Since his return to office, President Donald Trump has spearheaded an “America First” foreign policy, which has involved unprecedented cuts to foreign aid. Among these cuts: a reduction of support for U.S. federal and state judges’ participation in international training initiatives. U.S. judges have historically engaged with foreign judges through a range of techniques. For example, international collaboration can take the form of official, ongoing dialogue between courts in different countries; thus, the Supreme Court of the United States regularly meets with the Court of Justice of the European Union to discuss an array of legal matters. A vital form of international judicial collaboration is training, whereby U.S. judges train foreign judges on topics ranging from criminal procedure to patent law. Given the administration’s restrictive attitude towards global engagement, what options are open to those judges and policymakers who are keen to continue international judicial training efforts?
U.S. Judges and International Judicial Training
American judges have a long history of working with foreign lawyers, judges, and courts. To take one celebrated example from the mid-20th century, Chief Justice Earl Warren had a busy schedule of international travel, with one scholar characterizing him as an outstanding practitioner of “informal diplomacy.” In 1956, Chief Justice Warren made a historic trip to India to “observe India’s judicial system in action.” In addition to meeting with senior judges, the Chief Justice met with Prime Minister Jawaharlal Nehru and future Prime Ministers Indira Gandhi and Morarji Desai. To take a more recent example, Justice Anthony Kennedy regularly worked with judicial officers from a range of jurisdictions, well before his elevation to the Supreme Court of the United States. As a judge on the Ninth Circuit, for example, then Judge Kennedy served as supervisor of the “territorial courts in the South Pacific,” which involved travel to Australia, New Zealand, and Japan, among other states.
In the decades following the 1991 fall of the Soviet Union, American participation in international judicial training has blossomed. The year prior, USAID had begun promoting its Democracy Initiative, under which hundreds of U.S. judges have traveled to countries around the world to promote the rule of law. Judges who served as part of USAID’s Democracy Initiative or other programs of the federal executive would train foreign judges “on a host of topics including how to oversee a case, how to write an opinion, and the importance of impartiality.” International judicial training can lead to important gains, when conducted wisely. When U.S. judges work with their foreign interlocutors in a spirit of true collaboration, they may develop judicial reforms that are appropriate to the foreign context and equip those interlocutors to defend the rule of law. In addition, U.S. judges regularly speak about how much they learn about judging and the law from their international work.
This is not to say that U.S. judges have always attained tangible gains through their international training efforts. Rule-of-law initiatives do not always lead to lasting change. Despite the participation during the 2000s and 2010s of U.S. federal and state judges in the training of Chinese judges, few would say that the Chinese judicial system today exhibits the rule of law, at least in its Western formulation. In addition, U.S. participation in international judicial work is open to the criticism that it reinforces traditional Global North-Global South hierarchies and attempts to inappropriately transplant American legal solutions to very different contexts. Ultimately, however, a range of judges have convincingly suggested that the gains outweigh the losses and that American judicial engagement with the rest of the world ultimately redounds to America’s benefit; the global spread of the rule of law reduces the risk of inter-state armed conflict and catalyzes economic interaction.
There are two additional features of judicial involvement in international work that are worth underscoring. First, U.S. judges of differing jurisprudential visions have engaged readily in international work. Justice Stephen Breyer regularly collaborated with and discussed legal matters with judges from around the world, particularly from Europe. This should come as no surprise, for Justice Breyer often cited to foreign law in his judgments. By contrast, Justice Antonin Scalia was rather less likely to draw upon foreign precedent in his judgments but nonetheless engaged actively and successfully in international work. He had taught comparative law as a law professor and, as a Justice of the Supreme Court, would meet regularly with foreign judges; Justice Scalia even managed a visit to the Taiwanese Constitutional Court—an institution that American judges tend not to visit due to the complexities of Sino-American relations.
Second, a hodgepodge of actors and institutions facilitate American judges’ participation in international work. The Federal Judicial Center and the Judicial Conference of the United States’ Committee on International Judicial Relations both conduct important work by facilitating the involvement of federal judges in international activities. The National Center for State Courts has historically entered into contracts with USAID, among other federal bodies, and sent both state and federal judges overseas for rule-of-law initiatives. Foreign courts may directly arrange for visits by U.S. judges. A range of non-governmental organizations, from the American Bar Association to the National Committee on U.S.-China Relations, have also facilitated international judicial engagement in the past. U.S. judges have traveled abroad to conduct training but have also received visiting foreign judges in the United States; the latter category of collaboration is vital, because foreign judges enjoy the opportunity to sit in on live proceedings in U.S. courts and to learn in an immersive environment.
The Trump Administration’s Cuts to International Judicial Work
Although a range of institutions organize international judicial engagement, the federal executive branch has historically funded the lion’s share of this work. USAID was a leading proponent and organizer of rule-of-law initiatives, even though other federal bodies, from the Federal Bureau of Investigation to the Department of Commerce, also draw upon the expertise of U.S. judges. In the course of research on international judicial cooperation for a forthcoming law review article, I spoke with three jurists with extensive experience of participating in or organizing international judicial work, and they all indicated that much of this work has dried up due to the Trump administration’s stance on foreign aid. One jurist indicated to me that “virtually all” of the international judicial work in which U.S. federal judges engage has stopped, due to the abolition of USAID and policy changes in other departments or agencies. Another jurist referred to the events of the past year as an “extinction event for the field of international judicial relations,” though they also cautiously observed that many members of the legislative branch appreciate the value of U.S. judges’ participation in international judicial work. I also learned that the National Center for State Courts has gone from overseeing 39 programs to only overseeing 21; many of the slashed programs involved U.S. judges training judges from fledgling democracies, while the retained programs tend to focus on the topics of law enforcement and counterterrorism.
At no point has the Trump administration fully explained why it has discontinued the funding of various initiatives related to international judicial training. One jurist explained to me that they never saw criteria from the Trump administration governing whether programs would be cut or retained, even though the administration had indicated that it would circulate criteria. Moreover, it is far from clear that the Trump administration’s concerns with foreign aid writ large should extend to the specific topic of international judicial training. The White House has publicly contended that “democracy promotion activities undermine American values, weaken the perception of America abroad, and interfere with the sovereignty of other countries” and excoriated activities that relate to “woke excesses.” But international judicial training often focuses on bread-and-butter issues of court management, comes at the request of foreign states and courts, and has led to the entrenchment of American legal models and approaches around the world. In other words, international judicial work boosts the soft power of the United States, even under the narrower, “America First” understanding of the national interest.
Adapting to an “America First” Foreign Policy
Given that the Trump administration has not publicly explained its opposition to U.S. judges’ engagement in international work, legislators and foreign policy experts who have the ear of the administration should push for a resumption of financial support for this work. Sitting judges should not be the ones to publicly advocate for the reinstatement of funds; to do so would involve them in an intimately political dispute and risk the further degradation of already-poor relations between the judicial and executive branches.
Yet non-judicial advocates for international judicial work have a credible case to make that international judicial engagement represents a low-cost mechanism through which to boost U.S. soft power, persuade foreign jurisdictions to adopt American juristic approaches, and engender further cooperation on a broad set of foreign policy issues. In addition, advocates should make clear that as American judges step away from international engagement, judges from hostile countries are likely to fill the gap. One jurist with whom I spoke put it plainly: China “aggressively moves in when the US pulls out, on all kinds of issues.” If U.S. judges can no longer train and collaborate with foreign judges, those judges may well draw upon the juristic approaches of other countries, not all of which may be aligned with the United States’ national interest. The Trump administration has implicitly indicated its view that some forms of international judicial work are useful, for it has not blocked funding for every single instance of international judicial engagement. At the very least, federal departments and agencies should promote clearer internal guidelines as to the types of international judicial work that are eligible for funding.
In the meantime, U.S. judges can find creative ways to continue their collaboration with foreign jurists. Some degree of international judicial work will continue, given the willingness of non-governmental organizations and foreign courts to fund overseas work by U.S. judges. Foreign judges will continue to visit the United States, even though some foreign judges will undoubtedly choose to avoid travel to this country. One small-bore adaptation that U.S. judges might make is increased use of digital tools: virtual engagement is not the same as in-person engagement, but U.S. judges should maintain their ties with their foreign interlocutors through regular communication and online efforts.
Another adaptation that U.S. judges should consider is increased engagement with other judges within the United States. Judges who travel abroad for international training initiatives often speak about how much they learn from these initiatives. The United States remains a diverse and federalist legal system, marked by a plurality of complementary legal orders. Arguably, a state court judge in Washington state has as much to learn from a judge in Puerto Rico or Louisiana, with their mixed legal systems of common and civil law elements, as from a judge in Madrid or Paris. In a country plagued by political polarization and deep division, perhaps American judges might benefit from drawing closer to their fellow judges across the country. A better appreciation of domestic legal and juristic diversity could well lead to the more effective conduct of international judicial work down the road.
FEATURED IMAGE: A towering justice gavel stands prominently at the center, illuminated by a dramatic blend of blue and purple lighting. Scattered across the scene are monochrome silhouettes of legal professionals (via Getty Images)
Great Job Preston Lim & the Team @ Just Security Source link for sharing this story.
