Kagan on international law: “A blank slate”

If the recent contentious confirmation hearings of judicial nominee Goodwin Liu and State Department legal advisor Harold Koh are any evidence, the question the role of international law and whether it is proper to use foreign judgements in deciding cases, has quickly joined issues like abortion and executive privelege as a lightning-rod topic that nominees can expect to be grilled on. 

With little in the public record to suggest what Barack Obama’s Supreme Court nominee thinks about the issue, I spoke with Diane Marie Amann, director of the California International Law Center at UC Davis, and founder of the popular legal blog IntLawGrrls, about how much we can tell about how Elena Kagan sees the world: 

JK: What evidence from Kagan’s career, might shed some light on her views on international law?

DMA: It’s really hard to read the tea leaves. She’s done two stints now in the executive branch, in the Clinton and Obama administrations. Both of those administrations have dealt with transnational criminal law, either in the context of the war on drugs or the campaign against terrorism. The positions that would have been taken there would have been very much in favor of expanding the reach of U.S. law enforcement to deal with those issues. The role that she played in helping craft those policies, and most recently [as Obama’s solicitor general] in making those arguments in front of the Supreme Court, have to be an important part of trying to assess her stance on these issues.

At the same time, she’s not an international lawyer. Her specialty in academia was domestic constitutional law, the law of the U.S. federal court. She did not write on issues related to international law. It’s probably fairest to say she comes to the confirmation hearings with an almost clean slate on these issues.

JK: What about the debate over citing foreign case law and using international standards to inform judgements. Do we know anything about she comes down on that?

DMA: Well she certainly is aware of the debate and the controversy around it. In the early 2000s, she invited justice Ruth Bader Ginsburg to defend the practice at a women’s leadership summit at Harvard, but she didn’t tip her hand. I’m sure she knew Justice Ginsburg would defend it, but she didn’t offer any follow-up comment. 

JK: If you could question Kagan at her confirmation hearing, what would you ask to find out more about her position on these issues?

DMA: I would be curious to know if she had any training in international law as a law student, in briefs that she’s written or policy discussions she’s been involved in, or in her work as the law dean, and what the nature of that training was. Then also, her attitude toward it: the question of whether it’s appropriate for U.S. courts to look  to foreign context and foreign judicial decisions to figure out how to interpret similar provisions in American law is an important question.

I have no doubt that she’ll be asked that question. If you look at the recent panel hearing for Goodwin Liu, the nominee to the 9th circuit, a number of senators repeatedly asked Liu that question. In many ways, watching that hearing seemed to me to be a preview to what we can expect with the Kagan hearing. There’s not doubt she’ll be asked the question. What’s open is whether she’ll answer it. Justice Sotomayor’s hearing last year indicates that she’ll probably try to deflect that question.

JK: It does seem like the question of foreign case law has become much more controversial lately, in the confirmation of Harold Koh as legal advisor to the State Department, for instance.

DMA: There’s a certain segment of the senate that is extremely concerned about what they perceive as a judicial inclination to follow foreign law. Personally, I believe that they’re wrong on their understanding of what the court has been doing. What the Supreme Court did, even in the most noteworthy cases like the juvenile death penalty case, was to try to interpret very open terms like "cruel and unusual punishment" to interpret what those words mean in contemporary society, including within their survey what they call "civilized society," allies of ours and countries that share our traditions – taking their experiences into account but not by any means, being required to follow suit. For a number of senators, the belief is that the justices have been feeling beholden to those foreign judgements.

JK: What are some of the biggest international issues that might come before the court in coming years?

DMA: We know that the U.S. campaign against terrorism will continue for the foreseeable issues. This will raise all kinds of issues that intertwine American domestic law and American obligations under international law, such as the Geneva Conventions and the Convention Against Torture. There’s no question that she would be dealing with these issues, perhaps even in her first term.