I’ve just watched the 22-minute video of an April 2009 speech that Judge Sotomayor delivered to the ACLU of Puerto Rico on the topic of American judges’ use of foreign and international law.  It’s a terribly muddled speech in which Sotomayor explicitly embraces Justice Ginsburg’s misguided position and asserts that Justice Scalia and Justice Thomas misunderstand the issue even as she misconceives the basis of their objections.  (She also posits an unintelligible, but supposedly fundamental, distinction between “us[ing]” foreign and international legal materials and “consider[ing] the ideas that are suggested by” foreign and international legal materials.) 

A week ago, Senator Cornyn launched an impressive series of daily questions for Judge Sotomayor.  His first question in the series—“What is the proper role of foreign and international law in interpreting the United States Constitution?”— draws on Sotomayor’s speech.  I haven’t yet located a transcript of the speech (and haven’t transcribed the relevant portions myself), so I copy here Senator Cornyn’s account:

Judge Sotomayor argued that foreign and international law can be “very important” to American judges as a source of “good ideas” that “set our creative juices flowing.” In response to those who oppose judicial consideration of foreign law to determine the limits of democratic decisionmaking, she stated at the 1:08 mark:

          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 is based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas.

Judge Sotomayor also stated at the 20:48 mark that considering foreign and international law is part of a judge’s “freedom of ideas”:

          To the extent that we as a country remain committed to the concept that we have freedom of speech, we must have freedom of ideas. And to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our legal system. It is my hope that judges everywhere will continue to do this.

As Cornyn points out, Sotomayor’s confused invocation of a judge’s “freedom of ideas” provides no warrant for use of foreign and international legal materials.  The unconstrained judicial role that Sotomayor’s comments reflect, and her apparent willingness to make freewheeling resort to foreign and international legal materials to define the meaning of provisions of our Constitution and statutes, are very troubling.  In my judgment, Sotomayor’s views on this matter provide a compelling basis for senators to vote against her confirmation.

(My July 2005 House of Representatives testimony on the general subject is here.)