In this installment of the most profane, intellectually-stunted, and ludicrous statement made on Colorado talk radio today, Mike Rosen of Newsradio 850-KOA falls victim to a whole other definition of “judicial activism”.From Rosen’s November 20 broadcast:
ROSEN: When I, when I hear Justice O’Connor — and this was a reference that Judge Pickering made in that piece I mentioned from The Wall Street Journal — he said, and he’s quoting now from Justice O’Connor, quote, “We will rely increasingly on international and foreign law in resolving what now appear to be domestic issues.” She called reliance on foreign law “transjudicialism” and proclaimed that reliance on foreign law “will create that all-important good impression” — I guess on our, our friends and neighbors overseas. I think that’s a classic example of judicial activism; I don’t think foreign law is in any way, shape, or form material in a Supreme Court decision.
For the moment, let’s just put aside Rosen’s preposterous claim that U.S. law exists in its own hermetically-sealed vacuum sans “taint” from international law. The bigger issue with this whopper of a claim is endemic of right wing talk radio — a lack of factual basis.
The Atlanta Journal-Constitution reported on Justice O’Connor’s remarks at the Southern Center for International Studies in 2003 which Judge Pickering takes issue with:
The U.S. judiciary should pay more attention to international court decisions to help enrich our nation’s standing abroad, U.S. Supreme Court Justice Sandra Day O’Connor said Tuesday.
“The impressions we create in this world are important and they can leave their mark,” O’Connor said.
On the whole, the U.S. judicial system leaves a favorable impression around the world, she said “but when it comes to the impression created by the treatment of foreign and international law and the United States court, the jury is still out.”
The 73-year-old justice, considered by many to be the most influential member of the nation’s highest court, made her remarks to a dinner sponsored by the Southern Center for International Studies.
… snip …
“I suspect … that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues.” O’Connor added that doing so “may not only enrich our own country’s decisions, I think it may create that all important good impression.”
Instead of responding to the source of the remarks, Rosen relied on a letter penned by retired conservative federal appellate court judge Charles Pickering Sr. – who has been described as having “demonstrated a record of hostility to key principles that protect civil and constitutional rights” by People for the American Way.
Judge Pickering’s letter, however, completely distorted Justice O’Connor’s statement by substituting the word “resolving” for “examining”:
Justice O’Connor on another occasion posited that “we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues”; she called reliance on foreign law “‘transjudicialism'” and proclaimed that reliance on foreign law “will create that all-important good impression” (again a policy, not a judicial, consideration).
And Rosen happily parroted it on his show because it fits his conservative bias.
According to Merriam-Webster:
1 a : to inspect closely b : to test the condition of c : to inquire into carefully : INVESTIGATE
2 a : to interrogate closely
intransitive verb : to make or give an examination
1 obsolete : DISSOLVE, MELT
2 a : BREAK UP, SEPARATE
3 : to cause resolution of (a pathological state)
4 a : to deal with successfully : clear up
5 : to reach a firm decision about < resolve to get more sleep > < resolve disputed points in a text >
6 a : to declare or decide by a formal resolution and vote b : to change by resolution or formal vote
8 : to work out the resolution of (as a play)
1 : to become separated into component parts; also : to become reduced by dissolving or analysis
2 : to form a resolution : DETERMINE
3 : CONSULT, DELIBERATE
4 : to progress from dissonance to consonance
Precision in language is important in law. Even moreso at the highest levels of the judiciary.
If this isn’t a glaring example of “judicial activism” on Judge Pickering’s account then I don’t know what is.