Judging the truth

During confirmation hearings for Supreme Court nominees, Senators always try to draw out the witnesses on their judicial philosophy and views about the constitutional implications of topical issues. Lately, with few exceptions, the would-be justices have deftly deflected the questions, truthfully but opaquely responding in ways that offer little grist for critics' mills.

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Judge Sonya Sotomayor may have provided one of the exceptions. In particular, the totality of what is now known about her views concerning the role of foreign law in American courts suggest both a lack of candor before the Judiciary Committee and a judicial philosophy that is at odds with the Constitution of the United States. These issues should feature prominently as that panel meets Tuesday to vote on her nomination. That will certainly be the case if Committee member Sen. Tom Coburn of Oklahoma has his way. Last week, he issued a press release raising an alarm about Judge Sotomayor's statements on the subject of "the use of foreign law in American courts." Such use has been aggressively championed by, among others, Harold Koh, President Obama's controversial choice for State Department Legal Advisor. Koh is widely expected to be the next Supreme Court nominee if Sotomayor's candidacy is not derailed by her commitment to what has come to be known as "transnational jurisprudence." In a 2004 American Journal of International Law article, Koh enthused about this jurisprudence as the work of "academics, nongovernmental organizations, judges, executive officials, Congress, and foreign governments interacting in a variety of private and public, domestic and international fora to make, interpret, internalize, and ultimately enforce rules of transnational law." He notes that there is already a substantial "transnationalist faction" in the high court led by Justice Ruth Bader Ginsberg. As Sen. Coburn points out, prior to her nomination, Judge Sotomayor declared: "I share more the ideas of Justice Ginsburg...in believing that unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world. Justice Ginsburg has explained very recently...that foreign opinions...can add to the story of knowledge relevant to the solution of a question, and she's right." The judge also espoused the view that, "International law and foreign law will be very important in the discussion of how we think about the unsettled issues in our own legal system. It is my hope that judges everywhere will continue to do this because...within the American legal system we're commanded to interpret our law in the best way we can, and that means looking to what other, anyone has said to see if it has persuasive value." This hews basically to the standard transnationalist line. In the course of her nomination hearing, though, Judge Sotomayor espoused a very different attitude under cross-examination by Dr. Coburn:

Sen. Coburn: "[W]ill you affirm to this Committee and the American public that, outside of where you are directed to do so through statute or through treaty, [you will] refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write? Judge Sotomayor: "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 a court." Sen. Coburn: "So...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: "Unless the statute requires you 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."

That sounds pretty definitive, and reassuring. Yet, as Dr. Coburn's release makes plain, in response to questions submitted by senators for the record, Judge Sotomayor subsequently reasserted the idea that foreign law can be "used" by American judges. To be sure, in so doing, she offered a number of caveats: "In some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas." The judge goes on to claim that "reading the decision of foreign courts for ideas, however, does not constitute ‘using' those decisions to decide cases." It is instructive that Judge Sotomayor felt compelled to add that, "To the extent that American courts categorically refuse to consider the ideas expressed in the decision of foreign courts, it may be that foreign courts will be less likely to look to American law as a source of ideas." Senators swear an oath to "support and defend the Constitution." As they vote to confer a lifetime appointment to the Supreme Court on Judge Sonya Sotomayor, Sen. Coburn's colleagues must square that pledge with his conclusion: "Judge Sotomayor's written responses confirm many Americans' worst fears that she views the U.S. Constitution, which is the basis of our rule of law, as an insufficient basis for deciding cases and would instead allow the broader arena of international commentary to influence her decisions."