's views on the international legal order suggest that paying attention to international law is the right thing to do as a policy, as well as a legal, matter. And she can hardly be accused of being a foreign policy liberal.

It is ironic that the resolutions in Congress arguing for the disregard of these sources of law refer to the original understanding of the Constitution. In reality, the Founders were deeply concerned about "a decent respect to the opinions of mankind," as the stirring opening lines of the Declaration of Independence plainly state. And Founder John Jay, who later went on to be the nation's first Supreme Court Chief Justice, wrote that by taking its place among the sovereign countries of the earth, the United States had "become amenable to the laws of nations."

These views were plainly reflected in our Constitution. Article I grants to Congress the power to define and punish "offenses against the Law of Nations." Article VI says that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." It also says that U.S. courts shall hear controversies arising under treaties.

So is paying attention to international law and foreign law inherently a liberal tactic? The evidence strongly suggests the answer is no.

Consider, too, the Alien Tort Claims Act (ATCA) - though hated by many contemporary conservatives, it is hardly a modern liberal invention. The ATCA was adopted in 1789, as part of the original Judiciary Act. It allows aliens to sue in U.S. courts, even for torts that occurred abroad, as long as they involve certain international law violations. In so doing, the ATCA opened the door to the citation of international law and foreign law - which cases based on events occurring abroad, brought by foreign citizens, will inevitably trigger.

But what about the argument that foreign law and international law are themselves inherently liberal, and will never be useful to the right?

That simply isn't accurate. Sometimes, foreign law is less progressive than U.S. law. And sometimes, international law will help conservative, not just liberal, U.S. causes. International religious freedom protection may be invoked by conservatives, for example.

Similarly, conservatives, including President Bush, will likely want to use international and foreign law to fight human trafficking - a human rights issue they have identified as a priority in the coming years (indeed, President Bush frequently referenced sexual slavery in order to engage his evangelical Christian base during his re-election campaign).

No wonder, then, that former Chief Judge of the U.S Court of Appeals for the D.C. Circuit Patricia Wald has stated that it is hard for her to see international law as "an up-or-down proposition." It may also be why - in response to a challenge from an audience member that judges only use these sources when it suits their political purposes - Justice Ginsburg emphasized that judges should use both negative and positive references to these other sources of law, and not just use it only on the "winning" side of an argument. Even a moderate Justice such as Ginsburg, then, will feel compelled to look at international and foreign law sources that suggest conservative results.

As Wald and Ginsburg's comments indicate, drawing on international and foreign law in itself is value neutral. It only becomes political when in the context of a larger strategy and argument.

Someday, 2005 may be remembered as the year when conservatives realized that the left did not have a monopoly on the use of foreign and international law, and decided to adopt this strategy as their own. And John Bolton's nomination process - whether successful or not - will be seen as the catalyzing moment for this new approach.