Yesterday, in response to a question from Sen. Coburn (R-OK) asking whether “there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes,” Judge Sotomayor gave what appeared to be an unambiguous answer. As the Post‘s transcript has it:
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.
On the face of it, this appears to be a repudiation of her statement to the ACLU in Puerto Rico in April 2009, that:
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.
But in reality, the two statements are compatible, and Judge Sotomayor has repudiated nothing. It is important to observe that, by its very nature, the Supreme Court deals with “unsettled issues” in the U.S. legal system: well-settled matters never reach the Court. So her original claim was that international and foreign law do not supply controlling precedents, but “will” affect how Justices think about the cases before them.
Thus, most of her statement before the Senate Judiciary Committee was merely a rephrasing of her remarks to the ACLU: her only apparently concession was to rule out using foreign law to “influence” the outcome. But, moments later, she again stated that, while foreign law does not compel a conclusion, judges should use it to “build up a story of knowledge about legal thinking, about approaches that one might consider.” That is a pure restatement of her ACLU statement.
Furthermore, in keeping with Sen. Coburn’s question, she restricted her comments yesterday to the use of “foreign law,” and did not allude to “international law,” which offers another — and for liberals often more promising — avenue for achieving the same result.
But, more fundamentally, her claim is that it is correct to use foreign law — and, one must presume, international law — as a holding, a precedent, or an influence on a decision interpreting either the Constitution or U.S. law, if the judge is directed by that law itself to consider foreign law. The weakness in this argument is that it is the position of liberal legal activists that the Constitution does require considering international — though not necessarily foreign — law.
This conclusion is difficult for mortals to follow, but since the 1980s, what is known as “customary international law” — the Law of Nations — has controversially come to be considered as part of Federal Common Law, and thus part of the Laws of the United States under the Constitution’s Supremacy Clause. Thus, the argument goes, judges are right to consider international law. Indeed, they are obligated to do so. Thus, Judge Sotomayor’s argument that judges must use this law when directed to do does not repudiate the liberal argument that Sen. Coburn was criticizing: it repeats it.
Regrettably, Sen. Coburn did follow this rabbit down the hole. Let’s hope that he, or another member of the Committee, asks a solid follow-up. It’s not likely that any answer Judge Sotomayor gives will persuade the Committee to vote her down, but she should at least be asked a clear question that exposes the issue at stake.