February 2011

A few weeks ago, President Obama nominated Paul Oetken for a seat on the Southern District of New York. Oetken is eminently qualified for the position: After graduating from Yale Law ('91), he clerked on three courts, including the Supreme Court for Justice Blackmun, spent time at two major law firms, and worked in both the Office of Legal Counsel and the White House Counsel's Office. Perhaps most importantly, if appointed, Oetken would become the first openly gay man to sit on the federal bench. (A nominee to the Federal Circuit, Edward Dumont, is also openly gay; a judge on the Southern District, Deborah Batts, is currently the only openly gay female on the federal bench.)

A few days later, the President nominated Arvo Mikkanen to a seat on the Northern District of Oklahoma. Like Oetken, Mikkanen certainly has the qualifications to be a federal judge: a Dartmouth College and Yale Law ('86) grad, Mikkanen himself clerked for two judges, has worked in both private practice and as an Assistant US Attorney, and is a former judge on numerous American Indian courts. If appointed, Mikkanen would become only the third Native American to ever sit on the federal bench. One of those judges, Frank Howell Seay of the Eastern District of Oklahoma, didn't even learn of his Native American heritage until he was in his 50s.

See the rest of Bressman's post here.

By Martha F. Davis, Associate Dean for Clinical and Experiential Education and Faculty Director of the Program on Human Rights and Global Economy, Northeastern University School of Law. Davis is also co-author of the recent ACS Issue Brief, "Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives."

Last November, Oklahoma voters approved an amendment to their state constitution that would bar state judges from considering international and foreign law, including Shariah Law.

Quickly enjoined by a federal district court because it violates the first amendment, the electoral success of Oklahoma's provision has nevertheless triggered a wave of copy-cat proposals in states across the country, from Arkansas to Wyoming.

Since citations of Shariah law and international law are hardly rampant in state courts - indeed, no Oklahoma court has ever relied on Shariah law - legislators pursuing these measures are either deliberately wasting valuable legislative time or they have some other purpose.

One possibility is that these proposals are simply veiled attacks on the judiciary. Certainly, by associating state court judges with Shariah law and international law, they engage in a post-9/11 form of red-baiting: the measures paint a picture of state judges who are both unprincipled and disloyal to the U.S., favoring international litigants and supporting terrorists through domestic enforcement of Shariah law. Lawyers and the educated public should know that it's an absurd picture in light of the extensive vetting given state judges before they take office; whatever their faults, none of these judges are foreign agents and terrorist sympathizers - and if they were, they would surely be engaged in activities far less obvious than citing Shariah law in a few common law cases.

Still, this broadside attack will inevitably have a chilling effect on state court judges, perhaps discouraging them from even traveling abroad and engaging in cross-border dialogue with foreign judges lest they risk accusations of "considering" foreign legal systems in their decisions. It is through this "chill" that proponents of these measures hope to reinforce notions of American exceptionalism, i.e., the idea that U.S. courts have nothing to learn from their international counterparts.