December 2, 2014
The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014
Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology
The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious
: Trying hard to be 'positive' but never succeeding? Blame Your Brain
April 14, 2014
Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time
: First degree: How America really recovered from a murder epidemic
: When love is not enough: Teaching your kids about the realities of adult relationships
: How you can tell if your financial adviser is setting you up for potential ruin
: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate
: Eating Watermelon Can Help Control High Blood Pressure
April 11, 2014
Rabbi Hillel Goldberg: Silence is much more than golden
: How to value a child for who he is, not just what he does
: A Simple Blood Test Might Soon Diagnose Cancer
: Have A Slow Metabolism? Let Science Speed It Up For You
April 9, 2014
Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?
Samuel G. Freedman
: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau
: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau
: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease
April 8, 2014
Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease
Electric 'Thinking Cap' Puts Your Brain Power Into High Gear
April 4, 2014
A life of love: How to build lasting relationships with your children
Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet
Why 50 million Americans will still have spring allergies after taking meds
Teacher keeps promise to mail thousands of former students letters written by their past selves
April 2, 2014
Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?
Get happy: 20 scientifically proven happiness activities
It's Genetic! Obesity and the 'Carb Breakdown' Gene
Jewish World Review
July 28, 2009
/ 7 Menachem-Av 5769
Judging the truth
Frank J. Gaffney, Jr.
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.
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
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
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
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
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
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 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."
Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.
JWR contributor Frank J. Gaffney, Jr., Deputy Assistant Secretary of Defense for Nuclear Forces and Arms Control Policy in the Reagan Administration, heads the Center for Security Policy. Comments by clicking here.
BUY FRANK'S LATEST
"War Footing: 10 Steps America Must Take to Prevail in the War for the Free World"
America has been at war for years, but until now, it has not been clear with whom or precisely for what. And we have not been using the full resources we need to win.
With the publication of War Footing, lead-authored by Frank Gaffney, it not only becomes clear who the enemy is and how high the stakes are, but also exactly how we can prevail.
War Footing shows that we are engaged in nothing less than a War for the Free World. This is a fight to the death with Islamofascists, Muslim extremists driven by a totalitarian political ideology that, like Nazism or Communism before it, is determined to destroy freedom and the people who love it. Sales help fund JWR.
© 2006, Frank J. Gaffney, Jr.