Posted on 03/22/2006 5:56:38 AM PST by yoe
Jim Lindgren at the Volokh Conspiracy provides a thoughtful, well-reasoned response to my suggestion that there now exists a case for impeaching Justice Ginsburg based on the use she wants to make and/or is making of foreign law in constitutional adjudication. Lindgren concludes: "I don't know whether a Justice should ever be impeached for holding a bad judicial philosophy, but such a philosophy would have to be far more unusual than Justice Ginsburg's to form a plausible basis for impeachment."
As Lindgren notes, I'm not advocating that Ginsburg be impeached -- I haven't studied the matter enough to know whether the case for impeachment is ultimately persuasive and, in any event, any such attempt would be futile. Thus, the issue is an academic one, as far as I'm concerned. But since I raised the matter without really explaining myself, let me respond to some of what Lindgren and his colleagues Steve Calabresi and Stephanie Zimdah say about the matter.
First, I agree that when the constitution frames the issue in terms of whether something is "reasonable" or "unusual" it is not beyond the pale to look at foreign practice. Second, I agree that citation to foreign law "is least justifiable" (but I would say "not justifiable") "when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States."
Third, I think that Lindgren, Calabresi, and Zimdah may not fully appreciate the project that Justices Ginsburg and Breyer have embarked on through their reliance on foreign law. As I argued here (relying on an unpublished paper by Jeremy Rabkin) the Supreme Court's recent use of foreign law is founded on the notion that history is a progress towards an absolute (and therefore geographically universal) idea, and that the Supreme Court's task is to discern and give voice to the contours of that idea, wherever they are revealed, and regardless of what [the] Framers may have written or intended.
Justice Ginsburg has argued that Framers' stated general intent to form a more perfect union provides a basis for using foreign law to override (as outdated) fixed principles that the Framers thought would make the union more perfect. She has also advanced the need to improve the United States' world image as a basis for looking to foreign law. Although I haven't surveyed the history of Supreme Court reliance on foreign law as Calebresi and Zimdah have, I suspect that these justifications for applying foreign law are unusual. They are certainly subversive.
Finally, can a judge ever be impeached for holding a bad judicial philosophy? I think the answer must be yes. A judicial philosophy holding that the law should be the opposite of what the Constitution says would merit impeachment. So would a judicial philosophy to the effect that the words of the Constitution are not binding in constitutional adjudication.
Ginsburg does not hold the first of these lawless philosophies and has never expressed the second. But, as we have seen, she does appear to believe that 21st century "global" opinion can be as or more useful in constitutional adjudication than the 18th century opinions that were written into the document itself. And she also seems to think that the desire to curry favor with foreigners is a legitimate factor in constitutional adjudication. These views strike me as essentially lawless and highly unusual.
So yes, to the extent that Justice Ginsburg holds these views and allows them to enter into her decisions I think there is a case for impeachment.
For sleeping in court?
No way. But if she keeps falling asleep at the bench, maybe there'll be medical grounds...
I don't care why she leaves, just as long as it is soon. She IS a cancer on the snooze.
We have a winner!
BUMP!
Rhino369 for President in 08! You've got my vote Rhino.
Be nice. A good example for future justices. I'd support it whole-heartedly.
But it ain't gonna happen.
We can't impeach her for sleeping on the job?
Just another liberal goon....she's an old hag...
If they couldn't remove Samuel Chase, they'll never remove anybody. Impeachment is of little account without conviction.
Don't the Justices take an oath to support and defend the Constitution and the laws of the United States.
Wouldn't an opinion based on foreign law that ran counter to the Constitution or the laws of the US be a violation of their oath?
James Grimes, during the Johnson hearings in the 1800s: "I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an unacceptable President. Whatever may be my opinion of the incumbent, I cannot consent to trifle with the high office he holds. I can do nothing which, by implication, may be construed as an approval of impeachment as a part of future political machinery."
Isn't this what the amendment process is for?
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