Saturday, January 01, 2005

Althouse on Judicial Independence

by Tom Bozzo

Ann Althouse reviews today's NYT piece on Chief Justice Rehnquist's year-end report and opines that perceived threats to judicial independence are overblown.

Maybe, though as an indication of how one's political outlook shades one's reaction to the news, seeing Rehnquist worried about judicial independence — under Republican congressional oversight and after having installed the sitting and recently re-elected Republican president — makes me consider excavating a safe room under the garage slab.

Among other things, Prof. Althouse tries to put a reasonable spin on the "Reaffirmation of American Independence Resolution" by noting language in its text focusing on "inappropriate ... reliance" (emphasis added) on foreign legal precedents. This would appear to be something of a fig leaf, as the sponsor's web page on the resolution states that the intent is to

"[affirm] the Sense of Congress that judicial decisions should not be based on any foreign laws, court decisions, or pronouncements of foreign governments unless they are expressly approved by Congress" (emphasis added again).

A moderate interpretation of the resolution, if there is one, would arguably be better approached through the resolution's exception for "foreign judgments, laws, or pronouncements... [that] otherwise inform an understanding of the original meaning of the laws of the United States."

I can guess why Reps. Feeney and Goodlatte qualify "meaning" with "original," though as a practical matter I could see "original meaning" being sufficiently vague as to exclude less foreign law (or court decisions, etc.) from U.S. courts' consideration than the authors of the resolution seem to intend — at least until legislation routinely is preceded by nationalistic Congressional "findings."
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