I’ve already documented two instances of Judge Sotomayor’s incredible obfuscation of her support of freewheeling resort to foreign and international law to redefine the meaning of provisions of the American Constitution. In one of these instances, Sotomayor made this seemingly categorical declaration: “American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given.” Despite the vigorous debate on this question, she even asserted: “There is no debate on that question; there’s no issue about that question.”
In the other instance, she made the seemingly categorical declaration that “Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.”
To complete (I think) the record of her hearing testimony on the topic, I add these three additional passages. I may add commentary this weekend, but I think they show clearly that Sotomayor won’t speak straight on the matter.
1. Here’s Sotomayor’s exchange with Senator Sessions on Wednesday:
On the question of foreign law, you, yesterday, said that — said this: “Unless the statute requires or directs you to look at foreign law, and some do” — some statutes do – “by the way.” You go on to say, “The answer is no. Foreign law cannot be used as a holding, or a precedent, or to bind or influence the outcome of a legal decision interpreting the Constitution or American law.” That’s a pretty good statement, I think. But this is what you said before in your speech to the American Civil Liberties Union, actually in April, just two or three months ago in Puerto Rico.
You said this: “International law and foreign law will be very important in the discussion of how we think about unsettled issues in our own legal system. It is my hope that judges everywhere will continue to do this, because within the American legal system we’re commanded to interpret our law in the best way we can, and that means looking to what other — anyone else has said to see if it has persuasive value.” So that’s troubling.
Now, you also said, yesterday, that you agreed with Justice Scalia and Justice Thomas on the point that one has to be very cautious, even in using foreign law with respect to things American law permits you to do. I don’t think that’s exactly correct or a fair summary of the import of your speech.
This is what you said before the ACLU group a month or two ago: “And that misunderstanding”, about using foreign law, “is, unfortunately, endorsed by some of our Supreme Court Justices.” Both — “unfortunately endorsed”. Both Justice Scalia and Justice Thomas have written extensively, criticizing the use of foreign and international law in Supreme Court decisions. They have somewhat a valid point, and you point that out. But then you go on to say, “But I think I share more the ideas of Justice Ginsburg and her thinking in believing that unless American courts are more open to discussing the ideas raised in foreign cases and by international cases, that we’re going to lose influence in the world.”
So everybody knows. There’s been a fairly robust, roaring debate over this question. There are basically two sides, one led by Justice Ginsburg and one led by Justices Scalia and Thomas. Don’t you think a fair reading of this statement is that you came down on the side of Justice Ginsburg?
No, sir. Because these conversations were in the context — and discussions were in the context of my pointing out, just as she had, that foreign law can’t be a holding, it can’t be precedent, it can’t be used in that way. She is talking about the way I was to — and what I said in my speech at the beginning and the end, ideas. What are you thinking about? Judges use law review articles, they use statements by other courts. The New York Court of Appeals, in a recent case, looked to foreign law to address an issue that it was considering, not in terms of a holding for the court, but a way of thinking about it that it would consider. My point is that I wasn’t advocating that it should ever serve as precedent or ever serve as a holding. I was talking about the dialogue of ideas.
2. Yesterday, Senator Coburn asked Sotomayor whether she would “affirm to this committee and the American public that, outside of where you are directed to do so through statute or through treaty, refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write.” In response, Sotomayor stated:
I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.
3. Then, in response to Senator Kyl, Sotomayor stated: “I do not believe that foreign law should be used to — to determine the result under constitutional law or American law, except where American law directs.”