President Bush's nominee for the Supreme Court, federal Judge Samuel Alito, says he sees little value in citing foreign law in deciding cases on the U.S. high court. The issue of whether to cite foreign legal precedent sparked a debate last year between two of the nine Supreme Court justices and remains a hot topic among legal scholars.
In recent years, some Supreme Court justices have cited foreign legal precedents in written opinions on issues like the death penalty and the rights of homosexuals. It is a trend that worries some conservative Republicans in Congress like Arizona Senator John Kyl.
He said, "Reliance on foreign law is contrary to our constitutional traditions. It undermines democratic self-government and is utterly impractical given the diversity of legal viewpoints worldwide."
Senator Kyl is a member of the Senate Judiciary Committee, which is holding confirmation hearings for Judge Samuel Alito, President Bush's choice to replace retiring Supreme Court Justice Sandra Day O'Connor.
In response to a question from Senator Kyl, Judge Alito said he did not think foreign law would be helpful in interpreting the U.S. Constitution.
Judge Alito said, "The structure of our government is unique to our country and so I do not think that looking to decisions of supreme courts in other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government."
Last year, the issue of foreign legal precedents was the subject of a rare public debate between two Supreme Court justices.
Justice Antonin Scalia, a conservative appointed by President Ronald Reagan, argued that foreign law has no standing in cases involving American law and standards.
But Justice Stephen Breyer, a liberal appointed by President Bill Clinton, disagreed. Justice Breyer said he is at least interested in reading about how other countries deal with issues like the death penalty and the protection of human rights.
He said, " these countries, there are institutions, courts, that are trying to make their way in societies that did not used to be democratic. And they are trying to protect human rights, they are trying to protect democracy, they have a document called a constitution and they want to be independent judges. And for years, people all over the world have cited the [U.S.] Supreme Court [so] why do we not cite them occasionally. They will then go to some of their legislators and say, see, the Supreme Court of the United States cites us and that might give them a leg up [n advantage]even if we just say it is an interesting example."
Breyer appears to be in the minority on the high court. During his confirmation hearings last year, the new chief justice, John Roberts, agreed with conservatives that foreign legal precedents generally have little relevance in the U.S. legal system.