Your nominee to the Ninth Circuit Court of Appeals, Berkeley law professor Gordon Liu, wrote that “the use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years. The U.S. Supreme Court has cited foreign authority in cases limiting the death penalty and invalidating criminal laws against homosexual sodomy, among others. The resistance to this practice is difficult for me to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.” A cloture motion on Professor Liu’s nomination failed in the Senate last week.
Do you find the use of foreign authority in American constitutional law controversial? Do you find resistance to the use of foreign authority difficult to grasp? Do you favor the use of foreign authority to forge “solutions to common legal problems?” If so, are there any legal problems for which you’d never resort to foreign authority? If so, which problems and why?
Is it your belief that 200 years of American constitutional jurisprudence provides insufficient, incomplete, or inferior guidance to our judiciary? Or is it that American authority fails to provide the guidance some prefer?
Bonus question: Professor Liu also has criticized Supreme Court cases that prohibit the use of state-sponsored racial preferences and other forms of racial engineering to redress general societal discrimination. Do you concur with Professor Liu’s criticism?