Justice Ginsburg Criticizes Fringe Elements, Ultra-Conservative Influence & Outright Hyprocrisy

Ginsburg Faults GOP Critics, Cites a Threat From 'Fringe'

While most ultra-conservatives would argue that Ginsburg is a "leftist" or "liberal," using those terms as a curse word or term of derision, Ginsburg is a moderate and actually puts some thought into her decision-making. While I do not always agree with her decisions, I can at least understand her arguments and the legal basis for her decisions and dissents. She is ideologically a Democrat and was supposed to be a liberal addition to the Court... but she is essentially a middle-of-the-road moderate that seeks a reasonable understanding and implementation of the law (including its underlying principles), or at least a reasoned compromise among judicial scholars.

Supreme Court Justice Ruth Bader Ginsburg assailed the court's congressional critics in a recent speech overseas, saying their efforts "fuel" an "irrational fringe" that threatened her life and that of a colleague, former justice Sandra Day O'Connor.

Addressing an audience at the Constitutional Court of South Africa on Feb. 7, the 73-year-old justice, known as one of the court's more liberal members, criticized various Republican-proposed House and Senate measures that either decry or would bar the citation of foreign law in the Supreme Court's constitutional rulings. Conservatives often see the citing of foreign laws in court rulings as an affront to American sovereignty, adding to a list of grievances they have against judges that include rulings supporting abortion rights or gay rights.

Despite what other justices are saying, there are international provisions of law inherently tied to our Constitution. Every treaty signed and ratified by the US is an essential part of the US Constitution as per the treaties clause. Further, our entire system of jurisprudence is based on English traditions and English common law. Parliamentary procedure, an essentially British conception, is embedded in our administrative laws, public meetings, law making (state and federal) and our corporate operations. Due process, court procedures, rules of evidence and the order in which briefs, motions and arguments are made in our courts have a root history in foriegn law. Additionally, given our global economy, global interactions, foreign relations and involvement in establishing (enforcing) international law, we can surely see that there is some room for including international law or precedents in our own jurisprudence... especially when we are compelled by our own founding reasoning (inherently described in the Declaration of Indpendence) to seek out principles of justice by virture of reasoning.

Sound reason would call for comparing American law, precedent and morality to that of the international community and universal principles. It is on this basis that slavery is all but irradicated in the international community. For example, slavery, of course, was abandoned by foreign law before it was abandoned by US law. Another example is the Geneva Conventions where the treatment of prisoners of war is delineated and agreed upon by a majority of sovereign states of the world.

I would certainly limit the argument for including international law and precedent as the sole basis for deciding a US case, but certainly inclusion of international standards to assess the reasonableness, application of universal principles, and comparison of how matters are handled is a valid approach. It is essentially the same as using laws from the different states--each, theoretically, being a sovereign government on its own merits--to determine reasonableness, universal principles and comparison of handling. Many court cases at the state and federal level will cite laws, cases and precedents from other states to illustrate a point of reason, principle, justice or law. How, then, is the citation of international law really any different?

Though the proposals do not seem headed for passage, Ginsburg said, "it is disquieting that they have attracted sizeable support. And one not-so-small concern -- they fuel the irrational fringe."

The tyranny of public opinion and the majority--and quite possibly the ignorance that has resulted from our failure to educate our children on constitutional first principles--is showing.

She then quoted from what she said was a "personal example" of this: a Feb. 28, 2005, posting in an Internet chat room that called on unnamed "commandoes" to ensure that she and O'Connor "will not live another week."

Extremism is always extreme. The difference between the KKK, the Islamic suicide bomber, the murderer of doctors performing abortions, and those that advocate assasination is only in the ideology that they adhere to... then methods and reasoning are essentially dictatorial and authoritarian, and usually advocating some degree of coercion, force or violence.

Ginsburg's counterattack on GOP critics, posted on the court's Web site in early March but little noticed until now, comes at a time when tensions are already high between the federal judiciary and the Republican-led Congress. The rift stems in part from conservatives' unhappiness over the Supreme Court's use of foreign laws in decisions striking down the juvenile death penalty and laws against sodomy.

I do not understand how state or federal authority applies to consensual sexual liaisons between persons over the age of consent as established in each jurisdiction. Does the government, at any level, have any compelling interest or cause to regulate sexuality between two consenting persons over the established age of reasoned consent?

In Massachusetts oral sex between consenting adults is still on the books as "unnatural acts." Such a classification necessarily causes one to wonder how they arrived at the criteria for determining these acts as unnatural. Is it because the acts are oral in nature? Wouldn't that make kissing a crime and unnatural? Is it because such activities are known to cause quite a bit of sexual pleasure? Wouldn't that make coitus an unnatural act as well?

One can argue that beastiality is an obvious unnatural act, but putting oral sexual acts in the category as "unnatural" defies what we know about human development. From the time we develop tactile sense as a fetus, we engage in oral acts that give us pleasure and comfort. Sucking a thumb is certainly oral, pleasurable for a fetus or an infant, and is natural. Is kissing a sexual partner's stomach an unnatural act? If not, why then does the explicit involvement of the reproductive anatomy become unnatural?

Come to think of it, no one ever taught me how to kiss. My mother never sat me down and told me how to pucker my lips for a platonic kiss... nor did she give me lessons on how to part my lips to allow for a "French kiss". My mother never told me anything about receiving or giving a "hickey" either. The only thing my father ever told me about sex was "Don't get her knocked up."

So, if every sexually active human being naturally engages in kissing, creating hickeys, French kissing, and exploring a sexual partner's body, etc., how are these things determined to be unnatural.

Of course, sodomy is defined in most states as inherently involving anal penetration. While that is disgusting in my own personal view, I look to history and cultural tradition to determine if it is unnatural. The practice of sodomy has been present in every culture, involving every type of human tradition ever to exist throughout history. While there have been laws against such acts, there have also been times where the practice has been institutionalized. Ancient Rome, Egypt, Japan, China and elsewhere have all had "sodomites" among there populations. Sodomy has not been restricted to homosexual relations, either. The Karma Sutra and other ancient texts on sexual behaviors all have references to anal intercourse.

Certainly we can make the case that any sexual act performed in the absence of mutual consent is a criminal act. We can even make the case that overt sexual acts in inherently public places is an affront to public decency. No one can reasonably argue that sex with a child is legally or morally allowable, even though the age of consent is still a debatable issue given our historical precedents.

But even polygamy is a question of morlaity rather than legality. Do I really care if my neighbor has sex with women, men, multiple partners or in an orgy? No. Do I care if someone visits a "sex club" and engages in multiple sexual contacts in a single night? Only from a public helath perspective. Do I have a legitimate moral or legal concern over whether a man contracts with more than one woman to live in a state of intimacy (or vice versa)? Only if they, and their children, end up on the welfare rolls and I have to pay for there lack of judicious practice of safer sex and contraception.

As for the death penalty, there is enough inconsistency in the way cases are handled, evidence is verified and the numerous wrongful prosecutions that result in a death sentence to warrant the abdication of this punitive measure. There is ample and clear evidence that the death penalty is not a deterrent. In my reading of Scripture, the death penalty is an inherently un-Christian approach to crime, the criminal and the law. The death penalty is, however, an expedient way not to bear the financial cost of imposing a sentence on a criminal or taking responsibility for preventing the circumstances that are the base for most capital crimes... But now someone is going to accuse me of being a "leftist" and possibly a "god-hating pseudo-Christian," both of which have been tossed in my direction in the past... But I make the case that there is no constitutional right or delineation that specifically endorses the death penalty. If Scalia and other jurists are so hell-bent on being strict construstionists, let them demonstrate that the Constitution specifically authorizes the death penalty. Better yet, let one of the ultra-conservative members of the Christian Right demonstrate how the death penalty is a Christian way of dealing with the evil of murder, rape, or other capital crime... and then ask them to reconcile their views on the death penalty and abortion in a rational or scriptural manner... the emphasis being on the word RATIONAL.

Some conservatives are still fuming over the federal courts' refusal to intervene in the Terri Schiavo case last year.

The Terri Schiavo case is a perfect example of ultra-conservative judicial and legislative activism that exceeded long-standing precedents of law, canon law, religious tradition and Scripture. In a Christian world view, a husband and wife are "one body" and are joined by God in a sacred relationship where parents of either partner has no business interfering in the relationship... not even in matters of health or terminal care.

Rep. Tom Feeney (R-Fla.), author of one of the resolutions to which Ginsburg alluded, said yesterday that "no one in Congress wants to compromise the safety of any public official."

No, they want to compromise inherent rights, relationships, public policy, sexual intimacy, health care decision-making and the fundamental first principle that every individual has the right to decide how to live without any interference by government without clear and compelling interest to do so.

But Feeney noted that some of Ginsburg's own colleagues on the court disagree with her. He said "there are some justices that get awful thin skins when they get their black robes on, and when they talk about judicial independence, they sometimes mean no one should be able to criticize them."

Surprise, surprise! I count Scalia, Kennedy, Thomas and Stevens among those that do not see external criticism as legitimate.

Reflecting the tension between the two branches, O'Connor used a speech at Georgetown University Law Center last week to repeat her own past warnings about the threat to judicial independence posed by Republican criticisms of the court's rulings. She referred to comments by former House majority leader Tom DeLay (Tex.) and Sen. John Cornyn (Tex.) but did not name either man.

She noted that death threats against judges are rising, according to a National Public Radio report on the speech, but she did not refer to the Internet threat mentioned by Ginsburg. No transcript or recording of O'Connor's speech is publicly available.

The domination of our political processes--including the appointment of judges to state and federal benches--is the real threat. The proposals to interfere with judicial independence is nothing less than a power grab by the legislative branch... similar to that which we have witnessed by the executive branch under George W. Bush.

But this year's speech showed how committed Ginsburg has become to the use of foreign legal materials since her appointment to the Supreme Court by President Bill Clinton in 1993.

While emphasizing that the rulings and reasoning of non-U.S. courts are not "controlling authorities," she told the South African audience that foreign law can be a useful source of common standards of fairness. The Supreme Court's citation of them shows "comity and a spirit of humility" toward other countries, she said.

The reasoning is in keeping with my points made above...

On the Supreme Court, Ginsburg's view is backed, to one degree or another, by Justices John Paul Stevens, Anthony M. Kennedy, Stephen G. Breyer and David H. Souter.

Seeing Stevens and Keenedy on this list is a bit surprising...

It is strongly opposed by Justices Antonin Scalia and Clarence Thomas. The court's two newest members, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not yet written opinions in cases involving foreign law, but both voiced objections to its use at their confirmation hearings.

Thomas is not, and never has been, an original thinker. He has historically let his "little justice" or Justices Scalia (or Chief Justice Rhenquist when he was alive) do his thinking. Scalia has demonstrated his disdain for the Constitution, precedent and his own falre for his version of judicial activism. Alito is an ultra-conservative ideologue that lines up with Scalia as a matter of remote control... and the "jury" is still out in regard to our newest Chief Justice.