Bench Memos

More Sotomayor on Use of Foreign Law

A follow-up to my post about Judge Sotomayor’s remarkably confusing answer yesterday:  Below (in full) is the exchange this morning between Senator Coburn and Judge Sotomayor on use of foreign law.  Is there anyone who thinks that Sotomayor’s comments (especially the ones I italicize) are coherent or consistent with her April speech

COBURN: You’ve been fairly critical of Justice Scalia’s criticism of the use of foreign law in making decisions. And I would like for you to cite for me, either in the Constitution or in the oath that you took, outside of the treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country.

SOTOMAYOR: I have actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to. And that’s in treaty interpretation or in conflicts of law because it’s a different system of law. I…

COBURN: But I accepted that. I said outside of those…

SOTOMAYOR: Well…

COBURN: In other areas where you will sit in judgment, can you cite for me the authority even given in your oath or the Constitution that allows you to utilize laws outside of this country to make decisions about laws inside this country?

SOTOMAYOR: My speech and my record on this issue is I’ve never used it to interpret the Constitution or to interpret American statutes is that there is none. My speech has made that very clear.

COBURN: So you stand by the — there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?

SOTOMAYOR: Unless the statute requires or directs you to look at foreign law. And some do, by the way. The answer is no. 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.

COBURN: Well, let me give you one of your quotes. 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 mind to good ideas. Nothing in the American legal system prevents us from considering those ideas.

We don’t want judges to have closed minds just as much as we don’t want judges to consider legislation and foreign law that’s developed through bodies, elected bodies outside of this country, to influence what, either rightly so or wrongly so, against what the elected representatives and Constitution of this country says.

So would you kindly explain the difference that I perceive in both the statement versus the way you just answered?

SOTOMAYOR: There is none. If you look at my speech, you’ll see that repeatedly I pointed out both that the American legal system that structured not to use foreign law. It repeatedly underscored that foreign law could not be used as a holding, as precedent, or to interpret the Constitution or the statutes.

What I pointed out to in that speech is that there’s a public misunderstanding of the word “use.” And what I was talking about, one doesn’t use those things in the sense of coming to a legal conclusion in a case. What judges do — and I cited Justice Ginsberg — is educate themselves. They build up a story of knowledge about legal thinking, about approaches that one might consider.

But that’s just thinking. It’s an academic discussion when you’re talking about — thinking about ideas than it is how most people think about the citation of foreign law in a decision. They assume that a — if — if there’s a citation to foreign law, that’s driving the conclusion.

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 just to point something out about a comparison between American law or foreign law, but they’re not using it in the sense of compelling a result.

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