Bench Memos

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Sotomayor’s Transnationalist Threat


As I’ve detailed, Judge Sotomayor’s amazingly deceptive testimony about her support of freewheeling resort to foreign and international legal materials provides ample reason to vote against her nomination.  So does the substantive position that she has sought to obscure.

Sotomayor’s April 2009 speech to the ACLU of Puerto Rico makes clear that she would become part of what radical transnationalist Harold Koh approvingly labels the “transnationalist faction” on the Supreme Court—a faction (in Koh’s words) of at least four, and “at times” five, justices who believe that “U.S. courts must look beyond national interest to the ‘mutual interests of all nations in a smoothly functioning international legal regime’” and who “believe in and promote the blending of international and domestic law.”  That judicial approach, as Koh’s own writings show, presents the dual threat of eroding cherished constitutional rights—including First Amendment protections for speech and religion and the Second Amendment—and of inventing newfangled “rights,” like same-sex marriage, that impose the preferences of international leftist elites at the expense of representative government.

Judicial transnationalism threatens particularly pernicious consequences for national security, as it subordinates the decisions of the President and Congress to ever-changing international norms promoted by “progressive”—and often vehemently anti-American— activists and thus endangers our soldiers abroad and impairs our defense. 

One would hope that senators from states with a substantial population of military families or with significant military operations—Democratic senators like Nelson of Nebraska, Johnson of South Dakota, Pryor of Arkansas, and Begich of Alaska and Republican senators like Bond of Missouri and Murkowski of Alaska, to name just a few—would be especially appreciative of the danger of confirming a judicial transnationalist.

Tags: Whelan


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