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Attacks on David Ogden:
In the last few days, a number of conservative groups have tried to rally opposition to David Ogden, President Obama's nominee for Deputy Attorney General. In my view, their arguments are simply terrible. For example, at Heritage, Steven Groves notes that in successfully defending an inmate on death row before the U.S. Supreme Court, Ogden argued that the Supreme Court should look to foreign law to interpret the Constitution. Well, of course he made that argument: He had an ethical duty of zealous advocacy on his client's behalf, and he properly made the argument that he thought had the best chance of winning. (Can you imagine a lawyer representing a client on death row and opting not to make an argument that would win and save his client's life?!?) I personally don't think the Supreme Court should have agreed with Ogden's position. But that's my problem with the Court, not the lawyer representing his client.

  UPDATE: In the comment thread, Steven Groves responds:
My argument was not that Mr. Ogden shouldn't zealously represent his client, but rather that the Senate should probe his beliefs regarding constitutional interpretation vis-a-vis foreign jurisprudence. I thought that was clear from the paper.
  I appreciate the clarification. I wonder, though, why probe Ogden's views of the issue, as opposed to the views of other nominees? The Deputy AG isn't generally in a position to engage in a lot of constitutional theorizing. And as far as I know, this isn't a question that other DOJ nominees have been asked. (Anyone know if it came up at Holder's hearings?) Perhaps Groves would want the beliefs of every DOJ nominee probed on this issue, and he is picking out Ogden simply because by coincidence Ogden happens to have represented a client in case where the issue came up. That's certainly possible. On the other hand, my sense is that urging the Senate to "probe his beliefs" is likely to be understood not just as suggesting a line of questions generally, but more specifically as suggesting this issue as a possible objection to Ogden's confirmation.
huskerfan:
Good for you Professor.
2.4.2009 2:51pm
Jim Rhoads (mail):
A similar argument was made against Ted Olson because of arguments he made in Bush v. Gore and other cases. Bad argument then; bad argument now.
2.4.2009 3:02pm
Houston Lawyer:
Just because the Court agreed with him doesn't make his argument right or above reproach. Many people believe that appeals to foreign law undermine the rule of law here. What other laws might he seek to overturn or defend based on foreign precedent?
2.4.2009 3:03pm
Anderson (mail):
Well said. You omit however Ogden's even more heinous offenses:

He believes pornography users have a constitutional right to view pornography at a public library.

Like in the First Amendment -- shocking! I dunno what Ogden supposedly thinks, but I love how "view" implies images (Hustler!) as opposed to, say, the Story of O, or for that matter John Updike. Of course, if a library *carries* porn mags in the first place, I suppose there's a right to view them ... but does Ogden support requiring libraries to subscribe to porn mags? What does French law say on the matter?

And he "supports a 'living Constitution' that changes to fit the latest fad of the intelligentsia," the report said.

Excellent. A right to lattes is definitely implicit in the Constitution. I hope they include "no foam upon request."
2.4.2009 3:03pm
Anderson (mail):
Can you imagine a lawyer representing a client on death row and opting not to make an argument that would win and save his client's life?!?

No, but then, I'm not Houston Lawyer.
2.4.2009 3:04pm
Oren:

Just because the Court agreed with him doesn't make his argument right or above reproach. Many people believe that appeals to foreign law undermine the rule of law here. What other laws might he seek to overturn or defend based on foreign precedent?

As Orin said, your complaint is with the Court for accepting the decision, not with the advocate.
2.4.2009 3:06pm
Green Monster (mail):
I think Ogden is a horrible choice. I think Holder is a horrible choice, too (I'm generally not fond of gun-banners who advocate pardons for terrorists). Unfortunately for me, though, the election went the wrong way and, as the cliché goes, "to the victors go the spoils." I can sympathize with Heritage et al., but that's what happens when you lose.
2.4.2009 3:07pm
Anon321:
President Obama has expressed his belief the U.S. Constitution should be interpreted through the lens of current events and now he's apparently preparing to install as a senior official at the U.S. Justice Department a lawyer who goes one step further, advocating for constitutional protections for abortionists, pornographers and protesters.

Constitutional rights for protesters? NOOOOOooooooooooo!!!

"There is no such thing as free speech to yell 'fire' in movie theaters," [Fidelis spokesman Joshua Mercer] said.

A convenient datum on the phenomenon of misused and misunderstood legal maxims, which OK highlighted the other day. Most people forget to include the caveat "unless the speaker thinks it's true," but I don't believe I've seen anyone leave out the requirement that the theater be crowded.
2.4.2009 3:07pm
TerrencePhilip:
Just because the Court agreed with him doesn't make his argument right or above reproach.


Wow- HL, I often agree with your posts but you're being ridiculous. Who knows what other nefarious successful arguments he might make if unleashed upon government. Damn this successful lawyer and his fancy-pants winning arguments!
2.4.2009 3:08pm
Anderson (mail):
but I don't believe I've seen anyone leave out the requirement that the theater be crowded

Good point. Next time I watch film credits to the very end, I think I may have to shout "Fire!" just for the hell of it. (Usher runs in -- "did you say 'fire'?" "Uh, no, 'Eire'! Happy St. Paddy's Day!" I will cowardly reply.)

Btw, doesn't "Fidelis" sound like the evil superorganizational baddie in Dan Brown's next opus?
2.4.2009 3:12pm
GA Onlooker:
Well, perhaps this is a bit of an over simplification. It seems to me that Heritage's argument is a political disagreement at best; wherein, they ascribe the arguments made to the Sup Ct as Mr. Ogden's views. What perhaps is more interesting is Mr. Ogden's employment at the time and how did he become involved with the case. If he volunteered to be put in a position to make arguments with which he fundamentally disagrees, that is, at least, worth considering in such an appointment.
2.4.2009 3:13pm
Houston Lawyer:
Pardon me if I don't think the man is a hero for successfully defending someone in a manner that I believe undermines the rule of law. Granted, my primary complaint is with the Court, but in a case like this my displeasure casts a wide net.
2.4.2009 3:20pm
Dave N (mail):
But he was so good in M*A*S*H.
2.4.2009 3:23pm
Sarcastro (www):
It's quite simple - liberals are just not fit for office.
2.4.2009 3:24pm
hawkins:
Who said DOJ officials should be heroes?
2.4.2009 3:26pm
Strict:

Many people believe that appeals to foreign law undermine the rule of law here.


Uh?

Immediately after the Declaration of Independence, New York State became an independent state. A year later it had a state Constitution, which explicitly adopted the Common Law of England, subject to further legislative and judicial modification.

Appealing to foreign law is very American. And if it's useful for a lawyer to do so, she should. No one says foreign law is controlling - but it can be persuasive. Nothing wrong with that.
2.4.2009 3:27pm
martinned (mail) (www):
@Sarcastro: Only if they win or lose. If they win, they clearly hurt all that is holy, and if they lose, they advanced frivolous arguments for unholy positions.
2.4.2009 3:27pm
OrinKerr:
Houston lawyer writes: "Granted, my primary complaint is with the Court, but in a case like this my displeasure casts a wide net."

Do you also hate Richard Simmons? Or is that too wide?
2.4.2009 3:28pm
Thorley Winston (mail) (www):
I think Ogden is a horrible choice. I think Holder is a horrible choice, too (I'm generally not fond of gun-banners who advocate pardons for terrorists). Unfortunately for me, though, the election went the wrong way and, as the cliché goes, "to the victors go the spoils." I can sympathize with Heritage et al., but that's what happens when you lose.


I think I understand what you’re saying but it seems to me that the Republican members of Congress who were either elected or reelected didn’t lose and are under no obligation to role over for Obama-Pelosi-Reid’s agenda. That doesn’t mean they’re likely to win all or even a significant minority of battles but they have every right to try. In which case, it’s simply a matter of picking the battles that they think have the best chance of either (a) advancing their own agenda or (b) slowing or stopping parts of Obama-Pelosi-Reid’s agenda.

As far as David Ogden goes, while it may not be as important to me, I don’t think it’s an understatement to say that many in the Republican camp care deeply about judicial nominees and the ideology of Obama’s future nominees. If Obama is appointing people to the Justice Department who advocated using foreign law to interpret the Constitution (as opposed to English common law in existence at the time of the adoption of the Constitution), then it might be worthwhile for Republicans to try to make an issue of it if only to lay the framework for future battles over judicial nominees and the 2010 midterm elections.

As far as the fairness of evaluating a nominee who is a lawyer based on the argument that they advocated for a client or who they represented and the standard it sets for future nominees, I’m a big believer in reciprocity. If Obama ever opposed or criticized any of then President Bush’s nominees or any other President’s nominees because of who they represented or the arguments they made on their client’s behalf, then what’s good for the goose. . .
2.4.2009 3:30pm
Dave N (mail):
On a serious note, elections do have consequences. I fundamentally disagree with almost every position Mr. Ogden has taken (according to the World Net Daily article). If I were a Senator, I would certainly oppose him for any judicial vacancy, since his views certainly seem extreme.

However, for a sub-cabinet position such as Deputy Attorney General, the President is entitled to his choices unless the nominee has an ethical failing (such as failing to pay taxes) and for that reason Mr. Ogden should be confirmed.
2.4.2009 3:30pm
Bart (mail):
Orin:

Your defense of Mr. Ogden only works if we assume that he does not actually believe most of what he has been arguing before the courts on behalf of foreign law and protections for porn. Do you know for a fact that Mr.Ogden is a hired gun rather than a true believer?
2.4.2009 3:31pm
Oren:
When did "rule of law" come to mean "the way I think the law should be read" rather than "a consistent set of objective laws that apply universally and are effected through due process"?
2.4.2009 3:32pm
krs:
I agree with the sentiment. Ogden has an ethical duty to make the best arguments he can in good faith to further his client's interests.

Reading the Heritage post, though, I don't think Grove denies that. Right at the beginning, Groves acknowledges that "Ogden is certainly qualified for the position of deputy attorney general." The rest of the post goes on to say--as I understand it--that the arguments in the Roper brief are well and good for defending a client, but (1) they would be extremely troublesome if they were to become the basis for DOJ policy somehow, and (2) Ogden should be questioned at his confirmation hearing about his own views--which are obviously separable from arguments he would make on behalf of a client--on the role of foreign law in interpreting the U.S. Constitution.

I suppose there are different ways of reading Groves's post and guessing at his intent. When someone suggests that a nominee should be grilled about a particular topic, that may well be a mealy-mouthed way of suggesting that the confirmation should be held up. I don't know. But just reading the post and taking it at face value, I don't think I find it as objectionable as Prof. Kerr does.
2.4.2009 3:32pm
krs:
I don't speak for Houston Lawyer, but my displeasure with Richard Simmons rests on a different basis than my displeasure with the Roper v. Simmons majority.

The Slim Goodbody field trip in 4th grade was a bit strange, but back then he just seemed like a bit of a character.
2.4.2009 3:34pm
martinned (mail) (www):

However, for a sub-cabinet position such as Deputy Attorney General, the President is entitled to his choices unless the nominee has an ethical failing (such as failing to pay taxes) and for that reason Mr. Ogden should be confirmed.

I've raised this question before in the last few months, but never got a good answer: Why are there so many political appointees in Washington anyway? We make fun of places like Serbia or Bulgaria where half the civil service (the top half) gets fired or sidelined after an election, but it looks to me like the exact same thing is happening in the US. Even if Deputy AG is still high enough up the food chain for it to be filled by a political appointee, what about a Deputy Assistant Attorney General (i.e. John Yoo's job description, IIRC)?
2.4.2009 3:35pm
FormerStudent:
A small point in Houston Lawyer's defense: Just because an argument might win doesn't mean the lawyer has an ethical obligation to advance it, nor does it follow that just because the argument might win ergo it is ethical to make it. I have no idea whether the argument you all are arguing about was an ethical or unethical one, but its success or acceptance by a tribunal is not dispositive.

For example one might argue to a hypothetical jury of rabid racists that the victim deserved the horrible death they suffered at the hands of your client and therefore he should be acquitted. The fact that it might indeed save your client's life does not make it proper, and you are under no ethical obligation to make it.
2.4.2009 3:35pm
OrinKerr:
Bart writes:
Your defense of Mr. Ogden only works if we assume that he does not actually believe most of what he has been arguing before the courts on behalf of foreign law and protections for porn. Do you know for a fact that Mr.Ogden is a hired gun rather than a true believer?
I don't know. Of course, if Ogden's opponents know, they should explain their basis for knowing it and then explain why it is relevant for the position of Deputy Attorney General.
2.4.2009 3:39pm
Oren:
martinned, the Plum Book (link) lists ~10k "non-competitive executive appointments".

The Census (link) lists 2.5 million total Federal employees on the payroll. There are 60k in the DOJ alone.

What exactly is the complaint now?
2.4.2009 3:39pm
OrinKerr:
Martinned,

Deputy AG isn't just pretty high up there: It's the #2 position, with day-to-day responsibility for overseeing the Justice Department.

As for the # of political slots, there aren't that many, actually. (DAAG slots are a mixture of career and politicals.)
2.4.2009 3:41pm
AF:
As a liberal, I don't have any quarrel with the form of Heritage's argument. If you think many of the arguments a lawyer has advocated in the Supreme are seriously wrong, that's a prima facie reason for opposing his appointment to a high-level DOJ position, subject to the counterarguments that he doesn't really hold those positions, or that a center-left president gets to pick a center-left executive branch.

My disagreement is with the substance of Heritage's argument. The positions Ogden has taken are right.
2.4.2009 3:42pm
xx:
Martinned: There are so many because the Federal Government is huge. As a percentage, its pretty small. I'm guessing about 1 in 1000 DOJ employees are appointed.
2.4.2009 3:45pm
Sk (mail):
Isn't a consequence of your view that one can't judge a lawyer by ANY of his actions while working for a client, because his actions were done with the client's best interests in mind?

The only two examples I can come up with off the top of my head are John Edwards' behavior while winning medical cases (I don't know the details, but remember offense at his 'expressing the thoughts of the unborn victims of genetic handicaps' or something-somehow related to how he got rich). And the second is Bill Clinton's 'what the meaning of the word 'is' is' defense (his client in this case happened to be himself).

So we really can't judge a lawyer if that lawyer was working for a client? If not, how do we judge a lawyer (only when he's off the clock)?

Sk
2.4.2009 3:45pm
Dave N (mail):
Martinned,

Deputy Attorney General is the Number 2 position at the Justice Department, so there is good reason for it to be a political appointment.

The federal government publishes what is commonly referred to as the Plum Book, which identifies approximately 7000 positions throughout the federal government that all for non-competitive appointments.

With 1.8 million civilian employees, the 7000 or so political appointees are vastly outnumbered and constitute nowhere near "half the civil service (the top half) [who] get fired or sidelined after an election."
2.4.2009 3:46pm
patrick joy:
Orin: This is where lawyers and us common folk part ways. To non-lawyers, your argument is that Mr. Ogden (or any lawyer) is just an advocate and can argue anything even if they believe it is untrue. If a lawyer does not believe something is true they should not argue it even if it will help the client.
2.4.2009 3:46pm
Anderson (mail):
even if they believe it is untrue

That is not what Prof. Kerr wrote. The relevance of foreign law is not "true" or "untrue" in any generally agreed manner.

An attorney cannot argue things that he *knows* to be untrue, but they have to be pretty uncontroversially "untrue," and he has to "know" them with pretty uncontroversial certainty.
2.4.2009 3:54pm
Houston Lawyer:
Orin

Why twist my expressed displeasure into "hate". FYI, I find Simmons to be hysterical. I laughed out loud when I heard that he kicked some rude bastard's ass in an airport for making fun of him.

Strict

Adopting the Common Law of England as it existed prior to this Country's founding is wholly different than following the dictates of the current French political class.
2.4.2009 3:55pm
LTEC (mail) (www):
"Former Student" obviously understands nothing about "legal ethics", confusing it with "ethics". Obviously, arguing something to be true that you know to be false is extremely dishonest and unethical. But legal ethics demands it. Similarly, legal ethics demands that you threaten to kill the children of the judge if it will help your client -- or at least this holds for legal ethics in some cultures, and the whole point of legal ethics is that no one should be criticized for doing something in its name.

This is all nonsense. The proper defense of Ogden is that he was lying about his beliefs and positions, and that this makes him no worse than most lawyers and most politicians.
2.4.2009 4:00pm
Rock Chocklett:
From Groves's post:


Ogden's co-authorship of the Roper brief does not definitively establish that the arguments in the brief reflect his personal opinion, nor does it dictate how he will advise the attorney general on matters of legal policy. It is right and proper, however, to inquire of Ogden during his Senate confirmation hearing concerning his views on international sources of law and give him an opportunity to explain his beliefs regarding the interpretation of the U.S. Constitution.


Sounds reasonable to me.
2.4.2009 4:00pm
Anon321:
Adopting the Common Law of England as it existed prior to this Country's founding is wholly different than following the dictates of the current French political class.

True. But examining the way that other jurisdictions punish, as a method of giving content to the phrase "cruel and unusual punishments," is wholly different than following the dictates of the current French political class.
2.4.2009 4:03pm
Anderson (mail):
I don't think Houston Lawyer is "hateful"; I just don't want him representing me in court.

A: "Wow, I lost my case, huh?"

HL: "Yes, there was a potentially very effective argument I could have made, but it rested upon premises which I find both politically and philosophically objectionable, so I didn't make it."
2.4.2009 4:05pm
ThreeOneFive (mail):
patrick joy,

Orin didn't make that argument. Where is the indication that Ogden didn't want the court to apply foreign law? Of course a lawyer shouldn't argue something that is untrue. That's a separate ethical violation. Here, the debate is not over truth or falsity, its over the persuasive power of foreign law.
2.4.2009 4:07pm
Anderson (mail):
It is right and proper, however, to inquire of Ogden during his Senate confirmation hearing concerning his views on international sources of law and give him an opportunity to explain his beliefs regarding the interpretation of the U.S. Constitution.

This would however be true regardless of the Roper case.

For that matter, if he's offering guidance to the Executive Branch on whether a given course of action appears legal, and the courts' application of foreign law
is a reasonable possibility, then Ogden would have a *duty* to inform his client of that ... right?
2.4.2009 4:08pm
PlugInMonster:
Appealing to foreign law is by definition ignoring existing statutes. It is very un-American.
2.4.2009 4:09pm
ThreeOneFive (mail):
PlugInMonster,

I don't see how. Often lawyers who appeal to foreign law are not ignoring existing statutes, but saying that they shouldn't be applied. If they have a good faith argument for why the court should look to the foreign law, what is the problem?
2.4.2009 4:10pm
Steve:
Perhaps "the rule of law" should have occupied a more prominent place in our discussion of misused legal terms. The rule of law is not something that is furthered when a court rules the way we want it to, and undermined when it rules the opposite way.
2.4.2009 4:11pm
Houston Lawyer:
Anon

I'm pretty sure that the Court didn't look to the laws of China, Saudi Arabia, Thailand or similar countries to determine what constitutes "cruel and unusual punishments". In addition, according to polling that I've seen, the populations of a number of European countries that abolished the death penalty decades ago supported the death penalty then and still support it. So looking to these countries for guidance is nonsense on stilts.
2.4.2009 4:12pm
ThreeOneFive (mail):
Houston Lawyer,

"Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China." ROPER V. SIMMONS, 543 U.S. 551 (2005).
2.4.2009 4:16pm
A Law Dawg:
I don't think Houston Lawyer is "hateful"; I just don't want him representing me in court.

A: "Wow, I lost my case, huh?"

HL: "Yes, there was a potentially very effective argument I could have made and might have saved your life, but it rested upon premises which I find both politically and philosophically objectionable, so I didn't make it."


You left a minor part out.
2.4.2009 4:18pm
A Law Dawg:
Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China."


Tangential, but curious: Why did the Court list those countries in that order?
2.4.2009 4:20pm
Sarcastro (www):
Whenever someone else has a suggestion or advice, I always cover my ears and humm real loud.

If I took even a little advice from others, I wouldn't be Sarcastro anymore!
2.4.2009 4:20pm
hawkins:

Appealing to foreign law is by definition ignoring existing statutes. It is very un-American.


While I dont agree with it, appealing to foreign law is simply a method of constitutional interpretation. Constitutional interpretation normally ignore existing statutes.
2.4.2009 4:21pm
Oren:
PiM, the petitioner never wanted any existing statutes or law ignored. Quite the opposite, he sought to have his right to be free from C&U punishment to be exercised in the fullest. Of course, you and him seem to disagree about what it means to give full effect to that particular statute.

Trying to wrap your (perfectly colorable) disagreement with the Court about whether the phrase "C&U" refers to contemporary standards as a question of "ignoring" statutes is disingenuous.
2.4.2009 4:27pm
Anderson (mail):
You left a minor part out.

Oh, yeah, that too.
2.4.2009 4:28pm
Oren:
I suppose I used the term "statute" loosely in my 4:27. A provision in the Constitution is no mere statute. The point remains that when one litigant claims "this provision requires X" and another litigant claims "this provision does not require X", it's hard to rationalize the claim that either one of them seeks to ignore the provision.
2.4.2009 4:30pm
MS (mail):
It's fair to judge lawyers by the types of cases they take, especially with pro bono, but it makes no sense, as here, to criticize particular arguments made during a case. Especially so before the Supreme Court, where you make whatever combination of arguments is necessary to get to five.
2.4.2009 4:30pm
Justin (mail):
Thorley,

You really think there's no meaingful difference between taking a legal position as a lawyer for a private defendant charged with a crime and taking a legal position on behalf of the government either a) making the completely discretionary decision to prosecute an individual, b) issuing a supposedly independant legal opinion about the constitutionality of a proposed government action, or c) defending the legality in a civil suit (typically for injunctive relief) of government actions?

Only (c) seems to be remotely similar in terms of the ethical obligation of zealous representation. But even that has certain fundamental differences due to the nature of the client (the government), the forum (civil), and the relief requested (injunctive, typically).
2.4.2009 4:35pm
hawkins:

You really think there's no meaingful difference between taking a legal position as a lawyer for a private defendant charged with a crime and taking a legal position on behalf of the government either a) making the completely discretionary decision to prosecute an individual,


Surely there is for the decision to prosecute. Prosecutors must adhere to higher ethical standards than any other attorneys.
2.4.2009 4:42pm
Bart (mail):
OrinKerr:

Bart writes: Your defense of Mr. Ogden only works if we assume that he does not actually believe most of what he has been arguing before the courts on behalf of foreign law and protections for porn. Do you know for a fact that Mr.Ogden is a hired gun rather than a true believer?

I don't know. Of course, if Ogden's opponents know, they should explain their basis for knowing it and then explain why it is relevant for the position of Deputy Attorney General.


Does a deputy AG have any authority to set DoJ policy? If so, critics of porn and use of foreign law may have a legitimate gripe that Ogden may be incorporating his views on these subjects into DoJ policy.

I would personally have a problem if DoJ started arguing that foreign law applies to interpretation of US constitutional and statutory law or that courts can rewrite the Constitution under a living constitution theory to eliminate impediments to government power like that pesky 2d Amendment because Obama was appointing attorneys with these views to the DoJ.
2.4.2009 4:47pm
A Law Dawg:
Prosecutors must adhere to higher ethical standards than any other attorneys.


Especially if said prosecutors are Bush appointees, judging from recent history.
2.4.2009 4:47pm
LM (mail):
The day we're sworn as attorneys, the privilege of foregoing unpalatable but ethically permissible arguments passes to our clients.
2.4.2009 4:50pm
martinned (mail) (www):

martinned, the Plum Book (link) lists ~10k "non-competitive executive appointments".

The Census (link) lists 2.5 million total Federal employees on the payroll. There are 60k in the DOJ alone.

What exactly is the complaint now?

I don't think this is something that can be settled with numbers alone. For one thing, I'd expect the percentage political appointees to be lower for larger governments, because one would expect the absolute number of politicos to be only somewhat larger in larger countries. I can't find a cite for it (I've looked), but IIRC the UK government consists of only about 100 MPs and Lords. Part of that difference is surely because of their parliamentary system, not to mention definition issues, but yes, I think 10.000 people who are more or less politically appointed is quite a lot. In the DOJ, I'd imagine the AG, the Dep. AG, the assistant AGs and the US attorneys should be enough.
2.4.2009 4:54pm
A Law Dawg:
IIRC the UK government consists of only about 100 MPs and Lords.


That is assuredly not true. There are more MPs than can sit in the House of Commons.
2.4.2009 5:00pm
A Law Dawg:
In fact Wikipedia says:
Since 2005, the House of Commons of the United Kingdom has had 646 elected members; this will increase to 650 at the next General Election.
2.4.2009 5:00pm
Strict:

Strict

Adopting the Common Law of England as it existed prior to this Country's founding is wholly different than following the dictates of the current French political class.


Yes, it is. And it's different from following Zimbabwe court decisions from 1985, and it's different from following decisions from the Burmese Supreme Court in 2001, and it's different from following the political platform of the South Tyrolean People's Party. What's your point?

Are you saying that appealing to British law is not appealing to foreign law?

If there's a persuasive point to be made by citing foreign law, then how does making that point "undermine the rule of law" in America? It's just giving the judge something to consider. Foreign law can be very useful for many reasons. It can help us understand our common law, our Constitution [and it's 'original understanding'], and treaties made by the United States.
2.4.2009 5:04pm
Nick056:
This is a policy dispute in which we have no evidence about Ogden's philosophy regarding the sway of international law besides an argument made on behalf a client (a death row inmate, no less).

Aside from the fact that I find it distateful and unhelpful to rehearse pure policy disputes over presidential appointments, it is, as Professor Kerr said, "terrible" reasoning to derive objections to Ogden's presumptive policies as Deputy AG from a brief he submitted on behalf of a client.

Would Heritage really encourage lawyers to disavow perfectly credible arguments on appeal? Or do they not acknowledge that his reasoning, while controversial, is perfectly credible?
2.4.2009 5:05pm
Ilya Somin:
Orin,

I generally believe that presidential nominees for executive branch positions should be confirmed except in the most extreme cases.
But I fail to see the problem with Groves argument here.
Groves doesn't claim that the brief necessarily reflects Ogden's views. In fact, he specifically states that "Ogden's co-authorship of the Roper brief does not definitively establish that the arguments in the brief reflect his personal opinion, nor does it dictate how he will advise the attorney general on matters of legal policy."

Groves doesn't even say that the Senate should reject Ogden's nomination. He merely says that " It is right and proper, however, to inquire of Ogden during his Senate confirmation hearing concerning his views on international sources of law and give him an opportunity to explain his beliefs regarding the interpretation of the U.S. Constitution." It's hard to disagree with that - especially if you agree (as I know you do) that international and foreign law should not play a major role in judicial interpretation of the US Constitution.
2.4.2009 5:08pm
1Ler:
Prof. Kerr, I'm not really following your argument. The collective argument against Ogden's nomination seems to be "Ogden has a consistent track record of advocating for very liberal positions and interpretations of the law. These positions are not in line with the general political consensus and would cause serious damage to our conservative political goals. Therefore, we should oppose his nomination in order to play to our political base, recover some moderate support, and slow the progression of liberal policies."

Granted, the Heritage article loses steam by focusing on a single argument advanced on behalf of a single client. Of course any zealous advocate should have argued that foreign law supported his client's position. But I think it makes sense when it's part of a long-term pattern.

So what exactly is your problem with this strategy? Do you think it incorrectly portrays Ogden's general political views? (I'm pretty sure you would agree that he seems more liberal than conservative.) Do you think that it focuses on politics instead of merit, and the approval process shouldn't do that? Or do you think it may work to provide political cover and help the conservative position, but you personally don't find it convincing?
2.4.2009 5:12pm
Anderson (mail):
That is assuredly not true. There are more MPs than can sit in the House of Commons.

I think by "government" he meant the cabinet, the executive departments, the law lords, etc.
2.4.2009 5:14pm
Strict:

especially if you agree (as I know you do) that international and foreign law should not play a major role in judicial interpretation of the US Constitution.


But sometimes it does. Look at all the cases dealing with sovereign immunity, for example.
2.4.2009 5:15pm
first history:
Appealing to foreign law is by definition ignoring existing statutes. It is very un-American.

Actually, the Supreme Court has cited foreign law and decisions for over 200 years. An excellent summary of this history is The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision available here.
2.4.2009 5:17pm
xx:
"In the DOJ, I'd imagine the AG, the Dep. AG, the assistant AGs and the US attorneys should be enough."

Yeah, and that's pretty much exactly how it works. That gets you to a bit over 100 political appointments right there.
2.4.2009 5:23pm
Strict:
Plug-In, HL,

Have you never read an opinion that cited Blackstone?!?!
2.4.2009 5:24pm
martinned (mail) (www):
@xx: Hang on: How many? 1 AG, 1 DAG, Let's say 5 Ass. AGs and 50 US Attorneys = 57 by my count.

And yes, by UK government I meant the political top of the executive. (So not even including the Law Lords.)
2.4.2009 5:26pm
NowMDJD (mail):

I've raised this question before in the last few months, but never got a good answer: Why are there so many political appointees in Washington anyway?

Martinned,

Here are two good answers. You may agree or disagree with the policy implications of the second.

First, in a presidential system, the executive will remain for 4 years. More administrative stability can be expected than in a parliamentary system, especially in a country with many parties in the parliament. There, governments may be very transient. The coming and going of leadership will affect the ability of the agency to get things done. Also, qualified people may not want to leave what they are doing to take a government job if they know that they can be thrown out in a couple of months.

Second, permanent employees have a way of doing things, and have their own policy ideas. They may emply this to frustrate the policies of the political leadership. If youwant the elected leadership to determine agencies' direction, you must allow them to appoint as many of its members as possible. This must, of course, be balanced against the advantages of permanent employees-- stability, expertise, and the possibility that political appointees will be beholden to the outfits they regulate, or even actually corrupt.

What would happen in the Netherlands, for example, if a parliament were elected with a mandate to make radical changes in school curricula, or in the vigor with which certain kinds of prisoners are prosecuted? In the US or in American states, it is likely that changes would happen within a short time after accession oft the President or Governor because of our many non-permanent government employees.

As I said at the top, you may consider this good or bad. If you are committed to the idea that the will of the people should be translated into policy to the largest possible extent, then our system may be preferable. If, on the other hand, you think that most government work is technical, and that poilcy decisions should be made by experts, then our system is dysfunctional.
2.4.2009 5:28pm
A Law Dawg:
Strict,

Statutes incorporating the law of the UK as is stood in 1775 is done for an obvious reason: it was also the law of that state in 1775.
2.4.2009 5:31pm
Bart (mail):
first history:

Actually, the Supreme Court has cited foreign law and decisions for over 200 years. An excellent summary of this history is The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision available here.

Most citations to international law apply to treaty obligations or statutes that interact with the international community. The citation to international law in questionable domestic law cases like Dred Scott, the Reynolds polygamy decision, the Roe abortion right fiction or the Lawrence sodomy right fiction does not commend its use for such interpretation.
2.4.2009 5:34pm
Strict:

it was also the law of that state in 1775.


Exactly. That state adopted foreign law. The law didn't originate there - it came from elsewhere.
2.4.2009 5:34pm
Steve:
I'm a little surprised by some of the comments in this thread. Do many practicing lawyers refuse to make arguments that might be accepted simply because they disagree politically with those arguments? If your client's best argument requires advancing an originalist interpretation of the Constitution, but you don't subscribe to originalism, do you seriously tell your client to go find another lawyer to make that argument?

I think Orin would contend that the vast majority of lawyers have no problem arguing for the interpretation of a law that best serves their client's interests, regardless of whether it's the interpretation that the lawyer would personally choose to make if he were sitting on the bench. For that reason, I think Orin is arguing that Ogden's argument isn't probative one way or the other as far as what Ogden personally believes, and that it's kind of poor form to suggest otherwise.
2.4.2009 5:35pm
A Law Dawg:

That state adopted foreign law. The law didn't originate there - it came from elsewhere.


Only to the extent that "New York of 1774" is a state foreign to "New York of 1777."

The Declaration of Independence did not abrogate prior laws, it re-allocated the power to write future ones.
2.4.2009 5:37pm
NowMDJD (mail):

Adopting the Common Law of England as it existed prior to this Country's founding is wholly different than following the dictates of the current French political class.

When the states, and the United States, first became independent, they had to enact rules that would be effective until they had the time to enact other rules. So thy used the rules in effect at the time, which consisted of English Common Law as modified by their own common law and statutes.

You could have made better arguments regarding use of foreign law as persuasive precedent today. Courts may be persuaded by any argument they find persuasive. They can cite the New York Post astrology column if they find it persuasive.

Where things get sticky is when lawyers argue, and judges rule, that there is a body of international law beyond our treaty obligations to which the United States must adhere.

It is different to say, "Do we want to be like Austria and Belgium or do we want to be like Yemen and Zimbabwe," than to say, "European nations punish Crime X thusly, and this represents a civilized standard to which we are obliged to adhere as being implicit in our own constitution."
2.4.2009 5:38pm
Steven Groves (mail) (www):
Professor Kerr,

My argument was not that Mr. Ogden shouldn't zealously represent his client, but rather that the Senate should probe his beliefs regarding constitutional interpretation vis-a-vis foreign jurisprudence. I thought that was clear from the paper.

Best regards,

Steven Groves
The Heritage Foundation
2.4.2009 5:41pm
hawkins:
How about the "Bart will stop being so antagonistic fiction"?
2.4.2009 5:42pm
PubliusFL:
Strict: Exactly. That state adopted foreign law. The law didn't originate there - it came from elsewhere.

But when the common law became law in the colony, it didn't come from "elsewhere." It was domestic law. Pre-independence Virginians were British subjects, not foreigners to British law. The post-revolution enactments just clarified that the independence of the state did not abrogate the common law that was in effect, domestically, before independence.
2.4.2009 5:44pm
NowMDJD (mail):

I'm a little surprised by some of the comments in this thread. Do many practicing lawyers refuse to make arguments that might be accepted simply because they disagree politically with those arguments?

Your surprise may be a little disingenuous.

Of course lawyers are obliged to provide the best arguments for their clients. The people who argue otherwise would be horrified if lawyers deliberately didn't make a persuasiv argument. They mighteven sue the lawyer for malpractice.

But lawyers arguing before the Supreme Court often are doing so to promote a political or social agenda. A lawyer who argues a constitutional case is likely to be personally dedicated to achieving the result his client is looking for.

That is the real problem for conservatives who question the cases lawyers represented and the arguments they made. And liberals raised such objections (like against Olsen) while Bush was president.
2.4.2009 5:44pm
The Unbeliever:
It is different to say, "Do we want to be like Austria and Belgium or do we want to be like Yemen and Zimbabwe," than to say, "European nations punish Crime X thusly, and this represents a civilized standard to which we are obliged to adhere as being implicit in our own constitution."
Obvious question first: where do you draw the line?

What if Americans want to distinguish between what our culture deems "unusual" and what their culture deems "unusual"--are we hereafter required to list such cases out explicitly, or should we just modify every such open-ended statute to read "cruel and unusual to the average American"?

I leave it to others to argue whose "civilized standard" the Founders expected us to reference when they put the Bill of Rights together.
2.4.2009 5:46pm
martinned (mail) (www):
@ NowMDJD: That sounds about right, although somewhere in there, there has to be an assumption about civil service loyalty to their political bosses. I don't have very high hopes there, but I do have the impression that when politicians get elected as in your example on a platform of education reform, the civil servants will work to get it done.

Sticking with the DoJ, I would argue that most of the work is technical (=non-political), and that having political cronies write OLJ memos gets one into trouble.

There is one other point, though, that explains the difference between parliamentary systems and presidential systems even more. In a parliamentary system, everything that the executive does, including all their appointments, always needs the (silent) approval of parliament. So there is no need to formalize the appointments process, with term limits and confirmation hearings, because if parliament have a problem with someone's appointment, they can have a debate and, if need be, overrule the appointment. That, combined with comity between the parties, means that in a parliamentary system each government tries to be evenhanded about promotions and appointments, focusing on proven ability, so that no one will have cause to complain.

Still, I think 10.000 is a lot.
2.4.2009 5:47pm
Steve:
So the argument is that Ogden didn't really care about getting this defendant off, but saw this case as his big chance to accomplish his mission of getting foreign law incorporated into the Constitution? Okay...
2.4.2009 5:47pm
1Ler:
Maybe there's a more substantive issue here: can a lawyer's positions on behalf of clients ever serve as a rough proxy for his personal political beliefs? I certainly think that they can, especially when they consistently favor a certain perspective or political preference. Sure, it's not a perfect correlation and might be unfair to some advocates (in fact, it probably is more unfair to libertarian types who might be married to the "I may disagree with you, but I'll defend your right to say it to the death" principle). But does anyone really disagree with that there's probably a positive correlation over a long-enough time period?
2.4.2009 5:49pm
Thorley Winston (mail) (www):
Actually, the Supreme Court has cited foreign law and decisions for over 200 years. An excellent summary of this history is The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision available here.


Not really, the abstract refers to the debate that Scalia and Brenner had after the Lawrence decision on foreign law and whether to use it in interpreting the Constitution but the authors seems to miss the point Scalia made that (a) using the laws of another country or international law in interpreting a treaty (as opposed to interpreting the Constitution) may be permissible just as parol evidence may be used in interpreting a contract and (b) the English common law that existed at the time of the Founding is arguably “foreign law” but as we were former British colonies, it was arguably also our own law. I suspect that when you remove these two specific instances the body of “foreign law” that has been used by SCOTUS in constitutional interpretation is rather small.
2.4.2009 5:51pm
DG:
"He believes pornography users have a constitutional right to view pornography at a public library. "

Anderson, I'm a fan of porn. But in all seriousness, its very tough to allow porn in a public library, and I say that as the brother of a very civil libertarian librarian (and as a civil libertarian myself). Libraries are work environments which are fundamentally incompatible with porno viewing due to hostile workplace issues and sexual harassment problems. They are also full of kids whose parents will freak out and have floorplans that make private viewing very tough.

Some things should be private, even though they are acceptable and healthy.
2.4.2009 5:52pm
A Law Dawg:
They are also full of kids whose parents will freak out and have floorplans that make private viewing very tough.


That is an engineering concern, not a constitutional one.
2.4.2009 5:57pm
Thorley Winston (mail) (www):
Maybe there's a more substantive issue here: can a lawyer's positions on behalf of clients ever serve as a rough proxy for his personal political beliefs? I certainly think that they can, especially when they consistently favor a certain perspective or political preference.


Someone can correct me if I’m misremembering but didn’t a number of Judge Roberts’ critics* during his confirmation go after the type of clients (e.g. wealthier, business clients) that he represented as evidence of his beliefs or leanings? It seems to me that if you can read an ideological predisposition into the type of clients one represents, the arguments you make on their behalf may also be evidence of the attorney’s beliefs.

* And I would just say again that if Obama ever made such comments about Roberts or another presidential nominee, it is certainly fair to hold his nominees to the same standard.
2.4.2009 5:57pm
Jay:
martinned--
There is one US Att'y for each judicial district, not for each state. CA, NY, &TX have four each, and most of the other states have 2 or 3. Pretty much only the box-like plains states (e.g., SD, WY) and New England are single districts. So I think the total is in the upper 80s or low 90s.
Also, you're correct that the US has a higher % of appointees than most European governments, but I'm unsure why you think this is bad. Watch a few episodes of the old Britcom "Yes, Minister" for an illustraton of what happens when you have a single minister at the top of an agency trying to effect change across a raft of permanent bureaucrats.
2.4.2009 5:58pm
pete (mail) (www):

Anderson, I'm a fan of porn. But in all seriousness, its very tough to allow porn in a public library, and I say that as the brother of a very civil libertarian librarian (and as a civil libertarian myself). Libraries are work environments which are fundamentally incompatible with porno viewing due to hostile workplace issues and sexual harassment problems. They are also full of kids whose parents will freak out and have floorplans that make private viewing very tough.


There are also laws against recklessly showing pr0n in public, at least in Texas and I assume in other states.
Watch all the pornography you want in your own home, but is it really too much to ask public libraries not to become porn theaters? We already have enough trouble attracting normal taxpayers to use our facilities because of the type of people who see nothing wrong with watching porn on computers that other random people will see.

I say this as a librarian who buys controversial material all the time and thinks that people should be free to use library computers, but does not buy any pornography for the library. I am fine with academic libraries buying magazines like playboy since those have value besides the pictures.
2.4.2009 6:01pm
martinned (mail) (www):
@Jay: Oops, I knew that. US attorneys are probably better considered a separate category. The idea was to put the number of political appointees at, say, a dozen per department on average, which would put the total there at 180. Add to that the US attorneys, various commissioners and administrators of agencies, and the number still comes out much lower than the current number.

And yes, I linked to the Yes, Minister wiki page in my previous comment, by way of qualifying what I wrote there. Seen every episode.
2.4.2009 6:08pm
NowMDJD (mail):

Obvious question first: where do you draw the line?

I think that's obvious. I draw the line at a court saying they are obliged to follow foreign rules that we have not subscribed to by treaty or executive agreement.

A court could quote a Yemeni district court opinion or a Zimbabwe rock group as persuasive precedent. Whatever they like.

But not as binding precedent.
2.4.2009 6:09pm
Ak Mike (mail):
martinned - just to second NowMDJD, many in this country prefer a government more directly and completely controlled by elected officials, as compared to a government most of whose functions are in the hands of career bureaucrats.

I would greatly prefer that a much higher percentage of government employees be appointed by those elected, and that fewer be insulated from political control. In general, more people in this country (USA) tend to think that way, and fewer think that career civil servants should be running things, than in Europe and other places. My own belief is that this relates to Europe's heritage of feudalism, and concomitant suspicion of democracy.
2.4.2009 6:11pm
Thales (mail) (www):
Anderson writes:

"Can you imagine a lawyer representing a client on death row and opting not to make an argument that would win and save his client's life?!?

No, but then, I'm not Houston Lawyer."

Agreed--if I am ever on death row in Texas, I will hire different counsel.
2.4.2009 6:13pm
NowMDJD (mail):

That, combined with comity between the parties, means that in a parliamentary system each government tries to be evenhanded about promotions and appointments, focusing on proven ability, so that no one will have cause to complain.

That might work in some parliamentary systems, but I doubt that it does in Turkey, Israel, or Japan, for example. I suspect that if a party has a strong, stable majority or if there are very basic differences among parties, then those in power try to ride roughshod.
2.4.2009 6:14pm
martinned (mail) (www):

That might work in some parliamentary systems, but I doubt that it does in Turkey, Israel, or Japan, for example. I suspect that if a party has a strong, stable majority or if there are very basic differences among parties, then those in power try to ride roughshod.

Well, yes, but then they'd have democratic legitimacy to do so. (By your own argument.)


My own belief is that this relates to Europe's heritage of feudalism, and concomitant suspicion of democracy.

@AK Mike: Have you been to Europe?

But seriously, how does this not make the case that there are too many political appointees in the US government generally, and in the DoJ in particular. (We can also talk about the Office of Civil Rights, if you like.)
2.4.2009 6:19pm
Thales (mail) (www):
I guess the ghost of the Cully Stimson scandal (Corporate clients should fire law firms that offer pro bono representation to accused terrorists/Guantanamo Bay detainees) is rearing its ugly head on this thread. Charles Fried said it best then:

It is the pride of a nation built on the rule of law that it affords to every man a zealous advocate to defend his rights in court, and of a liberal profession in such a nation that not only is the representation of the dishonorable honorable (and any lawyer is free to represent any person he chooses), but that it is the duty of the profession to make sure that every man has that representation.
2.4.2009 6:20pm
Jay:
I should say that I agree there are some obvious candidates for removal from appointed status. I would start with US Marshals, who are appointed by judicial district also. This has some sort of historical basis, I guess, but makes little sense in the modern era of professionalized law enforcement. I am not aware that they make any policy decisions.
2.4.2009 6:22pm
Nick056:
Mr. Groves,

You state that "the Senate should probe [Ogden's] beliefs regarding constitutional interpretation vis-a-vis foreign jurisprudence." This is your argument.

But your actual argument is that the Senate ought to do so based upon a brief Ogden submitted to the Court on behalf of a client. In other words, any argument Ogden makes while zealously defending a client should be presumed by Senators as probably indictative of far-reaching policy beliefs and serve as the basis for questioning on those grounds.

You suggest that he ought to be asked, on the basis of this brief, whether he thinks that in general the DP is appropriate for rape cases, or, more far-reaching than that, you suggest Ogden be asked, vis-a-vis to Life Without Parole, whether he feels international law ought to "trump the sovereignty" of 44 US states. It is shoddy and frankly unbecoming of you, Mr. Groves, to suggest that based on arguments contained within a brief on a client's behalf, Ogden ever wished that foreign law ought to "trump" any US sovereignty. He advocated that foreign law and foreign views be taken into account in interpreting language within the US Constitution, not "trumping" the US Constitution.

The questions you propose, far from a neutral probing into Ogden's policy beliefs, involve politically charged rhetoric designed to advance incorrect notions of what Ogden was even arguing (that foreign law "trumps" US law). You imply these distortive claims with no basis but a legal brief that does not even come within miles of making such arguments.
2.4.2009 6:33pm
Curmudgeonly Ex-Clerk (www):
Strict:

Like others, I do not think your examples are terribly persuasive. The reception of English common law after independence is an artifact of American history. As Professor Kenneth Anderson put it,
British law occupies a very special place with respect to the transition from the Colonies to the United States; there is no historically comparable body of law from any other source over which one could conceivably have the same argument.
For similar reasons, your reference to Blackstone is equally unpersuasive. As Justice Scalia once noted, old English law and Blackstone's commentaries are relevant precisely because of their intimate historical connection with American law. Citation of contemporary foreign authority is hardly analogous to the reception of English common law or citation of Blackstone.
2.4.2009 6:36pm
martinned (mail) (www):

The reception of English common law after independence is an artifact of American history.

How about contemporary common law? At the moment, all common law countries cite each other's precedents for persuasive value, except the US. (Donoghue v. Stevenson, for example, is cited everywhere else in the common law, even though it is a Scottish case.)
2.4.2009 6:41pm
Anderson (mail):
if I am ever on death row in Texas

Actually, this may explain a lot about the # of executions in Texas.

-- Re: porn in libraries, Google brings up this:

He has opposed filters on library computers protecting children from Internet smut

I would like to see the specifics here -- there are problems with such filters (how do you prevent porn without, say, disabling research into birth control methods?). Are only "children" protected, or do the filters affect all users?

Regardless, it doesn't strike me as absurd to argue that libraries that allow internet access can't regulate the (legal) content that's observed, tho here my sketchy grasp of the First Amendment arises ... time/place/manner restrictions might be reasonable, say partitions that prevent kids from seeing the screens, but don't shield the viewer sufficiently to encourage masturbation.
2.4.2009 6:53pm
Strict:

The reception of English common law after independence is an artifact of American history


Yes, and it is an example of widespread acceptance in America of using foreign law in the making of our own laws.

I understand that is because parts of America used to be governed by the British.

But other parts of America used to be governed by other sovereigns - and adopted the laws of such foreign sovereigns. For example, Louisiana's Civil Code [which was originally drafted in French] adopted a lot of law from France.

Yes, America has had intimate historical connections to foreign places. And America has adopted a lot of law from those foreign places.

So - appealing to foreign law is bad, even though our Founders did it all the time, and found it to be an acceptable and not "un-American" way of making law?
2.4.2009 6:54pm
ser (mail):
I guess conservatives dont know that the German Constitutional Court declared void a law based on Roe vs Wade because on demand abortion was in violation of human dignity.
They uphold the display of crosses in the classroom. The Christ no but the cross yes. Until now the Christ remain in classrooms because they didnt send a caterpillar to remove them.
And that is not new , the Former Reich Court copycated Lochner in 1925.
Exclusionary rule is valid partially only in Spain and Latinamerica.In Germany the evidence is valid , they punish the police.
The Europeans Court ususally base their decitions in american law but precedents and academics writings.
Exparte Milligan is part of human rights law all around the world. They same goes for Miranda.
2.4.2009 7:18pm
neurodoc:
FormerStudent: For example one might argue to a hypothetical jury of rabid racists that the victim deserved the horrible death they suffered at the hands of your client and therefore he should be acquitted. The fact that it might indeed save your client's life does not make it proper, and you are under no ethical obligation to make it.
Not the same or even close is it? He wasn't playing on the base emotions of a jury, he was arguing the law before an appellate court.
2.4.2009 7:19pm
CDR D (mail):
>>>So - appealing to foreign law is bad, even though our Founders did it all the time, and found it to be an acceptable and not "un-American" way of making law?


<<<

No, of course not. But you are speaking of the Founders, and what they "founded" was supposedly democratically enacted by the people of our country. They considered precedents from law going back to the classical era, wrote our Constitution, and submitted it for ratification.

To appeal to foreign laws which our people have had no voice in enacting, and binding them to those, is just plain wrong in my opinion.
2.4.2009 7:32pm
Curmudgeonly Ex-Clerk (www):
martinned:

I think citation of contemporary decisions from other, foreign common law jurisdictions likely should be eschewed by American courts as well, albeit for somewhat different reasons.

Judge Posner has observed that one "problem with citing foreign decisions in U.S. courts is that they emerge from a complex socio-historico-politico-institutional background of which our judges, I respectfully suggest, are almost entirely ignorant." Though Posner primarily seems to have had non-English-speaking courts in mind when he made this observation, I think it is almost as apt with respect to the other, foreign common law jurisdictions. Simply put, we Americans do not know enough about contemporary Australian common law, for example, or its evolution over time to make informed use of decisions from the land down under.

I also do not think that this fact can be attributed to parochialism. Fact is, American courts really do not need common law decisions from other countries. Each of the United States has many sister jurisdictions from which it may draw guidance and support, and these sister jurisdictions likely are far more similar to one another in terms of legal and cultural norms, institutions, and history than they are to foreign countries. So Texas need not look to contemporary Scottish decisions, for example, because it has so many other U.S. jurisdictions that it can consult. And, as a practical matter, I do not know how American lawyers could hope to keep up with the decisions of foreign common law jurisdictions on top of the welter of American case law being published.

Query: do foreign common law courts routinely cite the common law decisions of the various U.S. jurisdictions?
2.4.2009 7:37pm
MarkField (mail):

Statutes incorporating the law of the UK as is stood in 1775 is done for an obvious reason: it was also the law of that state in 1775.


California Civil Code Sec. 22.2 reads as follows: "The common law of England, so far as it is not repugnant to
or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State."

AFAIK, CA was never a colony.
2.4.2009 7:37pm
Ak Mike (mail):
martinned - yup, been to Europe, many wonderful places there, but I stand by my opinion that people there are happier being governed than they are here. Your link gives an additional reason that it's better to have political appointees than career bureaucrats - they are far more in the public eye, and their opponents have good reason to scrutinize their activities. Nobody pays much attention to what the career folks downstream do, and what they do is frequently much worse than what the political appointees do. For example, for decades the career FBI lab and field people cooked crime lab results in order to convict the accused, and no one knew. By contrast, everything done by a Bush appointee appears in the front page of every newspaper.

I think absolutely the US Attorney offices should have political control. The prosecutors have enormous discretion over who to charge, and limited resources - it should be a policy determination what offenses and what people to target. I would a lot rather that a political appointee be making that policy decision than some untouchable career prosecutor. Check out the movie Absence of Malice some time.
2.4.2009 7:55pm
martinned (mail) (www):
@Curmudgeonly Ex-Clerk: To start with your final question: no, the general impression is that on a lot of issues US common law has evolved in a different direction from the rest of the common law, exactly because they cite different precedents. (Meaning that it is a self-reinforcing development.)

Otherwise, I'm not sure Posner's right, at least not when his dictum is applied to other common law countries. Doesn't the ruling contain all anyone needs to know? The argument is written down by the judge, and if the court finds it persuasive, it can be cited. Context would be more of a factor in non-common law countries.

What does matter, now that I'm thinking about it, is the "common lawness" of US common law. The US legal system is much more based on statute and quasi-statute (UCC, Restatements) than US lawyers realise, compared to other common law jurisdictions.

P.S. If you want to keep up, look here.
2.4.2009 7:56pm
whit:

Not the same or even close is it? He wasn't playing on the base emotions of a jury, he was arguing the law before an appellate court.



even if he did, so what?

the job of a defense attorney is, within the bounds of the law, to get his client off - whether or not he is actually guilty.

an attorney playing to the base emotions of a jury is DOING HIS JOB. sure, when arguing to an appellate court, relying on base emotions may not be a good strategy (or maybe it is ... knowing some judges), but if a defense attorney can win by playing to a jury's emotions, why shouldn't he? after all, if you don't have the facts, don't argue the facts, argue emotion, distract, etc. ask johnny cochrane if that works (well he's dead, but ...).

again, the job of a defense attorney is not to seek justice or truth or anything else but that (first and foremost) his client gets the best possible result. as long as the defense attorney doesn't break the law to do so, i don't see what the problem is.
2.4.2009 8:21pm
Curmudgeonly Ex-Clerk (www):
Strict:

The distinction is that the old English common law received in the United States was not remotely "foreign" in the same sense as the contemporary foreign authority relied upon by Justice Kennedy in Roper v. Simmons, for example. I think your argument amounts to little more than semantic prestidigitation; it depends on the absurd pretense that there are no relevant differences between post-revolutionary reaffirmation of a common law previously in effect in the former colonies and reliance upon contemporary foreign decisions that have never been the law here.
2.4.2009 8:21pm
Calderon:
One question and one point. First, how did Ogden come to represent the defendant in Roper v. Simmons? Was he randomly assigned the case, just looking for some pro bono, or actively seek out a case to make these arguments? Where he falls on that spectrum would make a difference as to how likely he is to push the use of foreign law as a top DoJ official.

While lawyers of course have a duty of zealous advocacy, most of the time they have a choice as to whom they zealously advocate for. If a lawyer searched out cases to push a particular argument, one might reasonably think that lawyer agreed with that argument as a political matter.

Also, I don't see the problem with Groves saying Ogden's beliefs on this should be probed. He's someone identified with this particular argument on the use of foreign law and (depending on the answer to my first question) may have been looking for cases to voluntarily press it. He's being nominated for a powerful position where he could encourage US attorneys to rely more on foreign law -- or more specifically European law -- that would likely pull US law toward a more "liberal" view.

I think one could at least ask if he believes in the use of foreign law to interpret US law as a matter of policy. If he says "no," Roper was just a one-off case, then that's that. If he says "yes," then Groves et al. can make arguments about whether that should be a reason for opposing his nomination.
2.4.2009 8:36pm
xx:
"@xx: Hang on: How many? 1 AG, 1 DAG, Let's say 5 Ass. AGs and 50 US Attorneys = 57 by my count. "

94 U.S. Attorneys, one for each judicial district?
2.4.2009 8:49pm
Nick056:
Calderon,

He's asking senators to beg the question in inquiring if Ogden believes foreign law "trumps" the sovereign law of US states. Ogden never stated that any foreign law remotely takes precedence over US law. Ogden argued that, in line with the notion that we evaluate the Death Penalty and the 8th Amendment in the context of "evolving standards of decency," that we consider foreign law one pertinent standard of decency. People who find this repugnant to US autonomy may think it amounts to putting foreign law before domestic law, but that's very much in dispute.

In the name of merely probing for facts, Mr. Groves suggests that senators ought to ask Ogden questions that assume a negative characterization of his own position. If a senator wants to ask a politically charged question, one which perhaps distorts what Ogden even put forth, he's entitled to do so.

But I'm uncomfortable with someone encouraging the Senate to do exactly that and then claiming it's all about an objective probing for truth. If a senator characterizes Ogden as having argued that international law ought to trump domestic law, there's nothing limited or objective about that inquiry. He's saying the Senate ought to read an exercise of begging the question into the record.
2.4.2009 9:04pm
Alligator:

It seems to me that if you can read an ideological predisposition into the type of clients one represents, the arguments you make on their behalf may also be evidence of the attorney’s beliefs.

I disagree. Taking your comments on Roberts' confirmation hearings as true (I'm not familiar with the hearings), I don't see how that would support the notion that arguments made pursuant to an attorney's obligation to be a zealous advocate for his client are likely to reflect his personal beliefs. This idea might have more traction if, for example, Ogden had regularly defended accused mob bosses and always argued that RICO was unconstitutional. Then we might wonder whether he really believed RICO was unconstitutional and whether he would undermine its application.

But advocating foreign law in a single death penalty case is entirely different from a history of representing the same types of clients and making the same ideological arguments, at least when the attorney is in a position to chose whom he represents (unlike a a low level associate in a huge law firm). To be clear, I'm not asserting that such a pattern could really tell us anything, I'm just attempting to distinguish between the Roberts and Ogden situations.
2.4.2009 9:06pm
OgdenLove:
Orin, your perspective is plausible if you look at the Groves memo in isolation. But more information is coming out about Ogden every hour, and there's a theme: Over a period of many, many years Ogden chose to represent many clients whose success in court rested on the court embracing a problematic interpretation of the constitution. It is also being maintained that Ogden's memos to Justice Blackmun contained similar arguments. Wouldn't it be reasonable for a US Senator to ask Ogden about the issues raised in the Groves Memo in an attempt to determine whether the international law bit WAS simply a matter of representing a client?
2.4.2009 9:59pm
Jay:
To those citing the adoption of English common law as support for modern reference to foreign decisions:
Doesn't the fact that you're citing statutes undermine your point? I don't think anyone is arguing that a legislature couldn't adopt whatever body of law it wants as actual, substantive law. The question is whether the meaning of the federal constitution should be determined in reference to foreign law, on the initiative of the judiciary.
2.4.2009 10:01pm
OrinKerr:
OgdenLove,

Are you suggesting that David Ogden might be . . . . . liberal?
2.4.2009 10:08pm
NowMDJD (mail):

So the argument is that Ogden didn't really care about getting this defendant off, but saw this case as his big chance to accomplish his mission of getting foreign law incorporated into the Constitution? Okay...

No. It's your parody of an argument.

The argument is that some litigatos in Constitutional cases like this are interested in making law. The fate of their client is tied to their success in changing the law. But you actually didn't need anyone to tell you this.
2.4.2009 10:12pm
NowMDJD (mail):

I suspect that if a party has a strong, stable majority or if there are very basic differences among parties, then those in power try to ride roughshod.


Well, yes, but then they'd have democratic legitimacy to do so. (By your own argument.)

Precisely. I won't tell other countries how to organize their basically democratic governments. Some want to be more consensual, others more confrontational. The Netherlands works to the satisfaction of the Dutch.

Many of us here don't want our country to work that way. Neither do the Israelis or Turks. (I'm not trying to make a point about substantive political issues here.)
2.4.2009 10:19pm
Curmudgeonly Ex-Clerk (www):
Mark Field:

I'm not sure what point you are making with respect to California's reception of the common law. California's statutory reception of English common law dates back to when it first became a state in 1850. Lawrence M. Friedman, A History of American Law 274 (3d ed. 2005). California's reception resulted from Americans bringing their law with them to the West. See id. (stating that Gold Rush "brought a cataclysmic inflow of population" that was "mostly Americans, all totally ignorant of civil law" as context for reception). This seems fairly analogous to the enactment of reception statutes by the former colonies after the revolution.
2.4.2009 10:23pm
MarkField (mail):

To those citing the adoption of English common law as support for modern reference to foreign decisions:
Doesn't the fact that you're citing statutes undermine your point? I don't think anyone is arguing that a legislature couldn't adopt whatever body of law it wants as actual, substantive law. The question is whether the meaning of the federal constitution should be determined in reference to foreign law, on the initiative of the judiciary.


There are multiple strands to the debate here. My point about CA was directed at those who asserted that English common law was only adopted by the former colonies and thus couldn't be "foreign" in any meaningful sense. That's clearly not the case with CA's adoption (such as it is).

That's, admittedly, a side issue to the main one: to what extent courts should refer to foreign law. For that debate, it's important to state the issue correctly. Nobody is arguing that, as you put it, the meaning of the Constitution should be "determined" by reference to foreign law. It might, however, in some cases be helpful to see how foreign courts solve similar problems. It's a matter of what's persuasive, not what's demanded.


I'm not sure what point you are making with respect to California's reception of the common law. California's statutory reception of English common law dates back to when it first became a state in 1850. Lawrence M. Friedman, A History of American Law 274 (3d ed. 2005). California's reception resulted from Americans bringing their law with them to the West. See id. (stating that Gold Rush "brought a cataclysmic inflow of population" that was "mostly Americans, all totally ignorant of civil law" as context for reception). This seems fairly analogous to the enactment of reception statutes by the former colonies after the revolution.


Not in the sense which was being debated. See above.
2.4.2009 10:38pm
PubliusFL:
MarkField: Not in the sense which was being debated. See above.

The point is that it was not foreign to those who adopted it (migrants to California from other parts of the U.S.). It was the law they had always had. English common law was also American common law, and California law incorporated English common law because California became part of America and was (re)settled by Americans.
2.4.2009 10:59pm
Jay:
"Nobody is arguing that, as you put it, the meaning of the Constitution should be "determined" by reference to foreign law. It might, however, in some cases be helpful to see how foreign courts solve similar problems. It's a matter of what's persuasive, not what's demanded."

Well--"helpful" in the achievement of what aim? The specific objection of most of those who oppose the use of foreign law, I think, is to the way the Court used it in the 8th Amend. context. In that context, it seems pretty fair to me to say that the foreign decisions helped "determine" the meaning of the cruel &unusual punishment clause, or at least determine that it barred particular things.
Your use of the phrase "helpful to . . . solve similar problems" is wonderfully ambiguous--it is surely reasonable, if conducting a survey of best practices going forward, to see how others deal with the same problem. But that seems at least conceptually different than using what others do to interpret the meaning of a document democratically adopted in the past.
2.4.2009 11:06pm
hawkins:

Ogden chose to represent many clients whose success in court rested on the court embracing a problematic interpretation of the constitution.


Perhaps he's exceptionally skilled at advocating "problematic interpretations," whatever the hell that means.
2.4.2009 11:50pm
Steve:
The argument is that some litigatos in Constitutional cases like this are interested in making law. The fate of their client is tied to their success in changing the law. But you actually didn't need anyone to tell you this.

Sounds like you said what I said, friend. You spend a lot of time claiming that I'm being disingenuous when you don't even know me.

Look, plenty of people are anti-death penalty advocates. That's why they take death penalty cases. And one of the common anti-death penalty arguments is that we ought to take note of the international trend. If the courts scoffed at that argument, anti-death penalty advocates would try something different.

No one wants to introduce foreign law into the analysis just for the sake of introducing foreign law, they argue for it as a means to an end. The idea that based on this argument, there's reason to worry that Ogden might pursue some insidious pro-foreign law agenda at the Justice Department is pretty silly.
2.5.2009 1:34am
Anderson (mail):
Are you suggesting that David Ogden might be . . . . . liberal?

All I can say is, if Obama was going to appoint liberals, then he should have RUN as a liberal.

Or at least as the candidate of some political party known for its liberalism.

But no! he deceived us!
2.5.2009 9:27am
Calderon:
To Nick056:

But I'm uncomfortable with someone encouraging the Senate to do exactly that and then claiming it's all about an objective probing for truth. If a senator characterizes Ogden as having argued that international law ought to trump domestic law, there's nothing limited or objective about that inquiry. He's saying the Senate ought to read an exercise of begging the question into the record.

Well, I don't believe that criticisms of Ogden are going to be free from political interests, nor was Ogden's selection for the position free from political interests. My point was (depending on how Ogden got Roper and what else he has done) there may be reason to believe that he'll encourage the interpretation of domestic law through using foreign law, at least in the 8th Amendment and possibly other areas. If he says during hearing, "yes, I think our law can benefit from seeing what other countries will do," then Senators can use that statement in their evaluation of him. That evaluation (like his selection in the first place) will be political.

Alligator said (in responding to a different comment):

But advocating foreign law in a single death penalty case is entirely different from a history of representing the same types of clients and making the same ideological arguments, at least when the attorney is in a position to chose whom he represents (unlike a a low level associate in a huge law firm). To be clear, I'm not asserting that such a pattern could really tell us anything, I'm just attempting to distinguish between the Roberts and Ogden situations.

The first sentence is true, but it begs the question of whether Roper was an isolated case or part of a pattern of cases Ogden argued. If Ogden was the only death penalty case he had, and he didn't otherwise argue for use of foreign law in interpretation, that I'd agree there's not much point in questioning him. To me, this is a fact hole in Groves' article since it relies only on Roper (though maybe I missed other evidence since I didn't read it carefully).

That said, where an attorney has a pattern of seeking out particular cases to make arguments, I think there's a high likelihood that reflects their political beliefs. If an attorney defends death penalty defendants and always argues that the particular process for a verdict of death and process of carrying out the penalty is unconstitutional, there's a high chance they believe the death penalty is unconstitutional generally. If an attorneys seeks to defend people accused of possessing handguns by arguing that handgun bans are unconstitutional, there's a high chance that reflects their views about the 2nd Amendment. If someone argues a lot of free speech cases, good chance that reflects their views on the 1st amendment, and so on and so forth.

So if (and admittedly this is a big if, there are other cases where Ogden has argued for the use of foreign law, there's good reason to believe he personally is in favor of using foreign law to interpret the Eighth Amendment or maybe in other circumstances. Asking whether he'll translate that potential preference into policy at DoJ seems like a fair question to ask.
2.5.2009 9:39am
CJColucci:
This just in: the Obama administration is being staffed by Democrats and lib'ruls. Film at 11:00.
There are people who find this disturbing. They had an opportunity to prevent it. They lost.
There are no rules here, and no principles. Any lawyer of any consequence has done something or other that someone with a different political orientation or legal philosophy is going to dislike. If such a lawyer gets appointed to a position requiring Senate confirmation, it's fair game to take these things and run with them -- for all sides.
That said, I'd be astonished if this stuff about Ogden gets any traction, and politicians of any sense will probably be well-advised not to make more than a token fuss about it. Some politicians, of course, aren't sensible, and some, sensible or not, represent senseless constituencies and have to do what they have to do.
Nothing to see here.
2.5.2009 11:06am
Dave N (mail):
I said way up thread that I think that Mr. Ogden should be confirmed as Deputy Attorney General.

But I do think it is disingenuous to suggest that he should not be questioned about how he became the author of the Roper v. Simmons brief. I strongly doubt that Mr. Ogden was counsel prior to the Supreme Court, which means he was recruited.

There is nothing wrong with that--there are advocacy groups on all sides and they know attorneys sympathetic to their positions--but it is certainly within bounds to ask Mr. Ogden how he became involved with the case.
2.5.2009 11:24am
trad and anon:
These histrionics about how horrible it is to cite foreign courts as persuasive authority in constitutional cases are quite beyond me. States cite the constitutional cases of other states as persuasive authority all the time, even though they're interpreting different constitutions written at different times.

Of course there are reasonable arguments for not treating the constitutional decisions of foreign courts as very persuasive. Their constitutions are much less similar to ours than are the constitutions of different states. The differences between the legal traditions of different nations are larger than the differences between the legal traditions of different states. Many foreign constitutional decisions are in foreign languages American judges may not be able to read. But I don't get why a certain strain of conservative starts hyperventilating as soon as a foreign case is even mentioned.
2.5.2009 11:30am
MarkField (mail):

The point is that it was not foreign to those who adopted it (migrants to California from other parts of the U.S.). It was the law they had always had. English common law was also American common law, and California law incorporated English common law because California became part of America and was (re)settled by Americans.


Even putting aside the large number of former Mexicans in CA in 1850 -- who certainly had no background in common law of any kind -- I don't think this is accurate in the sense of the debate here. By 1850, few Americans would have considered English common law (as opposed to their own developed common law, perhaps based originally on English) to be anything other than foreign.


Well--"helpful" in the achievement of what aim? The specific objection of most of those who oppose the use of foreign law, I think, is to the way the Court used it in the 8th Amend. context. In that context, it seems pretty fair to me to say that the foreign decisions helped "determine" the meaning of the cruel &unusual punishment clause, or at least determine that it barred particular things.
Your use of the phrase "helpful to . . . solve similar problems" is wonderfully ambiguous--it is surely reasonable, if conducting a survey of best practices going forward, to see how others deal with the same problem. But that seems at least conceptually different than using what others do to interpret the meaning of a document democratically adopted in the past.


I was trying to do two things in my post: correct the misstatement of the strength of the "pro-foreign law" argument; and re-state the issue in the way I personally think is most defensible. My own view may understate the Court's use (just as the previous commenter overstated the Court's use).

By the way, I don't agree that the "democratic adoption in the past" is relevant to the particular clause at issue in death penalty cases. If any clause in the Constitution cries out for interpretation according to changing standards, it's the "cruel and unusual punishments" clause.
2.5.2009 11:43am
Curmudgeonly Ex-Clerk (www):
Mark Field:

I think you may exaggerate the extent to which homegrown American case law had eclipsed English common law at the time California became a state. Many states--such as Georgia, Kentucky, Maryland, New York, and Pennsylvania--only established official case law reports by statute in the 1840s and 1850s. Frederick G. Kempin, Jr., Precedent and Stare Decisis: The Critical Years, 1800 to 1850, 3 Am. J. Legal Hist. 28, 35-36 &nn.22-24 (1959). So the native materials on which American lawyers and judges generally might rely prior to this period consisted of private, entreprenurial reports of varying quality. This isn't to say that American courts might not have adapted English common law to better suit conditions in America by the time that California became a state. But I don't think American common law was nearly as developed as your prior comment seems to suggest. If it had been so, there would have been no need for a reception statute in California (or at least not one that referenced English law).

One also should bear in mind that the very concept of binding precedent had only begun to solidify and take shape in many U.S. jurisdictions at the time that California entered the Union. For example, Maryland and Pennsylvania courts did not adopt a doctrine of binding precedent till the early 1850s; that is, the high courts of these states only gradually came to regard their own prior decisions as controlling in subsequent cases. See Kempin, supra, at 39-41. Prior to this time the declaratory theory of the law held sway, under which previous decisions were treated as mere evidence of the law. In this chaotic legal environment, recognition of foreign precedent is understandable and relatively unproblematic, as every authority is in effect no more than persuasive precedent. That is no longer the case in American law, however. For these additional reasons, I do not think your citation of California's reception statute is very convincing as evidence of American reliance on "foreign law" as that phrase is understood in the present debate over citation of foreign authorities.
2.5.2009 1:07pm
Allan L. (mail):
Common law development is analogous to biology. Ignoring foreign law has consequences that can be compared to exclusive inbreeding.
2.5.2009 1:38pm
MarkField (mail):
All fair points, CEC. There are two other factors which I would add. One is that there was a very strong culture of Anglophobia in early 19th C America outside of New England. The Jacksonians, in particular, viewed England with considerable suspicion and fear. We had repeated diplomatic quarrels with England over Texas (Pakenham Letter), Maine (resolved in the Webster-Ashburton Treaty), and Oregon (54-40 or Fight). Speaking generally, I think the average American considered England "foreign" at this point in our history.

This doesn't mean the legal system couldn't adopt a different attitude. For that I'd note only that there was a strong move in that era to emphasize an American common law system (see Swift v. Tyson). That also seems to me inconsistent with treating English law as domestic in the sense we're discussing here.

Obviously, the later in time the judiciary relied on English law, the less persuasive it is to argue against any citations of "foreign" law. To that extent, I'd say that my original point is still valid even if not determinative.
2.5.2009 1:48pm
whit:

These histrionics about how horrible it is to cite foreign courts as persuasive authority in constitutional cases are quite beyond me. States cite the constitutional cases of other states as persuasive authority all the time, even though they're interpreting different constitutions written at different times.

Of course there are reasonable arguments for not treating the constitutional decisions of foreign courts as very persuasive. Their constitutions are much less similar to ours than are the constitutions of different states. The differences between the legal traditions of different nations are larger than the differences between the legal traditions of different states. Many foreign constitutional decisions are in foreign languages American judges may not be able to read. But I don't get why a certain strain of conservative starts hyperventilating as soon as a foreign case is even mentioned.



it's quite simple. america is DIFFERENT. we revel in our difference, and we do not look to other countries (and god forbid - old europe) to look for what is right and wrong.

the fact that america is different was obvious all the way back in the days of de toqueville and others who frequently pointed out the uniqueness of america.

so, it galls (imo any american who understands the history of america) me when we look to a foreign court for "guidance".
2.5.2009 2:02pm
CJColucci:
whit:
Were you trying to answer trad and anon's point, or prove it?
2.5.2009 2:19pm
Allan L. (mail):
I think it more likely that whit is illustrating my argument about inbreeding.
2.5.2009 5:48pm
NowMDJD (mail):

Common law development is analogous to biology. Ignoring foreign law has consequences that can be compared to exclusive inbreeding.

How so? Example? Do we really ignore foreign law?

BTW, some readers and posters seem not to understand the term of art, "persuasive precedent," which means that a court likes an argument it reads, and adopts it with attribution. The contrasting concept is "binding pecedent" which means that a court (usually a lower court)must accept and apply a previous holding by a higher court.

So a state court cannot, for example, judge school enrollment policies using the "separate but equal" doctrine, because the US Supreme Court has adopted a conflicting Constitutional standard.

But any court can use any argument supplied by anyone, as long as it is compatible with the structure of that jurisdiction's laws. The New York Court of Appeals could cite the Code of Hammurabi with respect to medical malpractice, for example (I hope it doesn't!), as long as it doesn't use it to adopt an unconstitutional remedy like putting doctors to death for negligently causing the death of patients.

I don't understand why people get worked up over this. For all I care, a court can cite with approval the laws of the Padishah Emperor. I suspect that some people just don't distinguish between persuasive precedent 9which isn't really precedential at all) and binding precedent.

I get worked up when people suggest tht foreign law should bind our courts-- a whole different ball of wax!
2.5.2009 5:54pm
Scott Jackson (mail):
Ummm, correct me if I'm wrong, but isn't English Common Law typically cited for interpretation of US Statutes (and has been since the inception of the Justice system of the US)? What's wrong with citing foreign law?
It's cool, though. Apparently wingnuts who have never seen the inside of a law school deserve to have their legal opinion realized alongside JDs and LLMs.
2.5.2009 6:43pm
Curmudgeonly Ex-Clerk (www):
Scott Jackson:

Probably the two most notable detractors of the use of foreign law are Justice Scalia and Judge Posner. Whatever the merits, they're hardly "wingnuts who have never seen the inside of a law school."
2.5.2009 7:22pm
CDR D (mail):
>>>Apparently wingnuts who have never seen the inside of a law school deserve to have their legal opinion realized alongside JDs and LLMs.


<<<

Heh.

No, of course not! Why in hell should anything a bunch of wingnuts think matter?


That's why the Preamble to our Constitution states:

"We the JDs and LLMs of the United States...."
2.5.2009 7:26pm
common sense (mail):

What I find completely ironic is that we have judges and lawyers in America already quoting International Law when we haven't ratified a treaty, such as the Rights of the Child, and then countries who ratified it 10 or more years ago don't follow it AT ALL, but they are on the "good guy" list because they ratified and then ignored it. What kind of hypocrisy is that?
Here's a wild idea; since so many here think America infringes on other countries sovereignty all the time, thinking that is very important, why don't we consider maintaining our own sovereignty? America is by far better at upholding individual rights than most any other country in the world, so why would we want to lower that standard to the world's standard?
David Ogden won't uphold American soverignty, he'll abolish it.
2.6.2009 9:50am
Virginia Lawyer (mail):
Interesting that no one is discussing Ogden's brief before the Supreme Court in Knox v. US, where he represented child pornographer Stephen Knox. Knox was convicted on child pornography charges concerning videos of several children. The children were deliberately posed so that the focus of the depictions was on the children's genitals, covered or partially covered by underwear or other cloth. The brief asserted that such was protected by the First Amendment. Not exactly my idea of a great choice.
2.9.2009 1:05pm
Mikey (mail):
As I understand the arguments here:

1) asking Ogden his personal views on these--and presumably other--issues is irrelevant because A) DOJ's #2 does not typically get involved in these types of cases, or B) these questions are mere "stealth" tactics designed to scuttle his nomination, or C) DOJ #2 nominees haven't been asked these questions before, so why ask Ogden?

Well, it seems that while the Constitution may be a "living, breathing document", Ogden's DOJ job description is written in stone, unchanging through the ages. He does not currently advise or impact prosecutions (which may or may not be true) and thus he never will. Puh-leeeeze.

As for option B: even if true, so what? Dude, an unspoken agenda! Like that's never happened before. And orange crayons taste best.

If he does express his personal points of view, some Senators will applaud them, some will decry them, some won't give a s**t. Just like the commenters here. They aren't binary questions, after all. He can refuse to answer, answer yes, or no, or stick your right-wing questions you-know-where, whatever.

As for option C: even if true, so what? Someone had to be asked a specific question, for the very first time, ever. Why not Ogden? What special immunity exempts him from unique questions? Some here may feel Obama rates such tenderness...but Ogden?

2) Unwarranted conclusions are being drawn from one or two cases when Ogden was counsel for the defense. Apples and oranges as far as the DOJ job is concerned.

Fine. Also irrelevant. If I wish to ask Ogden questions about foreign law being considered in U.S. courts, I may not care if he argued for or against it, whether he served as defense counsel or not, or whether he argued a single relevant case, one hundred cases, one thousand, or zero. I may simply want to know what his legal mindset is. He can explain other relevant factors in his response. Or not.

Many commenters here apparantly believe Ogden is a potential victim of some sort. Oh, the humanity. Anyone see the Roberts or Alito confirmation hearings? Or Clarence Thomas'? Enough said. Are you asserting that Ogden's legal views shouldn't be probed...at all? Really?
2.9.2009 7:03pm

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