For weeks, we have been discussing how Judge Sonia Sotomayor could result in the loss of ground for liberals on the Supreme Court given her sometimes conservative voting record in areas like free speech, student rights, and police abuse. One such area concern the use of foreign judgments. She is replacing a jurist who did rely on such judgments, but today Sotomayor aligned herself with Scalia, Thomas, Alito, and Roberts in rejecting the use of such judgments –even to “influence” decisions. It was one of the few substantive moments in the hearings.
The use of foreign judgments has come up repeatedly in recent cases concerning the death penalty and treatment of detainees. In Simmons v. Roper, Justice Kennedy ruled that foreign sources of law can in fact be used as part of the basis for the Court’s rulings.
Sotomayor today rejected even the notion that such judgments could be used as precedent or persuasive authority. That would give a clear majority on the Court for the first time in decades in rejecting such sources.
Here is the exchange:
COBURN: You’ve been fairly critical of Justice Scalia’s criticism of the use of foreign law in making decisions. And I would like for you to cite for me, either in the Constitution or in the oath that you took, outside of the treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country.
SOTOMAYOR: I have actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to. And that’s in treaty interpretation or in conflicts of law because it’s a different system of law. I…
COBURN: But I accepted that. I said outside of those…
SOTOMAYOR: Well…
COBURN: In other areas where you will sit in judgment, can you cite for me the authority even given in your oath or the Constitution that allows you to utilize laws outside of this country to make decisions about laws inside this country?
SOTOMAYOR: My speech and my record on this issue is I’ve never used it to interpret the Constitution or to interpret American statutes is that there is none. My speech has made that very clear.
COBURN: So you stand by the — there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?
SOTOMAYOR: Unless the statute requires 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.
Dredd, what bunch of nations are “thousands of years older than us”?
Agreed – she wasn’t that impressive. What bothers me is her never having taken elocution lessons. It’s not a Spanish accent that she seems unwilling to get rid of, but a general Bronx accent, and one of less educated people. Plenty of professors, executives and others from a poor background take diction somewhere in their training to improve their delivery. I know a Canadian CEO who took diction to get rid of his flat a’s to deal better with Americans. Of course, Henry Kissinger intentionally keeps his German accent to sound like a German professor. Sonia could use diction lessons now if we have to listen to her for years……
Jill:
“I find all of it very creepy,… kabuki theather…”
Exactly, it’s theater for the politicians and a matter of learning how to take he test for the nominee’s. It’s as intellectually corrupt and superficial as the education system is becoming. Public policy debate is so insubstantial in this country as to be nonexistent even when the theactrical exercise is displayed. Mouths are moving but nothing is coming out.
When the public swill gets deep (and just for fun too) I visit The Rude Pundit. He is Carlinesque. He don’t truck with no parsing. He just lays it out in the most visceral (and generally scatological and sexual) terms. He goes for a gut shot every time ’cause he wants to savage his opponent. And he can be quite funny. Crude has seldom been as entertaining or insightful. It’s a commentary site, not a blawg.
He too bills himself as a professional comedian and takes his commentary on the road along with a blow-up doll in blond wig named Ann Coulter which he throws to the audience.
Yes, one can have a short list of news sites and blawgs that list both the Professor’s and The Rude Pundit and they can both nourish your soul. His commentary on the Sotomayor hearings are base and (when you just can’t stand the kabuki anymore) satisfying, like a well made roux.
http://rudepundit.blogspot.com/
For cornyservatives, foreign law was the law that kick started our legal system, our slavery, and our refusing to let women vote.
http://blogdredd.blogspot.com/2009/07/cornyn-sessions-about-thuh-lahw.html
lottakatz:
“BTW, We are hardly in agreement on all things but you sure would have gotten my vote with your answer.”
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I would have happily accepted it, too.
Jill,
The process that we use for confirmation of Supreme Court Justices almost mandates that the nominee say little or nothing of substance. That is how the Roberts and the Alito’s get on the Court by avoiding the truth, and it is how Sotomayor will get on the court by avoiding any scrapes with these Republican Senators worried what we may learn from a foreign court.
Mespo,
I agree that Sotomayor may have skipped the opportunity to bash the neocons, but to do so would have created more political firestorms over the nomination and not done her much good in the long term. I would have enjoyed hearing her say what you suggest, but we will just have to wait until she gets on the bench to see her true colors.
I find all of it very creepy, the Senators, the “news” surrounding the hearings, the mechanical candidate. The Congress and reporters seem completely in their own strange world of celebrity. They are speaking but without real purpose. It’s very discouraging because there are real questions to ask, important information to glean. I feel like it’s just a kabuki theather with spirits lurking in the background.
I am not impressed.
Here’s several opinions at the NYTimes via Glenn Greenwald:
“July 15, 2009, 4:21 pm
The Sotomayor Hearings: A Waste of Time?”
http://roomfordebate.blogs.nytimes.com/2009/07/15/the-sotomayor-hearings-a-waste-of-time/
Also, one circuit appellate court within a state is not bound to the holdings in another circuit appellate court within that state, such as in California. But they can be used as guidance.
The point is, binding and instructive are very different standards and it is incredibly rude, foolish, condescending, and self righteous to think nations that are thousands of years older than us do not understand anything as well as we do.
For over a hundred years AFTER our constitution was formed we were more advanced by not allowing women to vote? Having slaves?
If we had been guided by better instincts we would have matured decades or a century before we did.
Again, I did not read Sotomayer as adhering to anything contra the common sense expressed on this matter by Justice Kennedy and Justice Souter.
Mespo,
As JT pointed out, the current selection process selects against your sort of great answer.
oops … corrected version …
By definition an enemy nation we are at war with is a foreign power.
Thus when we were at war with England for our independence but relied on that nation’s common law and mentioned it in our U.S. Constitution, we resorted to the common law of a foreign power.
We still do today.
One state may rely on another state’s law or may not, or one federal circuit may rely on another federal circuit or not, or a state supreme court may rely on a federal circuit court or not.
Foreign law when included in a treaty becomes the law of this nation binding on all judges in this land pursuant to the wording of our U.S. Constitution.
In the cases I have seen concerning foreign law, the issue is only raised when there is no U.S. law on point under the facts, and the foreign law is looked to for guidance, not for binding precedent.
In the latter case it is like on neighbour relying on the wished of another neighbour, rather than being a “get off my lawn kid” type of neighbour.
I didn’t read Sotomayer’s answers, in the main, as patently against the above principles and issues, but I was listening live, so I may have been distracted.
mespo:
“After now hearing Judge Sotomayor’s comments before the Senate Judiciary Committee, I must say I am not impressed.”
Right.
I too kept waiting for her to say something human and smart and fundamental to her character and philosophy but that was a pretty futile exercize.
BTW, We are hardly in agreement on all things but you sure would have gotten my vote with your answer.
By definition an enemy nation we are at war with is a foreign power.
Thus when we were at war with England for our independence but relied on that nation’s common law and mentioned it in our U.S. Constitution, we resorted to the common law.
We still do today.
More so than one state may rely on another state’s law or be bound by it, or one federal circuit on another federal circuit, or a state supreme court relying on a federal circuit court.
Foreign law when included in a treaty becomes the law of this nation binding on all judges in this land.
In the cases I have seen concerning foreign law, the issue is only raised when there is no U.S. law on point under the facts, and the foreign law is looked to for guidance, not for binding precedent.
In the latter case it is like on neighbour relying on the wished of another neighbor, rather than being a “get off my lawn kid” type of neighbour.
I didn’t read Sotomayer’s answers, in the main, as patently against the above principles and issues, but I was listening live, so I may have been distracted.
After now hearing Judge Sotomayor’s comments before the Senate Judiciary Committee, I must say I am not impressed. While Sessions was a “raging bull'” with all the racial sensitivity of a Grand Dragon, the good judge missed one ample opportunity after another to put him in his place in an elegant and persuasive way. She did not, preferring to launch into some existential round-about of confess and avoid. Not that I am in their league, but those hand-wringing arguments would not persuade me if I sat on teh High Bench to which she aspires. Even more so, if i were to met with legal ideologues bent on imposing an archaic view of the Constitution I abhorred (See, Scalia, “Why do I Bother Reading This Dead Old Document: Reflections on the Constitution.”)
Here’s one exchange that should be been hit out of the park by Sotomayor, armed with a filibuster proof supermajority,but wasn’t:
“SESSIONS: Judge, there was a — apparently, unease within your panel. I — I was really disappointed. And I think a lot of people have been that the opinion was so short. It was pro curiam. It did not discuss the serious legal issues that the case raised. And I believe that’s legitimate criticism of what you did.
But it appears, according to Stuart Taylor, a respected legal writer for the National Journal — that Stuart Taylor concluded that — that it appears that Judge Cabranes was concerned about the outcome of the case, was not aware of it because it was a pro curiam unpublished opinion. But it began to raise the question of whether a rehearing should be granted.
You say you’re bound by the superior authority. But the fact is when the re — the question of rehearing that 2nd Circuit authority that you say covered the case, some say it didn’t cover so clearly — but that was up for debate. And the circuit voted, and you voted not to reconsider the prior case. You voted to stay with the decision of the circuit.
And, in fact, your vote was the key vote. Had you voted with Judge Cabranes, himself of — of — of Puerto Rican ancestry — had you voted with him, you — you — you could have changed that case.
So in truth you weren’t bound by that case had you seen it in a different way. You must have agreed with it and agreed with the opinion and stayed with it until it was reversed by the court.
Let me just mention this. In 1997…
…
SESSIONS: In 1997 when you came before the Senate and I was a new senator, I asked you this. In a suit challenging a government racial preference in quota or set-aside, will you follow the Supreme Court decision in Adarand and subject racial preferences to the strictest judicial scrutiny,” close quote. In other words, I asked you would you follow the Supreme Court’s binding decision in Adarand v. Pena.
In Adarand, the Supreme Court held that all governmental discrimination, including Affirmative Action programs, that discriminated by race of an applicant must face strict scrutiny in the courts. In other words, this is not a light thing to do. When one race is favored over another, you must have a really good reason for it, or it’s not acceptable.
After Adarand, the government agencies must prove there is a compelling state interest in support of any decision to treat people differently by race. This is what you answered: “In my view, the Adarand court correctly determined that the same level of scrutiny — strict scrutiny applies for the purpose of evaluating the constitutionality of all government classifications, whether at the state or federal level, based on race,” close quote. So that was your answer, and it deals with government being the City of New Haven.
You made a commitment to this committee to follow Adarand. In view of this commitment you gave me 12 years ago, why are the words “Adarand,” “Equal protection” and “Strict scrutiny” are completely missing from any of your panel’s discussion of this decision?
SOTOMAYOR: Because those cases were not what was at issue in this decision. And in fact, those cases were not what decided the Supreme Court’s decision. The Supreme Court parties were not arguing the level of scrutiny that would apply with respect to intentional discrimination. The issue is a different one before our court and the Supreme Court, which is what’s a city to do when there is proof that its test disparately impacts a particular group.
And the Supreme Court decided, not on a basis of strict scrutiny, that what it did here was wrong — what the city did here was wrong, but on the basis that the city’s choice was not based on a substantial basis in evidence to believe it would be held liable under the law. Those are two different standards, two different questions that a case would present.”
mespo727272’s reply would have sounded more like:
“I fail to see how Judge Cabranes’s ancestry bears any relevance to this case. In fact, your invoking that issue is precisely the reason for cases like Adarand, where important decisions about a person’s value are based solely on race or ancestry, instead of their abilities or character. One hopes that the experience of the last 45 years or so has shown us the utter futility and immorality of such discrimination, as the manifest public policy emanating from this Body, and our decisions of law have clearly established. I hope that answers your question, Senator.”
Not good. The judiciary has been the last line of defense for the rule of law. I’m afraid that’s over now.