Nino Jumps Ugly at Congress Over Foreign Law

This is a great story to end the week. United States Supreme Court Associate Justice Antonin Scalia made headlines again recently but it's not what you think. He didn't get in trouble, or make an offensive gesture, or go hunting with another litigant in a case before him. This time, Justice Scalia scolded his fellow conservatives in Washington for trying to undercut the Supreme Court's authority.

Speaking to the National Italian American Foundation, Scaliia told Congress to halt its efforts to try to ban the Supreme Court, or any federal court, from applying foreign-law principles to domestic rulings. "It's none of your business," the Justice said through the crowd to Congress. "No one is more opposed to the use of foreign law than I am, but I'm darned if I think it's up to Congress to direct the court how to make its decisions."

"Let us make our mistakes," the Justice continued, "as we let you make yours." And if this were the end of the story it would be enough, right? After all, it isn't every day that the conservative movement's legal darling takes it to task for proposing a more conservative approach to judicial decision-making. But it's not the end of the story. It gets even more bizarre.

After hearing about Justice Scalia's remarks, the Washington Post reported, Rep. Tom Feeney (R-Fla), who already has done more to undercut judicial authority than any single current member of Congress, said that Scalia "needs our help, even if he doesn't want it" when it comes to precluding foreign-law influence here at home. This from a guy who said that Scalia's comments were, the Post reported, "like being told your favorite baseball player disagrees with your approach to hitting."

Leave it to Feeney to get it wrong again. The Justice doesn't just disagree with Congress' approach to hitting. He wants the legislators to stay out of the batters box altogether.

Have a safe and happy weekend. I'm sure it will be tough for y'all to wait for the next post, on Monday, and also for my weekly column, which will focus upon, wait for it, the Judicial Transparency and Ethics Enhancement Act of 2006. You can stop yawning now.

By  |  May 19, 2006; 4:30 PM ET
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I see no difficulty in our Supreme Court using foreign law as a reference in considering any issue before it. Use as a referemce is in no way binding upon our court and merely reflects respect for the views of other legal authorities. I cannot imagine why this view should be a controversy.

Posted by: Roy Martin | May 21, 2006 10:07 AM

Let me see if I understand this: If Congress makes a mistake, the SC kills it with the stroke of a pen.

If the SC makes a mistake, it takes a constitutional amendment.

Where did Nino leave his brains on this one?

Actually, while I beleive he is like the stopped clock which is right twice a day, this time the clock is wrong.

The degree of time, effort, and ruined lives involved while correcting a SC mistake makes foolish his air-headed request to allow the SC to err with an attitude that its mistakes are merely intellectual sparring points without concrete effect on society.

How many blacks, uneducated and abused to ungodly extremes, lynched with impunity either through mob rule or a judge's granting of the mob's death lust, went by from the Plessy vs. Ferguson "mistake"?

Apparently, Nino has no concept of his own dribbling down the chin of his public face.

What you have here is another exciting example of the disconnect between the SC and the society. The butchering of the nomination of a female with "everyday people" credentials, as opposed to the elitist credentials of sucessful male SC nominees, illustrates again how the elitists preserve their hold on the legal factories.

Practicing law is today replaced by producing law. Lawyerism long ago lost its pretensions of being a profession, by any essence of the word's meaning. It is now a factory job, with J.D.s and LL.Bs tightening the screws with the air wrenches of filings they use on the assembly lines of jurisdictional dockets.

So, carry on, Nino. You are immune from the Don Quixote of Congress, Tom Feeney. Your brethern on the bench and in the elitist law factories and their sandlot training academies will merely redefine the issues, legislate by writ, and rule against meaningful change.

Self-preservation will again trump self-respect.

The next time a lawyer, judge, justice, or professor pontificates at a public gathering about the way revolutionaries make lawyers the first to go up against the firing squad's wall, it will be well to merely assume a bemused contenence at the speaker's brain-dead failure to recognize that ultimately, the only way to bring the law back to the society it is meant to define, is to eliminate those editing society's dictionary.

Posted by: Kenneth E. Lamb | May 21, 2006 04:05 PM

Andrew: I am favorably impressed by your wise decision not to offer opinions on verdicts that have yet to be rendered. I wish all pundits would do the same.

While Ken Lay is not in the slammer yet and may never go, I would think that his horrific performance as Marie Antoinette was not something his lawyers planned.

Scalia is a puzzle, isn't he? His recent opinions on the Confrontation Clause have been unexpected and very welcome. Whatever else one might have to say about Scalia, he is a true intellectual, and he is right to defend the independence of the judiciary.

Posted by: attorneyofrecord | May 21, 2006 10:13 PM

Judicial review is not the equivalent of judicial supremacy. Scalia admits that the Supreme Court makes mistakes, although he avoids stating that he makes mistakes. Sure, Congress makes mistakes and the President and his Administration make mistakes. All three branches are to uphold the Constitution and the laws of the nation (some of which laws may be mistakes). So we have in a sense circularity. Perhaps in the end "We the People" resolve these mistakes by voting. But it sure takes an awfully long time. And "We the People" can make mistakes as well - just look at the results of 2000 and 2004.

Posted by: Shag from Brookline | May 22, 2006 06:09 AM

Let's get one thing straight: Feeney and his ilk don't care about legal niceties such as the correct place of international law in US constitutional jurisprudence. They care only about the holding of the case. Had the Supreme Court used international law to uphold the sodomy laws, they would have cheered the result. Scalia at least has some intellectual honest; Feeney and his ilk have none.

Reeney represents the radical right. They say Plessy was correct and Brown v Bd of Education wrong. It was bad enough they had to let blacks ride on the bus. Now they even have to let gays sit next to them.

This is what it's all about.

Posted by: George | May 22, 2006 04:01 PM

After watching the Media's Role and Responsibilities in Leaks of Classified Information on C-SPAN I thought about Mr. Feeney. I wonder if he would agree with his fellow Republicans on the committee that we should look into using British Law when dealing with the 1st Amendment issues regarding the press. How strange it is that Republicans would want to go back in time and follow the queen. I wonder why we haven't heard from him on this issue of using foreign law to "protect" us dumb citizens from the 1st Amendment. He should comment on this immediately and stand strong with Americans like Mr. Isaacson. Ben Franklin is watching you Mr. Feeney and so are we.

Posted by: Laurie Gerker | June 2, 2006 08:17 AM

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