Bench Memos

Simply Liu-dicrous Testimony—Part 3

At Goodwin Liu’s confirmation hearing (see unofficial transcript), Senator Coburn quoted this passage from one of Liu’s articles:

The use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years.  The U.S. Supreme Court has cited foreign authority in cases limiting the death penalty and invalidating criminal laws against homosexual sodomy, among others.  The resistance to this practice is difficult for me to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.

(Liu, “Developments in U.S. Education Law and Policy,” 2 Daito L. Rev. 18, 27 (2006).)  Coburn then asked Liu his view of using foreign law to interpret the Constitution.  Liu’s response (emphasis added):

I do not believe foreign law should control in any way the interpretation of United States law, whether it’s the United States Constitution or a statute.  I believe that the use of foreign law contains within it many potential pitfalls.  In other words, I think that what I’ve observed the justices doing in some of these cases is, they choose the law that is favorable to the argument, and it isn’t a canvassing of the world’s practices or in any way a full account of the various practices throughout the world with respect to their laws.  And one of the things, I think, that makes this country unique and worth cherishing is that we are, in many ways, in many, many ways, a much freer nation than many of the other countries around the world. And so I think there are many hazards involved in looking at foreign law as guidance for how we interpret our own principles

I think the statement in the law review, if I could clarify it, because I think that was only just a brief paragraph, alludes only to the idea that I think foreign precedent can be cited in the same way that a law review article might be cited, which is simply to say, judges can collect ideas from any place that they find it persuasive. But there’s a very important difference, Senator, and one that I take very seriously, between looking for guidance or ideas versus looking for authority.  And authority is the basis on which cases are decided, not ideas or other forms of guidance.

A couple of comments:

1.  Four years ago, Liu found it “difficult … to grasp” how anyone could resist the practice of using foreign authority in interpreting the Constitution.  Now, at his hearing, he jumps to identify the “many potential pitfalls” and “many hazards” in the practice—pitfalls and hazards that were evident back in 2006.  Maybe he’s somehow learned something in the intervening four years.  Or maybe, just maybe, he’s posing.

2.  The question whether foreign law should “control” the interpretation of American law is a red herring, the same red herring that then-Judge Sonia Sotomayor resorted to.  No one takes the position that foreign law should “control”— judges who are just making it up anyway always want the freedom to pick and choose—and Liu deserves no credit for rejecting that position.  What he was utterly blind to four years ago, and remains inattentive to, is the predicate question whether and how contemporary foreign and international legal materials have any genuine relevance to the issue of American law being decided.  But given Liu’s freewheeling approach to the Constitution, it follows that anything goes….  Judges are just “collect[ing] ideas” they find “persuasive.”