Over the course of Judge Sotomayor’s confirmation hearing, I wrote a series of posts documenting her amazingly misleading testimony on her position on resort to contemporary foreign and international legal materials in interpreting the meaning of provisions of the Constitution. In this lengthy post, I will provide an overview. (For background on the debate over use of foreign and international law, see my 2005 House of Representatives testimony.) Again, I believe that Sotomayor’s testimony on this matter provides ample cause for any senator to oppose her. Indeed, I wonder how any senator can support a nominee whose testimony is so pervasively deceptive.
1. Sotomayor’s April 2009 speech. In April 2009, in a terribly muddled speech to the ACLU of Puerto Rico, Sotomayor offered a blanket defense of freewheeling resort to foreign and international legal materials. Some excerpts (from an unofficial transcript—the video is here):
[I]deas are ideas, and whatever their source—whether they come from foreign law or international law, or a trial judge in Alabama, or a circuit court in California or any other place—if the idea has validity, if it persuades you, si te convince, then you are going to adopt its reasoning. If it doesn’t fit, then you won’t use it. And that’s really the message that I want you to leave with here today.…
Justice Ginsburg has explained very recently, in an address to the South African Constitutional Court, that foreign opinions are not authoritative, they set no binding precedent for U.S. courts, but they can add to the story [sic] of knowledge relevant to the solution of a question. And she’s right. We have looked in some Supreme Court decisions to foreign law to help us decide our issues. [Followed by approving discussion of resort to foreign and international law in Roper v. Simmons and Lawrence v. Texas]
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 own legal system. It is my hope that judges everywhere will continue to do this because I personally believe that it is part of our obligation to think about things, not outside of the American legal system, but that within the American legal system we’re commanded to interpret our law in the best way we can. And that means looking to what anyone has said to see if it has persuasive value.
In that speech, Sotomayor also posited 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:
I always find it strange when people ask me, “How do American courts use foreign and international law in making their decision?” I pause and say: We don’t use foreign or international law, we consider the ideas that are suggested by international and foreign law. That’s a very different concept.
But as I pointed out, in her speech Sotomayor herself failed to abide by that illusory distinction.
2. Exchange with Senator Schumer. The topic of use of foreign and international law first arose in Sotomayor’s hearing in her Round 1 questioning by Senator Schumer. Here’s the remarkable exchange:
SCHUMER: Let’s go on here a little bit to foreign law, which is an issue that has also been discussed. Your critics have tried to imply that you’ll improperly consider foreign law and sources in cases before you. You gave a speech in April that’s been selectively quoted. Discussing whether it’s permissible to use foreign law or international law to decide cases, you stated clearly that, quote, “American analytic principles do not permit us” — that’s your quote — “to do so.”
Just so the record is 100 percent clear, what do you believe is the appropriate role of any foreign law in the U.S. courts?
SOTOMAYOR: American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given. And my speech explained that, as you noted, explicitly. There is no debate on that question; there’s no issue about that question.
The question is a different one because there are situations in which American law tells you to look at international or foreign law. And my speech was talking to the audience about that. And, in fact, I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing.
So, for example, if the U.S. is a party to a treaty and there’s a question of what the treaty means, then courts routinely look at how other courts of parties who are signatures are interpreting that.
There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that’s going to be done in that other country, then American law would say, you may have to look at that foreign law to determine the contract issue.
The question of use of foreign law then is different than considering the ideas that it may on an academic level, provide. Judges — and I — I’m not using my words. I’m using Justice Ginsberg’s words. You build up your story [sic] of knowledge as a person, as a judge, as a human being with everything you read.
Although Sotomayor works in at the end her fanciful distinction between “use” of foreign or international law and “consider[ing] the ideas that are suggested” by international and foreign law, it’s highly doubtful that anyone listening to the exchange would have a clue that the passage rests entirely on that unintelligible distinction. (Indeed, the brazen Schumer, at the same time that he falsely accuses Sotomayor’s critics of selectively quoting her, omits the follow-on sentence from Sotomayor’s speech: “But nothing in the American legal system stops us from considering the ideas that that law can give us.”) The listener is instead left to believe that Sotomayor categorically opposes resort to foreign or international law “to interpret the Constitution” and believes that such resort is proper only in “situations in which American law tells you to look at international or foreign law.”
3. Initial exchange with Senator Coburn. In Senator Coburn’s Round 1 questioning (full exchange here), Sotomayor perpetuated the false impression that she supported resort to foreign and international law only in limited situations:
COBURN: You’ve been fairly critical of Justice Scalia’s criticism of the use of foreign law in making decisions.…
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….
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.
Near the end of the exchange, she reiterated her peculiar misuse of “use”: “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.” But the “sense” of “use” that Sotomayor posits is not in fact one of the accepted meanings of that very general term.
4. Exchange with Senator Sessions. In Senator Sessions’s Round 2 questioning, Sotomayor confusingly denied siding with Justice Ginsburg on the use of foreign and international law:
SESSIONS: 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 [from her speech] is that you came down on the side of Justice Ginsburg?
SOTOMAYOR: 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.
5. Second exchange with Senator Coburn. In his Round 2 questioning, 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.” Here is the entirety of Sotomayor’s response, which further perpetuated the false impression that she supports resort to foreign and international law only “where American law directs the court” to do so:
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.
6. Written responses. After all her seemingly categorical assurances during her hearing, Sotomayor then retreated, in her written responses to post-hearing written questions, to the position that “American courts should not ‘use’ foreign law, in the sense of relying on decisions of foreign courts as binding or controlling precedent.” (Again, the “sense” of “use” that Sotomayor makes is not in fact one of the meanings of that very general term.) Sotomayor maintained that “decisions of foreign courts can be a source of ideas” in “some limited circumstances,” but she made no effort to suggest any limits (or even any principle that would lead to limits), and her April speech indicates that she in fact recognizes none. In other words, her real position—the position that she set forth in her April speech but obscured and dissembled about throughout the hearing—is that it’s fine for American judges to use foreign and international law so long as they don’t treat it as binding.