Professor Bainbridge on Tom DeLay

Tom DeLay

Is the enemy of my enemy necessarily my friend? I don't have much in common with or much use for most of Tom DeLay's critics, but I have to admit that the dude has always creeped me out a little. Now, however, he seems to have gone beyond the bend:

"Absolutely. We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous," DeLay told Fox News Radio on Tuesday. "And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous." (Link)

There are legitimate questions about the extent to which judges ought to resort to foreign law when interpreting US law, especially the Constitution, but is Delay trying to say that one foreign law is always irrelevant even if invoked solely by way of analogy? If so, that strikes me as just silly. Consider Justice Bradley's dissent in the Slaughter-House Cases, 83 U.S. 36, all the way back in 1872:

The people of this country brought with them to its shores the rights of Englishmen; the rights which had been wrested from English sovereigns at various periods of the nation's history. One of these fundamental rights was expressed in these words, found in Magna Charta: 'No freeman shall be taken or imprisoned, or be disseized of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him or condemn him but by lawful judgment of his peers or by the law of the land.' English constitutional writers expound this article as rendering life, liberty, and property inviolable, except by due process of law. This is the very right which the plaintiffs in error claim in this case. Another of these rights was that of habeas corpus, or the right of having any invasion of personal liberty judicially examined into, at once, by a competent judicial magistrate. Blackstone classifies these fundamental rights under three heads, as the absolute rights of individuals, to wit: the right of personal security, the right of personal liberty, and the right of private property. And of the last he says: 'The third absolute right, inherent in every Englishman, is that of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution save only by the laws of the land.'

Would DeLay really dare claim that it is "outrageous" for a Supreme Court Justice to thus consider Magna Charta in trying understanding the rights of Americans?

(I'll grant you that one might interestingly speculate on the extent to which a culture warrior like Delay really is fighting an older anti-English battle, but that's the sort of speculation about which I tend to blog only after a nice bottle of claret and a bit of port.)

In any event, where Delay really goes off the rails is in criticizing Kennedy for doing research on the Internet. Why not criticize him for using Lexis and Westlaw while he was at it? To be sure, appellate judges generally should not do an independent investigation of the facts of the case. But judges properly take judicial notice of relevant facts they discover through independent inquiry, cases and other legal authorities they find on their own, and so on. Unless DeLay can show that Kennedy is using the Internet to do an improper investigation of the facts of specific cases before him, this comment transcends mere asininity and achieves true imbecility.

DeLay has become an embarrassment to the Conservative movement. (Far more so than Newt ever was, in my book.) It's time to throw him to the wolves.

The Link can be found here.