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    Not a Zero-Sum Game: Replacing Justice Souter Risks a More Activist Court

    Though certainly no originalist, Justice David Souter is not a complete judicial activist, either. On a number of cases and issues, he has rejected the activist “empathy” standard promoted by President Obama to instead cast votes and write opinions that are in accord with the demands of the Constitution and … More

    A Supreme Court Vacancy: What’s at Stake, What’s Required

    The news that Justice David Souter will be resigning from the Supreme Court has left some conservatives momentarily confused. It should not. As much as Justice Souter disappointed those faithful to the Constitution, and those disappointments are legion, he was reasonable or even sound in several key areas (more will … More

    And Then What, Dean Koh?

    Today’s confirmation hearing for Harold Koh, President Obama’s nominee as Legal Adviser for the State Department, is an important hurdle, but it’s not the last one. As a transnationalist, Koh is not normally respectful of the Senate’s “advice and consent” role in making treaties. The full Senate can therefore be … More

    Questions for Koh

    Today at 2:15 the Senate Committee on Foreign Relations will hold a confirmation hearing for State Department Legal Adviser nominee Harold Koh. While Koh has an impeccable academic resume, his opinions opinions regarding the role that rulings of foreign courts should play within the U.S. legal system raise serious national … More

    Questions for Secretary Napolitano: Workplace Enforcement

    DHS Secretary Janet Napolitano is tentatively scheduled to testify before the United States Senate Judiciary Committee about DHS immigration enforcement policies on May 6, 2009. Given Secretary Napolitano’s novel interpretations of federal law, the Heritage Foundation will be posting a series of questions (and suggested answers) for the Secretary. Question … More

    What Happens When the First Amendment Meets Criminalization of Speech?

    As we pointed out on Monday, State Department Legal Advisor nominee Harold Koh’s praise for the “Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials” is misguided in several respects. One of these is that the Convention requires all signatories to criminalize … More

    Harold Koh on International Norms and “Skeptical” Nation-States

    The Administration’s nominee for Legal Adviser to the State Department, Harold Koh, has explained – in his 1998 Frankel Lecture, later published in the Houston Law Review – that one of the Adviser’s roles is to “help maintain . . . habitual compliance with internalized international norms.” He has also … More

    Harold Koh’s Misguided Praise for the Inter-American Convention

    Last week, during his visit to Mexico, administration officials confirmed that Pres. Obama will push the U.S. Senate to ratify the “Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials.” The Clinton administration signed the treaty after the Organization of American States … More

    Napolitano: Illegal Immigration NOT a Crime?

    On Sunday, April 19, 2009, Secretary Napolitano went on CNN’s “State of the Union” and proclaimed that crossing the border illegally is not a crime. This statement left a lot of folks scratching their heads given that U.S. law—the law Napolitano is sworn to uphold—says quite the opposite. Section 8, … More

    Koh Update: Questions for Koh

    The Washington Independent‘s David Weigel has a very fair piece on conservative efforts to educate the public about  State Department legal advisor nominee Harold Koh’s “transnationalist” legal beliefs. Weigel quotes National Review’s Ed Whelan: “What judicial transnationalism is really all about is depriving American citizens of their powers of representative … More