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Supreme Court Justice Anthony Kennedy never mentioned the names of House Majority Leader Tom DeLay or other conservative leaders who are out for his head. But the genial justice’s speech Friday at the 11th Circuit Judicial Conference in Hollywood, Fla., could be interpreted as a low-key repudiation of their verbal attacks. And in comments to a reporter afterward, Kennedy pointedly rejected Republican proposals to punish federal judges for their rulings and reduce the judges’ discretion in criminal sentencing. Kennedy speaks in a modest, friendly style, without Justice Antonin Scalia’s icy brilliance or Justice Clarence Thomas’ melodramatic flair. In his 40-minute talk to hundreds of judges and lawyers at the Westin Diplomat Resort and Spa, Kennedy, a 1988 Reagan appointee, discussed the relationship between international law and U.S. law. As dry as the issue seems, it’s been a flash point between GOP conservatives — including Scalia — and an emerging majority on the Supreme Court — including Kennedy — that is willing to look abroad for guidance. Kennedy analyzed four recent Supreme Court civil law rulings, including a discovery dispute between two Silicon Valley giants, a price-fixing case involving vitamin makers, an effort by a Jewish refugee from Nazi Germany to reclaim her family’s paintings from the Austrian government, and a claim by a Mexican national for damages arising from his abduction and trial in the United States for the torture and murderr of a Drug Enforcement Administration agent. But the high court’s most controversial reference to foreign law was in its 5-4 ruling in March outlawing the execution of people for crimes committed while they were juveniles. Writing the majority opinion, Kennedy cited international rejection of such executions. DeLay called that “outrageous.” On Friday, however, Kennedy cautiously supported the consideration of international law by U.S. courts. “It’s really quite wrong to say that the Supreme Court ignores international law and doesn’t understand it,” he said. Referring to the title of a book by New York Times columnist Thomas Friedman about increasing globalization, Kennedy said “the world is now flat, and the U.S. is beginning to be involved in international law.” After his speech, Kennedy answered a reporter’s questions about other political controversies. He said he and his judicial colleagues are working with Congress to rehire some of the 1,300 probation and sentencing officers who were laid off last year due to budget cuts. He said these officers are needed in the wake of the Supreme Court’s ruling in January that struck down the use of mandatory federal sentencing guidelines. “The only thing worse than sentencing under the guidelines is sentencing without the guidelines,” he said, calling sentencing “the hardest thing judges do.” In a comment that won’t endear him to DeLay and other conservatives, Kennedy suggested that criminal sentences in the United States are too long, noting that U.S. sentences are eight times longer than those in Western Europe. “We have to rethink the sentencing system,” he said. “We have 180,000 prisoners in the California state system alone.” Asked about a bill just passed by the House to impose tough mandatory minimum sentences for gang-related offenses, Kennedy said he “strongly opposes” mandatory minimums, saying they lead to overly harsh sentences. As to House Judiciary Committee chairman James Sensenbrenner’s proposal to create an inspector general to audit and investigate the courts, Kennedy said the courts should be held accountable. But he sharply rejected the idea of Congress punishing judges for decisions it doesn’t like. “This was a lecture to Tom DeLay, but a very indirect lecture,” said Jack Drake, of Whatley Drake in Birmingham, Ala., after the talk. At a post-speech panel, Yale University law school dean Harold Koh called Republican legislation to prohibit judges from citing foreign law in their decisions as “outrageously ridiculous.” Koh said Kennedy and Sandra Day O’Connor have joined Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter in the “transnationalist” camp of the court, while Scalia, Thomas and Chief Justice William Rehnquist make up the “nationalist” bloc, which rejects U.S. interdependence with other countries.

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