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GOPers Hit Sotomayor on Foreign Law

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Sotomayor-hearing1.jpg

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.

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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, 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.

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