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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."
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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.
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