...Yale law school dean Harold Koh is widely regarded as a leading contender for a Supreme Court appointment if Barack Obama becomes president. What sort of a justice would Harold Koh be?Change you can regret.
Koh believes that it is “appropriate for the Supreme Court to construe our Constitution in light of foreign and international law” in “at least three situations”: (1) “when American legal rules seem to parallel those of other nations”; (2) when (quoting Breyer) “‘foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances’” and we can draw “empirical light” from their experience; and (3) “when a U.S. constitutional concept, by its own terms, implicitly refers to a community standard”. (Koh, International Law as Part of Our Law, 98 Am. J. Int’l. L. 43, 45-46 (2004) (emphasis added).) As the italicized weasel words indicate, in the hands of a living constitutionalist like Koh, foreign and international legal materials will virtually always be available to a transnational judge to help him reach the result he wants to reach.
Koh’s own writings amply prove this point. Koh believes that foreign and international law supports the conclusion that the death penalty always violates the federal Constitution: “The evidence strongly suggests that we do not currently pay decent respect to the opinions of humankind in our administration of the death penalty. For that reason, the death penalty should, in time, be declared in violation of the Eighth Amendment.” (Koh, Paying “Decent Respect” to World Opinion on the Death Penalty, 35 U.C. Davis L. Rev. 1085, 1129 (2002).)
Hat tip PowerLine.