February 6, 2009
By Deborah O'Malley
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
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
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
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
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
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.
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