Gonzales: Supremes Wrong to Cite Foreign Laws

Attorney General Alberto Gonzales on Tuesday joined critics of the use of foreign law in Supreme Court opinions, calling it anti-democratic and unworkable.

"Foreign judges and legislators are not accountable to the American people. If our courts rely on a foreign judge's opinion or a foreign legislature's enactment, then that foreign judge or legislature binds us on key constitutional issues," Gonzales said in a speech at George Mason University Law School in Arlington, Va.

Gonzales included a passage about citations of foreign opinion in court rulings as part of a lengthy defense of Supreme Court nominee Harriet Miers and judicial restraint.

He called Miers, like Chief Justice John Roberts before her, "an extraordinary candidate" and cited Roberts' views on the matter.

"If an American judge wants to find a law consistent with his or her personal opinion, it can be found. Chief Justice Roberts in his confirmation hearing compared this to looking over the crowd and picking out one's friends. As a practical matter, it may be impossible for even the most conscientious judge to avoid being arbitrarily selective in the use of foreign law," Gonzales said.

There has been a growing divide on the high court over references to foreign laws to support decisions interpreting the Constitution. Earlier this year, justices ruled 5-4 to outlaw the death penalty for juvenile killers, citing in part foreign sentiment against it.

Rep. Tom DeLay, R-Texas, singled out Justice Anthony Kennedy's work as "incredibly outrageous" and "activist" after Kennedy wrote the majority opinion in the death penalty case.

While Roberts criticized the practice during his confirmation hearings, he did not go as far as some conservatives who say judges who look to foreign laws are violating their oaths.

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sandra Day O'Connor have defended looking at foreign sources when a point of law is unclear.

Ginsburg said using foreign sources does not mean giving them superior status in deciding cases.

"I will take enlightenment wherever I can get it," she said last month. "I don't want to stop at a national boundary."