Sotomayor didn’t intend to make a public announcement about this: she made the comments privately at a Yale Law School 30th reunion event, which she asked that reporters not be allowed to attend. State Sen. Ed Meyer, however, who also attended the event, told a reporter for the New Haven Register that Sotomayor “gave the most astounding account of how the president selected her,” talked about shopping for clothes to wear to the acceptance ceremony, and reported how government officials instead told her to bring five suits. They would tell her which one she should wear.

Since then, Republicans have increasingly turned against Sotomayor, with Sen. Lindsey Graham (R-S.C.) the only one on the Judiciary Committee to support her nomination. In her report, Totenberg said Sotomayor will be lucky to get even ten Republican votes, and half of those are lawmakers who are retiring. Sen. John McCain (R-Ariz.) said on Sunday that he’s still “going back and forth” on whether he’ll vote for the nominee, despite the large Latino population in his home state.

While some Republicans, like Graham, realize the Hispanic vote is growing and will be important to Republican influence in the future, many more are simply eager to appeal to their conservative white base in upcoming elections. And with influential conservative TV pundits like Pat Buchanan saying that white working class folks are the most discriminated-against group in America today, as he did on MSNBC, and Fox News commentator Glenn Beck saying President Obama “has a deep-seated hatred for white people,” the Republicans’ immediate fears seem to be getting the best of them.

Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., says he will schedule a vote on Sonia Sotomayor’s nomination to the Supreme Court for July 21, though any committee Republican can hold over the vote for one week.

Sonia Sotomayor at her Senate confirmation hearing on Tuesday (WDCpix)

It took four months to confirm Harold Hongju Koh as the State Department’s legal adviser, largely because he believed in the relevance of foreign and international law.

By the end of the second full day of questioning Supreme Court nominee Sonia Sotomayor on Wednesday, it was clear that similar issues are troubling Republicans about her confirmation as well. And in her case, it’s a lifetime appointment that’s at stake. In sharp questioning, critics accused her of flip-flopping on the issue, stating in earlier speeches that foreign law should influence judges’ reading of the U.S. Constitution, and then testifying at the hearing that only U.S. law controls cases in U.S. courts.

Illustration by: Matt Mahurin

The fear among Republicans, as Sen. John Cornyn (R-TX) put it, is that on the Supreme Court, Sotomayor will be untethered from the constraints that have, until now, controlled her opinions on the court of appeals. “You will be free as a U.S. Supreme Court justice with no court reviewing those decisions,” said Cornyn.

Sen. Tom Coburn (R-Ok) was among those who pressed Sotomayor hardest about her views on foreign law at the hearing yesterday. He quoted passages from a speech she gave to the ACLU in Puerto Rico in April in which she said: “to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to some good ideas.”

Coburn was very concerned, he said. “Can you cite for me the authority either given in your oath or in the Constitution that allows you to utilize laws outside of the country?”

“My view is that there is none,” said Sotomayor.

“So today do you stand by this statement that there is no authority to utilize foreign law in making decisions under the constitution?” he asked.

“Foreign law cannot be used as a holding or a precedent or to bind an outcome of a legal decision interpreting the constitution,” Sotomayor repeated.

Coburn persisted, reminding Sotomayor that she’d told the ACLU that “to suggest that you can outlaw the use of foreign law is based on a fundamental misunderstanding, and is “asking judges to close mind to ideas.” How could she reconcile those positions?

Sotomayor methodically explained that there is “no conflict” between what she told the ACLU and what she said at the hearing. In her speech to the ACLU, she said, “repeatedly I pointed out both that the American legal system was structured not to use foreign law as a holding or as precedent. What I pointed out in that speech is that there was a public misunderstanding of the word “use” in that discussion. What judges do is educate themselves, they build up a store of knowledge that one might consider. That’s just thinking.. . . In my experience when I’ve seen other judges cite to foreign law, they’re not using it to drive the conclusion, they’re using it to make a comparison,” she said. “They’re not using it to compel a result.”

That did not satisfy her critics, however. Sen. Jeff Sessions (R-Ala.), quoted from the same ACLU speech, noting that she’d said, citing Justice Ruth Bader Ginsburg, that “unless American courts are open to discussing the ideas raised by foreign cases and by international cases, that we are going to lose influence in the world.”

“That’s troubling,” said Sessions, who, like Coburn, suggested that now Sotomayor was changing her tune.

Sotomayor’s critics have been making the case to the media as well. On Tuesday, Lou Dobbs on CNN hosted Ed Whelan, President of the Ethics and Public Policy Center and contributor to the National Review, who made that argument, without any correction from Dobbs. And Politico reported after yesterday’s hearing that Sotomayor “seemed to pull back from a speech defending the use of foreign law by American judges.”

In fact, a look at what she told the ACLU and what she said at her hearing makes clear that Sotomayor’s views on the role of foreign law have been remarkably consistent, but repeatedly taken out of context.

Here’s what Sotomayor told the ACLU in April:

“We don’t use foreign or international law. We consider the ideas that are suggested by international and foreign law. That’s a very different concept. And it’s a concept that is misunderstood by many. And it’s what creates the controversy in America that surrounds the question of whether American judges should listen to foreign or international law. . . How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think. And to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to some good ideas. …. Ideas are ideas. Whatever their source. Whether they come from foreign law or international law or a trial judge in Alabama or a circuit court in California or any other place, if the idea has validity, if it persuades you, then you’re going to adopt its reasoning. If it doesn’t fit, then you won’t use it. And that’s really the message that I want you to leave with here today.

American law is structured against the use of foreign and international law…But nothing in the American legal system stops us from considering the ideas that that law can give us.”

Seen in its full context, this passage doesn’t seem particularly controversial; it never allows foreign law to control American legal decisions. So what’s the big controversy?

Although the issue comes up rarely, it can arise in particularly controversial situations involving societal norms and ethics, such as the death penalty. And that’s where conservatives tend to object to it.

The foreign law controversy most recently took center stage when, in 2005, the Supreme Court decided by a narrow 5–4 majority that it it violates the Constitution’s ban on “cruel and unusual punishment” to impose the death penalty on someone who had committed the crime under the age of 18. Reversing an earlier opinion from 1989, the court in Roper v. Simmons made the 2005 decision based on “evolving standards of decency.” To determine those, the court looked first to the states, which were increasingly outlawing the execution of juvenile criminals. But it also considered the laws of other countries, noting that while seven other countries had in the past executed juveniles, by 1990, the United States stood alone in the world as still endorsing the practice. The Court added that only the United States and Somalia had not ratified Article 37 of the United Nations Convention on the Rights of the Child, which expressly prohibits capital punishment for crimes committed by juveniles.

Even considering international treaties or foreign laws deeply offends many Republican senators, however. (Democrats have essentially ignored the issue.) “I’m not sure I agree with that [idea that we should consider foreign law], certainly not on 14th Amendment and 8th Amendment cases,” said Coburn yesterday. “Should we worry about what other people think about us? Is it important that we look good to people outside of this country, or is it more important that we have a jurisprudence that’s defined correctly?”

In response, Sotomayor — who has never referenced foreign law in any of her rulings — carefully chose the latter option.

And Sotomayor actually answered some of them.

In particular, asked by Franken whether she believes the Supreme Court’s recent decision invalidating part of the Voting Rights Act was an “activist” decision that overrode the intent of Congress and the language of the Constitution, she declined to comment on the Supreme Court’s opinion, but instead pointed out her own ruling in a previous case involving the Voting Rights Act, strongly implying that she thought the Supreme Court had indeed gone too far.

In the case she decided, “I suggested that issues of changes to the Voting Rights Act should be left to Congress in the first instance,” she said. That was one of the most direct answers on an issue likely to come before the court that she’s given yet.

And Franken wins points for asking another roundabout question meant to elicit her views on “judicial activism” — a phrase Sotomayor said she doesn’t like to use.

“How often have you decided a case on an argument or a question that the parties have not briefed?” asked Franken.  This question goes to the heart of the Ricci reverse discrimination case, where the Supreme Court on its own set out a new standard for lower courts to follow, then refused to send the case back to the courts to let the parties brief how it applied to the facts at hand.

Sotomayor could not remember a single instance of doing that as a judge.

She also couldn’t remember, when Franken asked her as he wound up his questioning, the name of the one case that the prosecutor on the Perry Mason show won.  To which Franken replied: “Didn’t they prepare you at the White House for this hearing?”

Here’s Cornyn, speaking to Sotomayor with a tone of severe disapproval: “You wrote that the law is always in a necessary state of flux. That it’s not a definitive ‘capital L’ law that many would like to think exist. And that the public fails to appreciate the importance of indefiniteness in the law. Can you explain why you think indefiniteness is so important?”

“It’s not that it’s important to the law as much as it is what legal cases are about,” Sotomayor responded in the same patient, methodical tone she’s used throughout her confirmation hearing. “People bring legal cases to the law because they believe precedents don’t clearly answer the factual situation in their case. That’s why they bring cases.  If law was always clear we wouldn’t have judges. Its because there is indefiniteness not in what the law is but its application to new facts that people sometimes feel it’s unpredictable.”

But Cornyn persisted: “You wrote what appears to be an endorsement that judges can change the law,” he said, clearly disturbed by that idea.

Interestingly, when Cornyn criticized Sotomayor for her decision in the reverse discrimination case of Ricci v. DeStefano, and expressed his support for the Supreme Court’s decision, he didn’t mention that the Supreme Court made new law in that case. As Sotomayor explained when Cornyn expressed “shock” that Sotomayor and the other Second Circuit judges gave such “short shrift” to the sympathetic claims of the hardworking white firefighters:

“The Supreme Court in its decision set a new standard for reviewing what an employer is doing — the substantial evidence test,” said Sotomayor. That standard wasn’t addressed by the court of appeals, she said, because it wasn’t even argued to the court by the parties in the case. “That was a new standard created by a decision by the court, borrowing from other areas of the law.”

Cornyn quickly moved on to the next subject.

The senators know that, of course, but that doesn’t stop them from asking lots of inane questions they know Sotomayor won’t answer. Sen. Lindsey Graham (R-S.C.) at times barely stopped peppering her long enough to let her start her answer before he moved on to the next subject: from racial preferences to gun rights to publicly funded abortions.

Perhaps most disturbing about the hearings wasn’t the political posturing, which is to be expected.  It’s the dishonest way in which the debate has taken shape between Republicans and Democrats, as if Democrats are squishy touchy-feely people who let empathy guide judicial decision-making, and Republicans are automatons who miraculously apply the law to the facts without letting any trace of humanity get in their way.

Harvard Law Professor Laurence Tribe aptly describes how a historic and arguably important debate about constitutional interpretation and judicial processes in this hearing has become completely disingenuous:

Attending to one’s prejudices and doing one’s best to set them aside is admirable. Convincing oneself that one can render judgments in a way that makes one’s personal experiences and views irrelevant is dangerous self-deception. Why, after all, do the justices so often disagree about what result “the law” commands? What accounts for their different perceptions of the rules of law that govern disputes and of the facts involved in those disputes? Justice Antonin Scalia, among others, has publicly said that his own background and upbringing necessarily influence how he decides cases. How could it be otherwise?

Tribe was actually criticizing Sotomayor for flip-flopping on her previous positions that acknowledged she and every judge would be influenced by her background and experiences. But I don’t see Sotomayor as changing her tune so much as having to over-simplify an inherently complex and delicate concept to a bunch of aggressively tone-deaf senators, now themselves sitting in judgment and arguably abusing that power.

Sotomayor has obviously been practicing patience: Despite what Graham called her “nasty” judicial temperament, even as she dodged the slings and arrows, on Tuesday she was often smiling.

“You stand out like a sore thumb in terms of your temperament,” he charged. “What’s your answer to these criticisms?”

Sotomayor: “I do ask tough questions in oral argument. … When I ask lawyers tough questions it’s to give them an opportunity to explain their positions on both sides and to persuade me that they’re right. I do know that in the Second Circuit, because we only give litigants ten minutes of oral arguments each, that processes are different in the Second Circuit than in most circuits across the country. Our court is generally described as a hot bench. … That means that they’re peppered with questions. … Lots of lawyers who are unfamiliar with the process in the Second Circuit find that process difficult and challenging.”

Graham interrupted her. “They find you difficult and challenging more than your colleagues,” he said, adding: “I never liked appearing before a judge who was a bully. Do you think you have a temperament problem?”

Sotomayor tried to say no, but Graham interrupted her again.

“I would suggest to you as you go forward that these statements are striking,” he said. “They’re not about your colleagues. Maybe these hearings are a time for self-reflection.”

–

You can follow TWI on Twitter and Facebook.

Sotomayor attempted to align her comment about how a “wise Latina” would in some circumstances reach “a better decision” than a white male judge with Justice Sandra Day O’Connor’s earlier statements that “a wise old man and wise old woman will reach the same conclusion in deciding cases.”“I don’t think that anyone would think we intended to say that we would make wiser decisions,” said Sotomayor today, after Kyl read portions of her 2001 speech at Berkeley back to her. “I intended to talk about the value that life experiences had,” she said. “The words I chose, taking the rhetorical fluourish, was a bad idea. I do understand that there are some who have read this differently, and I understand why they are concerned. But I have repeated, more than once, and if you look at my history on the bench I do not believe that any gender or race group has an advantage in sound judging. And I also believe that every person regardless of their background can be good and wise judges.”

–

You can follow TWI on Twitter and Facebook.

Sen. Russ Feingold (D-Wisc.), for example, asked her whether it was strange that the OLC memos, in concluding that the president need not comply with the anti-torture statute, never mentioned the landmark controlling case, Youngstown Sheet & Tube Co. v. Sawyer, in which the court struck down President Truman’s decision to ignore controlling law and seize private private steel mills in support of the war effort.

“Does it strike you as odd that those analyses would not mention the Youngstown case? ” asked Feingold.

Sotomayor responded, “I have never been an adviser to a president so I don’t want to comment on what was done or not done, and it’s likely that some question, and I know at least one existing case, is likely to come before the court.” But she didn’t completely avoid the issue, adding, “I would be surprised if the court didn’t consider the Youngstown framework in a decision involving this question. Because that case’s framework is the framework for how these decisions are generally approached.”

Read into it what you will, but it sure sounded like she agreed with Feingold that it was odd that the OLC memos didn’t mention Youngstown.

–

You can follow TWI on Twitter and Facebook.