Bench Memos

Sotomayor’s Answers to Sessions’s Written Questions

Judge Sotomayor has submitted her answers to the written questions submitted by senators.  Before heading away for a while, I’ll try to highlight some lowlights.  I’ll note at the outset that Sotomayor appears simply to have ignored subparts of some of the questions and to have provided a lot of meaningless boilerplate.

Let’s start with Sotomayor’s answers to Senator Sessions’s written questions:

Foreign Law (Sessions’s Q1 under “Second Amendment” heading, p. 1, and Q1-Q9 under “Foreign Law,” pp. 15-20).  After all the confusion and seemingly categorical assurances that Sotomayor provided (with the collusion of Senator Schumer)—e.g., “American law does not permit the use of foreign law or international law to interpret the Constitution,” 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”—Sotomayor now retreats to the trivial position* that “American courts should not ‘use’ foreign law, in the sense of relying on decisions of foreign courts as binding or controlling precedent.”  (The “sense” of “use” that Sotomayor makes is not in fact one of the natural meanings of that very general term.)  Sotomayor maintains that “decisions of foreign courts can be a source of ideas” in “some limited circumstances,” but she makes no effort to suggest any limits, and her April speech indicates that she in fact recognizes none.

I may write more fully on this when I’m back.  For now, I’ll just say that Sotomayor’s oral testimony ought to be recognized to be scandalously deceptive and to provide sufficient cause for any senator to oppose her confirmation. 

Death Penalty (p. 11).  Sotomayor maintains that the PRLDEF task force report that she signed “reflects the policy recommendation” of the task force, not her “personal views.”  But policy views are personal views as to what policy should be.  How are we supposed to believe that she was promoting policies that didn’t reflect her personal views?

* Clarification:  When I label “trivial” her position that foreign decisions should not be binding, I mean that that position is not the focus of any serious dispute.