RUSH: Good old Justice Stephen Breyer is continuing to speak. We have some sound bites from him. He was speaking Monday in Washington at a symposium on public service and international law. Now, Breyer is a known commodity. He was a liberal when he was nominated; he was a liberal when he was confirmed, and he’s a liberal on the court, and the liberals didn’t have to be stealth about him, and Ruth Bader Ginsburg? She was a liberal when she’s nominated, and she is a liberal on the court, and they didn’t have to be stealth about her and sneak her in, and both of these judges were approved with pretty good margins. Here is Justice Breyer once again talking about foreign law, and this goes right to the point that I was trying to make to Trudy and I have for several weeks, months, if you will, on this program about what’s wrong with certain kind of judges and why we need others. Listen to Breyer, the first of a few bites here.
BREYER: Nations all over the world have followed our lead or the lead of other places, adopted constitutions that basically assure democracy, that are protective of human rights, and that try to do so in part by relying upon independent judiciaries. Well, if that is the world, we can learning something perhaps by looking at how they, in a few cases anyway, that raise comparable problems, interpret comparable documents, comparable provisions, protective let’s say of human liberty. I’m not saying we follow them. We might learn what not to do. But let’s read them. After all, they’re written by judges.
RUSH: So what! That’s the point. So they’re written by judges and that makes them infallible? Look, you can read all you want, Justice Breyer. You can read and inform yourself all you want about what other nations are doing, but unless it’s in our Constitution it is irrelevant when you are deciding constitutional law that comes before you in the form of cases at the Supreme Court. It’s just that simple, but if you’re going to have a personal view — like Justice Breyer obviously does, a personal view — that what they’re doing around the world is something that we can learn from, that may be, independently speaking, but if it’s not in our Constitution, it ought not be in anybody’s reasoning or anybody’s decision-making when it comes to deciding law in cases that come before the Supreme Court. What Justice Breyer is essentially saying here is that there are certain things going on in this country that he disagrees with, and he may find a better way of handling them in foreign countries, and since he’s a judge, and since other judges where writing these things in other countries, why, it would be silly not to incorporate them! That is 180 degrees out of phase, and it is precisely why I have this profound concern of the direction the court’s heading, and there are people, ladies and gentlemen, who have written and who are on benches, on courts deciding cases now who have undergone the scrutiny and the attempts to have their minds changed (a-hem) by public pressure, political pressure, and they have stood fast, they have remained solid in their beliefs on the Constitution.
So those people can be identified, and there’s no guesswork about it — and I guarantee you, if you find this kind of judge, you’re going to get the right thing on Roe vs. Wade, but you’re also going to get the right thing on all kinds of other cases that come before it, too. This business… Do you know that foreign law was used to overturn 19 state laws on sodomy? It was foreign law. Justice Kennedy cited it. Well, what good is any law in any state if nine lawyers at the Supreme Court can find what they’re doing elsewhere around the world and say, “You states are so far behind the curve. You don’t know what you’re doing. They’re way ahead of us, say, in Belgium. So we’re going to going to incorporate Belgium into our decision on this case.” Sorry. If it’s not in the Constitution, you can’t do that, and this started with Roe vs. Wade — and this is the big argument that people have. Once you start finding things that aren’t there, and pretending that they are, or inserting them yourself as a judge, the Constitution becomes meaningless, folks.
All this rigmarole and hoity-toity talk about human rights and civil rights and democracy? All of it would be meaningless. The only way it would have meaning is if a majority of judges agreed on some civil right or human right or what have you, or if they want to create a new one that’s not in the Constitution. That’s not how these things happen. The laws are not written by judges. They’re not supposed to be. The laws are written by elected representatives in Congress and the state legislatures. If they want to go scrutinize foreign law, if they want to make a bill out of it and they can convince enough members of Congress as elected officials that we send there to do so, and then get the president to sign it, well, then fine. But this is not how this is supposed to happen, and Breyer knows, I think, he’s under the gun. He won’t stop talking this. He’s got a book out about it, now. This is an argument going on within the court itself. You’ve got Scalia and Thomas, and you had Rehnquist, who are dead-set against all of this. We don’t know where Harriet Miers comes down on this. We might find out in the hearings, but we don’t know now. But there are plenty of other people out there whose opinion on this we do know. Here’s another portion of Breyer’s remarks.
BREYER: Don’t remain behind a veil of ignorance. Read it when it’s relevant, and there are cases, I know, I think, what is upsetting. The cases that have come up where this has been done recently involve a statute involving homosexual conduct and the death penalty for 17-year-olds. We said that the statute was unconstitutional, and we held 5-4 in both cases. In the death penalty case, we said the Constitution could not, the cruel and unusual punishment clause said you could not execute a 17-year-old, when he was 17 when he committed the crime. Those are very controversial topics, very controversial. They referred very briefly to foreign law but it’s very hard for someone to say that that was the basis of the opinion.
RUSH: It isn’t hard at all. All you’ve got to do is refer to it and find that one country disagrees with executing 17-year-olds, make it the law here, and it has formed a basis, and that is exactly what happened. You sense the defensiveness here. So he just got through saying that they overturned two cases, the sodomy-homosexual conduct, and the death penalty. Well, those are state laws. The states had passed those laws. The US Supreme Court did refer to foreign law and then overturned them both, just because of a 5-4 majority on the court. Simply that. There’s nothing in the Constitution about it. They just relied on foreign law and their own interpretation. (interruption) What, Mr. Snerdley? What are you having a cow about in there? What? (interruption) Well, I know. When the Founders made these laws 17-year-olds [at the time of their crime] were executed at the time. See, brings up another point. The Constitution is a miraculous document. It is written to apply and to be adaptable to modern times. You know how? You can amend it, but you don’t amend it by having the nine lawyers on the Supreme Court institute their own personal policy preferences for it. There’s an amendment process, and it’s very hard to amend the Constitution. They did that on purpose, too. But there’s a constitutional way to change the Constitution, but it isn’t this way. This is not the way it happens. Here’s one more from Justice Breyer.
BREYER: My wife is a psychologist, therefore I believe in the phenomenon of displacement. Displacement means when you’re angry at A, blame B. Joanna says that I says — I do that and she is the victim of this, but nonetheless! Displacement! Perhaps that’s underlying this whole problem, because if I look back into the history of the Supreme Court, since 1808, indeed, there were loads of citations of foreign cases.
RUSH: Okay (sigh). So now we’re going to use psychology to explain our decisions and we’re going to use psychology to criticize the critics of these decisions. All right, I have to take a break here, but when we come back, I’ve got one more Breyer maybe, but definitely a 44-second little gem from Judge Roberts during his confirmation hearings.
RUSH: All right, here is Breyer’s conclusion now to this symposium on Monday on public service and international law.
BREYER: Anyway, as I see it, I’ve tried to explain to you why I think that’s the world that we live in, why I think it’s terribly important in so many areas.
BREYER: Not just the high visibility ones.
RUSH: Of course.
BREYER: To make international, foreign law what happens in other places part of the life that you in fact lead as a professional.
BREYER: That inevitably draws our, uh, uh, court into it, too.
RUSH: It’s not inevitable.
BREYER: I think that the ultimate objective is what Father Drinan said.
RUSH: Oh, my!
BREYER: “The objective is the law that works better for average Americans.” Will it happen? I hope so! I think so. And, anyway, that’s my side of the argument. There may be others, too.
RUSH: There are.
BREYER: Thank you very much for listening.
RUSH: All right, now, Father Drinan, a well-known, documented lib. Father Drinan: “The ultimate objective is a law that works better for average Americans.” Folks, that is legal mumbo jumbo. It is gibberish. It is liberal, social, feel-goodism. It is absolutely uncalled for on the United States Supreme Court. The ultimate objective is not ”a law that works better for average Americans.” That’s not at all what the law is, and yet here’s a Supreme Court justice citing international law, encouraging everybody to go look at it, find a law that’s better for average Americans. A purely political statement, disguised as erudite thinking. So to refute this, who better to turn to than the new chief justice himself, Judge Roberts? Let’s go back to September 15th of 2005. Senator Dick Durbin — thinking he was going to nail Judge Roberts here — basically rephrasing what you just heard Breyer say: “The ultimate objective is a law that works better for average Americans.” Durbin’s question: “I said at the outset that I thought one of the real measures as to whether you or not you should be on the Supreme Court goes back to a point Senator Simon had made. Would you restrict freedom in America or would you expand it. When you were defending gays and lesbians who were being restricted in their rights by the Colorado amendment were you trying, from my point of view, to expand freedom in America? That, to me, is a positive thing. That’s my personal philosophy. That’s like my point of view. But when you say if the state would have walked in the door first to restrict freedoms, I would have taken them as a client, too, I wonder, where are you? Beyond loyalty to the process of law how do you view this law when it comes to expanding our personal freedoms?” Same thing as Drinan saying: “We need law that works better for average Americans.” Durbin said, “Is it important enough for you to say, ‘In some instances I will not use my skills as a lawyer because I don’t believe that’s a cause that’s consistent with my values and beliefs?’ That’s what I’ve been asking.” Now, this answer is 44 seconds. He just… In 44 seconds, John Roberts destroys the whole notion that the purpose of law is social activism, making law fair and better for average Americans and all that. Here is his answer.
ROBERTS: I had someone ask me in this process — I don’t remember who it was, but somebody asked me — you know, “Are you going to be on the side of the little guy,” and you obviously want to give an immediate answer, but as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win because my obligation is to the Constitution. That’s the oath. The oath that a judge takes is not that I’ll look out for particular interests; I’ll be on the side of particular interests. The oath is to uphold the Constitution and laws of the United States, and that’s what I would do.
RUSH: And he has just, in the process of nuking Durbin, he’s just nuked Justice Breyer as well. If the little guy should win, he’s going to win. If the big guy should win, then he’s going to win. That’s my obligation. That’s the oath. The oath that a judge takes is not that I’ll look out for particular interests, particularly my own. “I’ll be on the side of particular interests.” No, the oath is to uphold the Constitution and laws. Let’s go back to Breyer. Here’s the topper. Breyer is explaining how he looked at French law in a case concerning the foreign sovereign immunities act. Now, you can try to follow this, and note that our Constitution is not mentioned.
BREYER: Mrs. Altman, who had an uncle who lived in Vienna when the Nazis were there, he left. His paintings stayed, and the six Klimt paintings that he owned ended up in a museum where they are now, and she brought a lawsuit. Can she do so under the Foreign Sovereign Immunities Act? The key case that explained the concept to me of what this act is about, I found it — don’t tell anyone — I found it in an intermediate appeals court in Paris which had the famous case of Christian Dior against King Farouk — the ex-King Farouk, very important, because the question was: Can Christian Dior sue ex-King Farouk for the bill for his wife’s clothes, or is it in fact that he enjoys sovereignty immunity? “Well,” said the court, “You did, but you’re no longer king, and therefore pay up.” All right. That was enlightening to me, that case, and indeed it helped Mrs. Altman.
RUSH: And I’m not a legal scholar here, but if the case being decided is about the Foreign Sovereign Immunities Act, then of course you’d decide it on that basis! This case involved things that happened in Vienna and in Paris and so forth. That’s not what we’re talking about in importing foreign law. I don’t know, folks. I use all of this for one reason, and that’s to try to underscore for all of you who think that I am opposed Harriet Miers simply because I’m joining a crowd or because I don’t like what the president did. These things all matter to me, and it’s about far more than one case, Roe vs. Wade. You talking about big guys winning and little guys winning? Look at Kelo. Now, according to Father Drinan, the Kelo decision should have been decided in favor of the little guy, and that would not have been how it is decided. Kelo was decided in favor of the big guy, and Kelo was decided, by the way, in a way that the Constitution doesn’t say. They’re having now to go to Congress and rewrite the Fifth Amendment, the eminent domain clause, because it was misinterpreted by the Supreme Court. You realize few liberals disagreed with Kelo? You know why fewer liberals disagreed? A lot of people said, “Oh, this is a decision that favors big developers. This is a decision of big-money guys, and this is what’s wrong with the country.” No, it’s not. Kelo is a decision that favors GOVERNMENT! That’s why the liberals liked it. It gave government all kinds of power. Government can kick the little guy out of his and her homes and sell those home to a big developer who’s going to pay a higher tax base to the government. Well, that’s not what the takings clause was about. It’s not what it is about. It’s just been bastardized, and it gets bastardized because you have justices on the court who will sit there and impose their personal policy preferences rather than try to get the original intent of the Constitution. So I hope all of this has helped.