Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, I want to join you in welcoming our witnesses today. As we await the President's nomination of a new justice of the Supreme Court, it is important that this Committee consider the role of the judiciary in our system of Government. I hope that the Senate will, in considering the lifetime appointment of a Supreme Court justice, exercise its constitutional duty of advice and consent and not act merely as a rubber stamp. Our main concern, Mr. Chairman, is that attacks on the judiciary in this Committee have crossed the dangerous and inappropriate line between acceptable commentary and response, and potentially destructive attempts to destroy the separation of powers, which has been one of the foundations of our freedoms. Congress may certainly change legislation if we are not satisfied with the Court's interpretation of the law. Congress may also choose not to exercise powers the Court has said we have under the Constitution. In rare and extraordinary circumstances, we can even initiate an amendment to the Constitution. We may not always agree on policy, but these are all powers given to Congress under the Constitution. This Committee and this Congress, however, have begun to stray from the appropriate to the dangerous. While I realize that some issues before the Court arouse strong feelings, Congress has a duty to set a reasoned example to the Nation. Lambasting the courts as unelected judges-if that were not the design of the Government— undercuts the protection of our liberties. This Subcommittee, despite its name, has never taken the time to look into the Court's long and worrisome record of using the 11th amendment contrary to its intent, limiting the reach of the commerce clause in undercutting Congress' powers to enforce the 14th amendment in ways that have undercut our civil rights laws. The outrage has sometimes proved selective. Threats of impeachment, attempts to eliminate Federal court jurisdiction to rule on certain select issues, even an amendment to the budget a few weeks ago, to the appropriations bill to say no funds appropriated herein to the Justice Department may be used to enforce a specifically named decision of a Federal district court, ex parte communications with Federal judges concerning their actions in a particular proceeding, threats or subpoenas in cases where Members of this Committee disagree with a certain result, and the even inflammatory comments approving of violence against judges do a disservice to the foundations of our constitutional system of Government. Today we examine the use of non-U.S. sources in judicial decisions. I continue to believe that this is a big fuss over nothing. No case has ever turned on a foreign source. No foreign source has ever been treated as binding, and this phenomenon of citing foreign sources is certainly nothing new. What is really dangerous is the threats that accompany our deliberations, and the suggestion that Congress may exercise its power to tell the courts what is or is not appropriate, what is or is not an appropriate way to consider a complex issue. Our courts should not decide important issues with blinders anymore than should Congress. I would also remind my colleagues who voted for NAFTA, who are contemplating voting for DR-CAFTA, that our sovereignty is far more threatened by the remedies available to foreign corporations and governments because of NAFTA, and prospectively because of CAFTA, than because of anything that has appeared in these court decisions, whether it is international bodies telling us which laws we cannot-we can and cannot have or enforce, or foreign corporations seeking remedies against our businesses. And if our Members are really concerned about threats to our sovereignty, they will look at these foreign agreements which cede sovereignty to World Trade Organization tribunals as to which of our own laws we can enforce and which we cannot. I welcome our witnesses, and I look forward to hearing their testimony. I would also ask unanimous consent that Members have 5 days to revise and expand their remarks and include additional materials in the record. I thank you, Mr. Chairman, and I yield back. Mr. CHABOT. Thank you. Without objection, so ordered. The gentleman from Florida, Mr. Feeney, who is one of the two principal sponsors of this legislation. If he would like to make a brief opening statement, I am sure the Committee would welcome that. Mr. FEENEY. I thank the Chairman. But before I do that, I would like unanimous consent to place into the record a statement by our good colleague, Congressman Bob Goodlatte, who is cosponsor of the Feeney-Goodlatte resolution. Mr. CHABOT. Without objection so ordered. Mr. FEENEY. Thank you, Mr. Chairman, again for holding a hearing on a very important issue. Six Supreme Court U.S. justices have approvingly been described by Professor-actually Yale Law Dean Harold Koh-as transnationalists. They have increasingly expressed essentially disappointment in our own U.S. Constitution as originally written by the Drafters and Framers of our Constitution by importing foreign laws, fads, constitutions, and political polls to somehow create or reinterpret against their own 20- or 10-year-old precedence on the bench from the U.S. Supreme Court to reinterpret the meaning of our very Constitution. With disturbing frequency they have looked at and looked all over 191 nations recognized by the United States State Department for some favorable or agreeable laws that they could use to justify their result-oriented approach. So I want to thank Mr. Goodlatte and many others on this Committee. We hope to have a great civics debate as part of this discussion as we tee it up in the United States Senate in terms of what the appropriate role of the United States justice ought to be. If we are going to have a Republican government small armmeaning that people get to elect policymakers-I think every American, from third grade to the end of their retirement years, ought to understand what the appropriate role of the Justice is. That is, in my view, to interpret the original meaning of the Constitution and to interpret the laws as intended by the law-givers in the States and the Federal-at the Federal level. In the Declaration of Independence, Jefferson and the Founders explained the rationale for war against and separation from Britain. Among other things, they alleged that the King had combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws. Yet it appears that is exactly what is happening to the extent that we have Supreme Court Justices relying on contemporary fads, following polls, laws, et cetera, in order to somehow reinterpret the United States Constitution. The most recent alarming decision was in Roper v. Simmons. Again, the United States Supreme Court undermined its own precedent. This is not something that they were looking as comparative analysis or thought that it would be interesting to make note. You know, I would say to my friend from New York that indeed they did rely at least in part on foreign laws to change their own precedent with respect to whether or not people under the age of 18 can ever be subject to the death penalty in America. Never mind that a majority of the States that have the death penalty, elected legislatures by the people, allow a 17-year-old murderer under certain circumstances to be put to death. In Florida, over 70 percent of the people have amended our Constitution to allow for the egregious circumstances for people under the age of 18. So with one fell swoop, based in part on foreign law, we have the United States Supreme Court or a majority anyway-throwing out constitutional referendum in Florida and throwing out the laws of a significant portion of our States. They did the same thing in Adkins, overturning their own precedent-democratically elected policymakers' decisions. They did the same thing in Lawrence v. Texas on the issue of whether or not the State of Texas had the right to regulate sodomy. By the way I won't necessarily quarrel with the outcome of any of their decisions. It's exactly the fact that they relied on international laws, fads, institutions, constitutions, et cetera. It is important to read what the Feeney-Goodlatte resolution does. I would say to Professor Cleveland, we certainly welcome your comments. I am glad that you are here today because this is an interesting case. I was surprised, when I found and read your testimony, that I agree with a great deal of what you have to say. Indeed, it's often appropriate to cite what is going on in other countries. In interpreting our Constitution, for example, it would be hard to understand the administration of powers if you hadn't referred to Montague, who Madison says is essentially the founder of the concept of separation of powers. Our Founders were terribly familiar with everybody from Plato, Cicero, Lock, Mill, Blackstone, for a definition of the words "law of nations." one of the problems we have here today is people are confusing the term "law of nations," which is in article I of the Constitution, with international law. These are very different things. I would refer you to Mr. Blackstone's description of what the law of nations are. It is actually something that doesn't change over time; God-given rights like Jefferson referred to in our Declaration. International law changes a great deal. It does not prohibit, by the way, anytime there is legislative history involved in citing foreign authorities. If we decide to adopt the German pension system, for example, we debate the German pension system, we want to adopt a Social Security system designed on Bismarck's system which, in fact, to some extent happened—it may be terribly important for the courts to look at the history in Germany of the pension system that Congress adopted. The legislative history is always appropriate. Treaty, maritime law, all mentioned in the Constitution, are always appropriate for the courts to recognize. What Feeney-Goodlatte prohibits is overturning constitutional precedent, is creating or finding new constitutional rights or privileges based on contemporary post-constitutional law. With that, I think that there is no more important question to ask the nominee that we expect at any time now, and all future nominees in terms of their jurisprudential approach. It seems to me that it is appropriate for nominees to comment on this. After all, we have Judge Scalia, Judge Breyer, Judge Ginsburg, and Judge O'Connor at a minimum, not only in their opinions, but off the bench, debating the legitimate use of international law to determine our own constitutional rights. I will end, Mr. Chairman, by suggesting that when courts do what I have suggested they have done in the three cases I have cited, they in my view violate article I, article II, article III, article IV, article V and article VI. Perhaps we will get into that. I can't find anything in article VII that the judges are violating with respect to their oath when they engage in this procedure. And I yield back to the Chairman. Mr. CHABOT. Thank you very much. We have a very distinguished panel with us here this afternoon. We are anxious to get to them. I would like to introduce them at this time. Our first witness will be Mr. Viet Dinh. Mr. Dinh currently is a professor of law at Georgetown University Law Center and founder and principal of Bancroft Associates. His credentials are too numerous to list, but I will note that he previously served as U.S. Assistant Attorney General for Legal Policy from 2001 to 2003, served as Special Counsel to the U.S. Senate Whitewater Committee, and as Special Counsel to Senator Pete Domenici for the impeachment trial of the President. He was a law clerk to both Judge Lawrence H. Silberman of the U.S. Court of Appeals and to U.S. Supreme Court Justice Sandra Day O'Connor. It is very nice to see you again, Professor. Our second witness is Mr. Edward Whelan, and Mr. Whelan is the President of the Ethics and Public Policy Center, where he directs the Center's program on the Constitution, the Courts and the Culture. Prior to joining EPPC, Mr. Whelan worked at the Department of Justice where he served as the Principal Deputy Assistant Attorney General for the Office of Legal Counsel, starting the position right before September 11th. Mr. Whelan previously served as General Counsel to the U.S. Senate Committee on the Judiciary. He is a former law clerk to both Judge J. Clifford Wallace on the U.S. Court of Appeals for the Ninth Circuit and for U.S. Supreme Court Justice Antonin Scalia. We welcome you here this afternoon. Our third witness is Nick Rosenkranz, who also worked in the Department of Justice's Office of Legal Counsel, serving as an Attorney-Advisor. Prior to joining the Department of Justice, Mr. Rosenkranz served as a law clerk for both Judge Frank Easterbrook on the U.S. Court of Appeals for the Seventh Circuit and for U.S. Supreme Court Justice Anthony M. Kennedy. We welcome you here this afternoon, Mr. Rosenkranz. Our fourth and final witness is Sarah Cleveland, Marrs McLean Professor in Law at the University of Texas School of Law. Ms. Cleveland is a former Rhodes Scholar and a law clerk to U.S. Supreme Court Justice Harry Blackmun. Her interests include international human and international labor rights, foreign affairs and the Constitution, and Federal civil procedure. She is the author of many publications, including "Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth-Century Origins of Plenary Power in Foreign Affairs," Texas Law Review, 2002. We thank you very much for being here this afternoon, Ms. Cleveland. For those who have not testified before this Committee before, let me explain very briefly our lighting system. We have what is called the 5-minute rule. You basically have 5 minutes to testify. Everyone, including Members up here, are limited to 5 minutes. We have the system there, the green light will be on for 4 minutes, the yellow light, we hope it wasn't working in the last hearing we had a few hours ago, we hope it is working now. The yellow light is supposed come on for 1 minute. And then the red light, we would ask you to wrap up as close as possible when that light come on. We will give you a little leeway but we would ask you to keep as close to that as possible. It is the practice of this Committee to swear in all the witnesses appearing before it. So if you would all please rise at this time and raise your right hand. [Witnesses sworn.] Mr. CHABOT. Thank you very much. All witnesses have answered in the affirmative. We will begin with you this afternoon, Professor Dinh. You have 5 minutes. TESTIMONY OF VIET D. DINH, PROFESSOR, Mr. DINH. Thank you very much, Mr. Chairman, and Members of the Committee. Thank you for the opportunity to be here again to talk about this important topic raised by House Resolution 97: When, if ever, is it appropriate for American courts to consult foreign courts of law in an interpretation of purely American law, particularly the United States Constitution? Let me start, as Mr. Feeney did, by listing the various areas in which, in my opinion, consideration of foreign sources of law would not only be appropriate but I think essential in the decisionmaking process of U.S. courts. First, obviously, where the case turns on the meaning of a foreign law. For example, in the case 2 years ago of J.P. Morgan v. Traffic Stream. Second where the case turns on the actions and |