Solicitor General (and Supreme Court nominee) Elena Kagan has taken some fire for her views relating to international law, which I would characterize as decidedly middle of the road. Critics have urged that Kagan’s love of a certain foreign jurist is troubling, and that her “replacement” of constitutional law with international law was odd. But in her written responses [PDF] to questions from Senator Grassley, Kagan again distanced herself from any approach (like Harold Koh’s) that would aggressively incorporate international law into domestic law:
I believe that the role of domestic courts is to decide the cases that come before them based on the law. In some rare circumstances, United States law may require a court to look to foreign or international law to resolve the parties’ claims. I do not believe, however, that courts should view their role as domesticating international law into U.S. law or as using their interpretive powers to promote the development of a global legal system.
That seems pretty reasonable to me. But not to the Home School Legal Defense Association (HSLDA):
HSLDA has been concerned about Ms. Kagan’s nomination because of her support of international law over the U.S. Constitution while she was Dean of Harvard School of Law. Our concerns were not alleviated, but only grew with Kagan’s answers during her hearing.
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We are concerned about Kagan citing foreign or international law as a Supreme Court justice because of the danger that could ensue if she ever cited the U.N. Convention on the Rights of the Child (CRC) as precedent in a Supreme Court opinion. This treaty could severely limit parental rights.
Wait, what? HSLDA is worried that Kagan might incorporate some international law into Supreme Court decisions, which might include a particular treaty (the CRC), which might be somehow relevant to a decision of the Court, and might result in more limits on parental rights?
You know, I fancy myself a pretty conservative guy. But if this is really the type of stuff that we have to worry about with Kagan, then I say go ahead and confirm her.
-Michael
HSLDA is headquartered out of Patrick Henry College, a fundamentalist Christian college which is located right in Purcellville, VA. It’s an interesting demographic blip — occasionally I’ll run across groups of PHC students out and about in P’ville which is otherwise a lot like the rest of northern Virginia.