February 6, 2009 | Commentary on Legal Issues
Today the Senate Judiciary Committee takes up the nomination of David Ogden to the position of Deputy Attorney General, the second-highest position in the Justice Department. His credentials aside, there's reason to think he lacks the proper understanding of our Constitution necessary to fill this important post.
Specifically, questions have been raised about his work on a recent Supreme Court decision that invoked foreign law to impose a radical change on American death penalty policy. Given the danger that this growing tendency to consult foreign law poses to our ability to self-govern, senators should probe Ogden about his involvement with this case.
The case at issue is Roper v. Simmons, which involved the imposition of the death penalty of a 17-year old who planned and carried out the heinous murder of a Missouri woman. The Supreme Court overturned the death sentence, concluding that imposing the death penalty on anyone under the age of 18 violates the Eighth Amendment's prohibition of cruel and unusual punishment.
Ogden submitted a brief for the defendant, which urged the Court to take into account, among other factors, the "worldwide consensus" against executing juvenile offenders. Sure enough, the majority cited this international consensus as one of three major factors in the decision. Ogden's pride in the victory was obvious -- he soon began displaying a plaque commemorating the case in his office.
The arguments Ogden put forth demonstrate the lunacy of interpreting our Constitution according to foreign laws. The brief states: "Almost without exception, the other nations of the world have rejected capital punishment of those under 18, confirming that the juvenile death penalty is contrary to Eighth Amendment standard of decency." By the same token, almost without exception, the world's nations reject the Exclusionary Rule for evidence obtained in unlawful searches. Would Ogden really argue that this international consensus has any bearing on what the Fourth Amendment means?
Ogden's brief also cited the U.N. Convention on the Rights of the Child, which prohibits the death penalty (or life in prison without parole, for that matter) for anyone under 18 years of age. The brief aptly notes that the United States hasn't ratified this treaty; one would think that this concession would be the end of the story. Instead, Ogden downplays the obvious fact that the prohibition doesn't apply to the U.S, while shamelessly offering the treaty and other countries' adherence to it as evidence to support his "worldwide consensus" theory.
It's absurd to suggest that judges should look to treaties that the United States has rejected -- in part because of potential conflicts with domestic and constitutional law -- as they try to determine what our Constitution means.
Yet courts have increasingly cited international law over the past several decades, in deciding issues ranging from the death penalty to property rights. Of course, the more weight the Court gives international law, the more it diminishes the right and authority of the American people to decide such issues through self-government.
Thus, by infusing the Eighth Amendment with foreign notions of justice, citizens of Missouri are no longer able to democratically decide the political question at issue in Roper -- whether a punishment applicable to 18-year-olds should apply to 17-year-olds who commit the most heinous crimes in our society. Some may applaud the outcome on policy grounds, but even those who oppose the death penalty should be disturbed by courts selectively using foreign sentiments to overturn democratically enacted laws.
The question remains whether the international law arguments in Ogden's brief truly reflect his personal views. As an attorney, after all, he had a duty to vigorously represent his clients, and this sometimes requires advancing arguments with which one personally disagrees.
That's where senatorial advice and consent come in. Lawmakers should ask pointed questions, not only about Ogden's role in the Roper case and whether he agrees with the arguments made, but whether he believes that judges should consult international law to interpret the Constitution and other domestic law. More particularly, should the Justice Department be goading them to do so? Ogden's reliance on international law in his brief presents a fertile line of inquiry that senators shouldn't neglect.
The Department of Justice serves as constitutional advisor to the president and the executive branch, and, as the world's largest "law firm," is responsible for litigating on behalf of the United States. Before confirming Ogden to the number-two spot at Justice, it's essential for senators to ensure that the department will uphold our Constitution, that bulwark of liberty, rather than relegating it to the changing tides of international opinion.
Deborah O'Malley is a Research Associate in the Center for Legal and Judicial Studies at The Heritage Foundation
First appeared in Human Events