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Eminentoes
The Import of Justice
Don’t sink to your enemies’ level? Justice Ginsburg just has.
Justice Ruth Bader Ginsburg participated this past weekend in a symposium at Ohio State University celebrating her fifteen years on the United States Supreme Court. The premise here is that her work during this tenure is worthy of plaudits, and in deference to her illness we will waive our challenge.
She was her old vigorous self, reports the New York Times. In particular she was passionate, as her colleague Justice Breyer often is, in defense of the tendency by liberal jurists to cite foreign courts in their opinions. She explained that she does not feel bound by other decisions, but sees them as a source of wisdom that should be scanned for useful insight.
So far she has me on her side. I immediately thought of King Solomon’s words (Proverbs 24:6) that “victory comes from many counselors.” His father, King David, similarly said (Psalms 119:99): “I gained wisdom from all my teachers.” Clip those ideas from wherever they stem. Nothing wrong with reading books about law, ethics, public policy or morality by authors of any nationality; why should a judicial decision be less valid as a form of literature?
The problem is the good Justice is being disingenuous. She well knows that leftist jurists of her stripe are citing these findings from abroad as authoritative source materials. They are fashioning a global crypto-Constitution from a fluid consensus of “modern enlightened thought.” Justice Breyer, to his credit, has been more forthright about this campaign in his public utterances.
Ginsburg’s argument is patently fraudulent. To appreciate this fully, we need to examine the example she cites.
“THE POLICE THINK a suspect they apprehended knows where and when a bomb is going to go off. Can the police use torture to extract that information? In an eloquent decision by Aharon Barak, then Chief Justice of Israel, the court said, ‘Torture? Never!’ The message of the decision was that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity. Now why should I not read that opinion and be affected by its tremendous persuasive value?”
She is not sending us to read Barak’s opus with promises of voluminous argumentation, piling proof upon proof, logic upon logic. Instead she presents a précis of the rationale: don’t sink to your opponents’ level. And a précis of Barak’s irresistible magniloquence: “Torture? Never!”
This is the brilliance that is tremendously persuasive? The reasoning hardly requires a transoceanic visit to the chambers of the Israel Supreme Court. The first impulse of the civilized individual when considering torture is revulsion. It would be a sick culture indeed that could not educate its citizens to this degree of civility. This is the most obvious objection to torture: it is an atrocity and we are not atrocious people. Drop a quarter into any major urban saloon and it will hit a columnist who has at one point cycled the cliché about not sinking to the level of the terrorists. So, point one: nothing original or eye-opening here that was not available on our own shores.
Point two is that it’s baloney. No one can possibly defend this credo of never resorting to torture. The bomb she mentioned is going off. Say it will kill one person. Who are we to sacrifice that person to our genteel sensibilities? Okay, she is willing to sacrifice that person; how about two people? Ten people? A hundred people? A thousand people? Three thousand people, as in the Twin Towers? All those deaths can be shrugged away by the “tremendously persuasive” Aharon Barak: how very lovely!
So the value she cites is limited by definition. No reasonable person can put the value of not behaving like the bad guys higher than the lives of all the good guys. We can debate what the standard will be in how many lives must be on the line. We can debate how strong the evidence must be that this man knows the information we need. We can debate who should be given the authority to make those determinations. But to say we would rather our country be destroyed than ever torture a single human being is an obvious absurdity.
In fact, we could reverse the logic. If we do not want to “come to look like that enemy in our disregard for human dignity,” we have no right to let all these innocent victims die. By consciously passing up the opportunity to save people we are condemning them to horrible deaths. Moreover, a bomb going off might well produce pain in living victims equivalent to torture. Imagine ten people doomed to years of daily torture from lost limbs and shattered nerves because we refused to torture one man for one hour.
My brief today is not to advocate for torture per se. It is merely to expose the facile fallacies of another precious poseur who would like to see the United States returned to Europe.
About the Author
Jay D. Homnick, commentator and humorist, is a frequent contributor to The American Spectator. He also writes for Human Events. Here he speaks at the Rally for Religious Freedom in Miami on June 8, 2012.
Letter to the Editor View all comments (38) | Leave a comment
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jm| 4.13.09 @ 7:00AM
A further point to note is that the Breyers and Ginsburgs are very selective in their quoting other countries' judicial verdicts: they never do so involving abortion. They don't in abortion cases because we have the most radical abortion regime in the industrial world
Terry| 4.13.09 @ 7:27AM
A slightly older phrase that may be applied, "Fight fire with fire."
Mike| 4.13.09 @ 7:54AM
There are plenty of countries she could cite for the proposition that a woman has no place on the court.
Robert Rosencrans| 4.13.09 @ 8:28AM
I've always believed that truth leads to justice. Here's an article that indicates how the truth is manipulated and the end result is garbage.
http://newsbusters.org/node/2698
On NBC’s “Meet The Press” this morning, host Tim Russert stocked his panel with three left-of-center journalists – Nina Totenberg of NPR, Ron Brownstein of the Los Angeles Times, and David Gregory of NBC News – to discuss the events of the week. When they got to the nomination of Samuel Alito to replace retiring justice Sandra Day O’Connor, Russert mentioned that when Bill Clinton was president, both Ruth Bader Ginsburg and Stephen Breyer, despite obvious Liberal leanings, were approved by a strong majority of both Democrats and Republicans. “And they say, ‘Why can't we have the same courtesy to conservative jurists under President Bush?’"
In response, Totenberg said: “If you look at the Ginsburg nomination, for example, she'd been a judge, I think, for 12 years. She'd been, actually, a pretty conservative liberal judge, if you can be such a thing.” This could be the first time that anyone has referred to the former general counsel for the American Civil Liberties Union as being “pretty conservative.”
As the discussion ensued, Totenberg expressed frustration with the president’s second choice to replace Sandra Day O’Connor:
SC Mike| 4.13.09 @ 8:31AM
Justices look to foreign courts to find support for whatever screwy belief they hold. Take torture. Does Justice Ginsburg know that the European Court of Human Rights has ruled that “rough handling” does not amount to torture, even when accompanied by the threat of torture. See this:
http://www.hoover.org/publications/policyreview/35426189.html
and this: http://www.jurablogs.com/de/confession-under-torture
James Pawlak | 4.13.09 @ 8:42AM
In her very recent comments at Ohio State University Supreme Court Justice Ginsburg noted her failure to understand the many objections to citing foreign judges in the interpretation of our laws and, yes, the Constitution of the USA.
What Justice Ginsburg fails to understand and has rejected is that there is such a thing as "American exceptionalism" (Why else would so many people, legally and illegally, risk life and their family connections to flee to the USA?) AND that the differences which made this nation great and hold some remaining like hope for the future is based on the letter of the Constitution and the intent of its authors and that of its Amendments.
Foreign Law is directed towards a socialist collective view of society where individual rights towards political freedom, freedom of (NOT "from") religion, free speech, life itself must all be subjected to the collective will---Of overbearing bureaucrats
Ellis Wyatt| 4.13.09 @ 9:16AM
American exceptionalism is what makes us the greatest country on the planet. With have moral authority because we are a nation of laws and justice. We can debate the issue of torture all we want, but the fact is we don't torture. So, ignoring the rants of the fringe left in this country that spout absurdities about the Bush administration committing "war crimes", without ever giving any evidence to back up their claims, the point of the matter is that as a country we are bound by the constitution, not what some judge in another country thinks.
Mike Cakora| 4.13.09 @ 9:19AM
David: Certainly eschew torture and “aggressive warfare” everywhere and always. But “American exceptionalism” does exist. Here’s but one example: http://www.youtube.com/watch?v=D5O8Yg47lXA
Now I know it ain't pretty and no one around here would want him in charge of anything, but Ginsburg's influence is much greater than his, and that's even scarier.
Mike Cakora| 4.13.09 @ 9:19AM
David: Certainly eschew torture and “aggressive warfare” everywhere and always. But “American exceptionalism” does exist. Here’s but one example: http://www.youtube.com/watch?v=D5O8Yg47lXA
Now I know it ain't pretty and no one around here would want him in charge of anything, but Ginsburg's influence is much greater than his, and that's even scarier.
Darin| 4.13.09 @ 9:20AM
David Mathews,
Is the Constitution of the United States the supreme law of the land or not? If a judge at any level cites any laws outside the Constitution, they are by definition saying the Constitution is inadequate as a legal document. Thus, they by definition disqualify themselves from serving as a judge. In short, they should be immediately impeached and considered for disbarment. Justice Ginsburg and likeminded individuals cherry-pick laws in other countries that support what they want. They routinely ignore laws that support an opposing views. For example, gay marriage is illegal is many countries. Thus, using your logic, it must be illegal in America. The debate here as NOTHING to do with torture. It's all about the selective application of laws from other countries and ignoring the founding legal document of our country. If something isn't covered by the Constitution, there is a process defined (Amendments) in which things can be changed. You don't like it? Fine. Move.
sejay| 4.13.09 @ 9:24AM
Justice Ginsburg also cited "The Holocaust" as a reason for importing foreign law.
“What happened in Europe was the Holocaust,” she said, “and people came to see that popularly elected representatives could not always be trusted to preserve the system’s most basic values.”
Not to put too fine a point on it but....
We should adopt the laws of foreigners, because something happened generations ago in Europe, that suggests that popularly elected officials don't always do the "right" thing....
...something that is NOT open to historical scrutiny or debate. Something that a mere questioning of it, can put you IN JAIL in many "foreign" places...?
Does this sound anything like a reasoned legal argument...? From a member of the Highest Court in the Land...?
Something
JP| 4.13.09 @ 10:02AM
I wonder if future Supreme Court Justices who could be of Muslim descent will look to Iran, Saudi Arabia, or Pakistan for judicial guidance? Or could Justice Scalia look to RCC Canon Law for advice concering abortion, War Powers, and taxation?
Anthony| 4.13.09 @ 10:19AM
I've opined in the past the this facile trend towards international jurisprudence, that has become popular within elite circles of America's legal community, is designed to marginalize the magnificance of the U.S. Constitution and our nation as a whole. To their way of thinking, America is just another nation among nations.
This serves a dual purpose; to legitimize global legal constructs while de-emphasizing the uniqueness of our Constitutional governance framework. Ginsburg is indeed being disingenuous in her parsing of words, like the good leftist that she is. As Justice Scalia has commented on this subject, looking at foreign law and decisions is a nice intellectual exercise but of no relevance to American jurisprudence as tethered to the Constitution. And that is precisely the point, Ginsburg and her ilk are eager to jetision the Constitution because she doesn't believe in its and America's exceptionalism. In fact, she sees the Constitution as a limiting obstacle to her progressive thinking. Obama plans to appoint more judges like Ginsburg and Breyer.
SC Mike| 4.13.09 @ 10:20AM
Justice Scalia could look to RCC Canon Law for advice concerning abortion, War Powers, and taxation, but he doesn’t. Even a casual reading of his opinions makes clear his dedication to originalism. Here’s a good summary:
http://tv.nationalreview.com/uncommonknowledge/post/?q=YzA0NDVhMzMyMWU1NzMwOWFkNjMzMGUwMjExOTljZDc=
But you can start the interviews here:
http://tv.nationalreview.com/uncommonknowledge/post/?q=NmMwMTg4NDNlOGY0NDg1MmExZDFiOWZiZThkOGRkYjY=
J.C.Eaton| 4.13.09 @ 10:37AM
Justice Jackson(the last non-law school graduate, I think) once observedof his colleagues:"We are not final because we are infallible: we are infallible because we are final." He uttered those words out of a sense of humility and realism. Methinks good Justice Ginsburg has it just a bit turned around.
Arthur Thompson | 4.13.09 @ 10:51AM
Justice Ginsberg should be reminded that her oath of office mentions ONLY the constitution and the laws of the United States. Since she has repeatedly violated that oath using foreign law in her argments, perhaps she should be removed from office.
PolishKnight| 4.13.09 @ 12:14PM
I'm chuckling because Ginsburg views racism as "positive' and "affirmative" when directed either towards supposedly "addressing" racism (via reversing the direction) or for a claimed socially laudable goal ("diversity") which is itself racist (that people are going to "think" differently because of their race)
Britain refers to discrimination against white males as "positive discrimination". Can't there be "positive torture" then?
David Govett | 4.13.09 @ 4:10PM
Why assume that rational thought is a prerequisite for high office?
tonypal| 4.13.09 @ 5:25PM
I will never forget one particular moment during the confirmation hearings for then SC nominee Roberts. Senator Durbin, during his Q&A, was expressing incredulity over the fact that as a Judge, Roberts had sided with a corporation over an individual. His reasoning boiled down to the fact that the individual was a small guy against the big corporation, thus making it an unfair fight.
Roberts smashed it out of the park of course, but embedded in Durbin's question was the liberal/activist view of the role of the Supreme Court, where outcomes are pre-determined. That is the real reason Ginsburg and her ilk seek to cite foreign sources. They cannot find support for their opinions here, so they will cite to any source that supports their pre-determined outcome.
Ginsburg and her fellow travelers have a fairly dim view of the constitution as well as the legislative process. But their true hatred is for the American people, who they believe cannot be trusted to govern their own affairs. Her recent remarks, if truly understood, provide the evidence.
Bereket| 4.13.09 @ 6:55PM
I wonder when people make this argument about not being like our enemies if they ever consider all the things they do which are very similar to us. They train, organize, discipline, equip, and plan their activities. They do the very things we do, but to accomplish very different goals. What our liberal friends need to hear from us is that what makes us different are the goals we seek, and not so much the means we use to accomplish them.
bob montgomery| 4.13.09 @ 9:43PM
It's diversity. We must seek diverse opinions. In fact, the more the better. If we could get maybe five or six thousand of them, we could distill them into a formulation suitable to our goals. Every organization in America today, including churches, has been conditioned to place diversity paramount. So why not the judiciary. Diversity for the sake of diversity. Which in the end is nothing. Diversify and conquer.
Ryan Rupe| 4.14.09 @ 9:00AM
Why not quote Saudi law? I'm sure Wahabi jurists would have plenty to say about their versions of "due process" and "equal protection". To serve on Active Duty in the US military, I took an oath to defend the Constitution and I am bound by it and no other.
Kevin R. C. Gutzman | 4.14.09 @ 11:43AM
Scalia says he's an originalist, but he isn't. For example, he says he's not going to refight the Incorporation Doctrine battle; thus, he's not willing to return to the Constitution where leftist justices beginning in the 1910s have decided to apply various of their favorite Bill of Rights principles against the states. Thus, he is complicit in the anti-originalist inversion of the Bill of Rights from limitation on the Federal Government to machine of federal judicial power over state and local governments.
Consider also the partial-birth abortion decision. Scalia and Thomas concurred separately, noting that the decision was inconsistent with an originalist reading of the Commerce Clause but saying they were going to join it anyway.
In sum, Scalia is what the Senate Democrats proved Bork to be: a selective originalist, i.e., a phony. Since he's not consistent in his originalism, we must conclude that he uses originalism as a cover for the policy outcomes he prefers.
ARealist| 4.14.09 @ 12:02PM
Let's see who had the moral high ground.
1. Jews being herded into gas chambers
2. Fleeing east germans, shot in the back, bleeding to death as they lay on barbed wire.
3. Pol Pot's victims
4. Stalin's 30 million victims of exterminations
5. Mao's 70 million victims of extermination
6. The gassed to death Kurds, courtesy of Saddam
7. Castro's prisons full of enemies of the state.
Yep, even if it means you will wind up like the above - all having held the moral high ground - you cannot stoop to their level EVEN IF IT MEANS YOU, YOUR COUNTRY, YOUR SOCIETY OR YOUR EXISTENCE OR YOUR CONSTITUTION WILL BE DESTROYED.
This is the left-liberal world view, based on a theoretical utopian fantasy world in which extraodinary means are NEVER permitted, because it automatically renders you subhuman - like your oppressors. Thus, better to wind up in a gas chamber, than to take the practical, extraodinary and TEMPORARY steps to preserve a way of life.
I'll bet that if Ginsburg's children or grandchildren were about to be beheaded for all to see on Al Jazeera , she would beg, literally beg on her knees, to please, please, brutally torture and beat the only person in custody that could provide information that would save her loved ones.
It is the arrogance and conceit of our intellectual class and moneyed elites that its OKAY for someone elses children to have their heads cut off by a knife wielding Muslim Nazi fanatic - to be shown on the internet for all to see, courtesy of Al Jeezera (the Die Sturmer of the nazi arab governments) , and that the "person of interest" in custody be afforded, at taxpayer expense, an ACLU lawyer.
Elitism and contempt for the common person is the foundation of the modern left-liberal progressive. They decide what's good for the masses, but just do not expect them to live by the same rules.
The rules for the nomeklatura are different; you see, some pigs are more equal than other pigs.
frankg| 4.14.09 @ 5:16PM
tonypal on 4.13.09:
"That is the real reason Ginsburg and her ilk seek to cite foreign sources. They cannot find support for their opinions here, so they will cite to any source that supports their pre-determined outcome."
Pretty much says it all. And when people are fleeing countries around the world to come here, or losing freedom of speech to government regulations in western democracies, I wonder why the need to become like the rest of the world. Great comment.
Bill Clinton| 4.14.09 @ 6:31PM
Too ole to understand. Though it sounds so "virtuous" forgive me. Torture the hell out of them. I will try waterboarding on utube if someone will administer it.
R. Paul| 4.14.09 @ 9:57PM
It's time for Ginsburg's arrest for treason! She's a disgrace. She's not only stupid, but dangerous to the U.S.A.
Pingback| 4.19.09 @ 11:26AM
Topics about America » Archive » The American Spectator : The Import of Justice links to this page. Here’s an excerpt: