Legislative Branch Appropriations Act, 2010--Continued

Floor Speech

LEGISLATIVE BRANCH APPROPRIATIONS ACT, 2010--Continued -- (Senate - June 25, 2009)

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Mr. SESSIONS. Madam President, the nomination of a new Justice to the Supreme Court has somewhat unexpectedly brought to our mind a core question both for the Senate and the American people, and that is: What, if any, is the appropriate role for foreign law to play in the interpretation of our Constitution--meaning, should judges look at what other countries say when they are determining what are our constitutional rights.

This is not an academic question; it is a question that has the potential to impact our fundamental rights guaranteed to us by the U.S. Constitution.

Until recent years, the answer has always been understood to be no, apart from a few rare circumstances, certainly, and certainly never in the interpretation of the meaning of our precious constitutional rights.

This traditional understanding has served to protect our constitutional right by ensuring that judges remain true to the will of the American people, not the will of foreign judges or courts.

Our system has a critical component: moral authority. That moral authority
comes from the basic concept that our law is a product of the will of the people through the people they chose to represent them. The Constitution begins ``We the People do ordain and establish this Constitution.'' Our laws are enacted by a Congress, a body subject to the will of the people, composed of people elected by the people. We are accountable to the American citizens.

The novel idea that foreign law has a place in the interpretation of American law creates numerous dangers. A number of academics, and even Federal judges, I would say, are seduced by this idea.

Judge Sotomayor clearly shares in that idea. I am somewhat surprised, but it is true, as I will discuss. Her vision seems to be that we should change our laws, or listen to other laws and judges, and sort of merge them with this foreign law. That is the overt opinion of Mr. Koh, who was just nominated and confirmed to the chief counsel of the U.S. State Department. Mr. Koh is quite open about it--shockingly so, really.

But I suggest that if we become transnational, we suffer two monumental blows to our legal system. First, the laws we are subject to would not be laws made by us. This should remind us of the Boston tea party. The colonies objected to paying taxes, but not just any taxes; they objected because the taxes were being imposed on them by the British Parliament, and they didn't have a voice in it. The complaint was ``taxation without representation.'' Thus, the moral power of the American law to compel obedience arises from the people's choice to enact it in the first place. That moral authority is undermined when we allow foreign law, which we had nothing to do with, to impact our law. That is a pernicious thing, I suggest.

Second, it is not ever going to work in a good way. Most countries don't have laws, truth be known. They have politics masquerading as laws. Trying to merge our system, based on truth, the law, and the evidence, with these political legal systems will only result in our being shortchanged. We can reach agreements affecting mutual interests with foreign nations and adhere to them as long as we agree to do so--treaties and other kinds of agreements--but to submit ourselves to their political policies while pretending we are merging our law with theirs is foolishness.

It also creates confusion on a matter of utmost importance. The question is, who does the judge serve, the people of the United States or the people of the world or some individual country with whom they agree or the amorphous ``world community,'' which has been referred to?

Furthermore, reliance on foreign law places our constitutional rights in jeopardy. There are great differences between American and foreign law on cherished rights protected by our Constitution. The Constitution's protection of free speech is probably unparalleled anywhere in the world. Other nations punish sometimes spirited debate on controversial matters. They call it sometimes ``hate speech'' and take action against speech and other things that we would allow without a single thought, but it is criminalized in other countries.

The Constitution clearly protects the right to keep and bear arms. Other nations ban private gun ownership entirely. The Constitution allows for the death penalty. Other nations reject the use of the death penalty, even for violent killers, while some other nations have the death penalty and they impose it without due process being carried out. Yet this troubling potential for infringements on constitutional rights, I suggest, is only the tip of the iceberg.

First and foremost, reliance on foreign law creates opportunities for judges to indulge their policy preferences. In a speech that was given to the Puerto Rico chapter of the American Civil Liberties Union on April 28 of this year, 2009, 1 day after having been contacted by the White House about the possibility of a Supreme Court vacancy, Judge Sotomayor placed herself firmly on what I believe is the wrong side of this debate, stating in this speech:

To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding. What you would be asking American judges to do is close their minds to good ideas.

Well, the ideas our judges are supposed to reflect are the ideas that the Congress sought to be good, the ones we enacted into law--not what was enacted in France, Saudi Arabia, China, or any other place. This is a matter of real importance. This whole concept of foreign law has been a matter of real controversy for several years. It is a timely subject, for sure. I thought it was pretty roundly condemned, although one judge on the Supreme Court defends it. In her speech, Judge Sotomayor explains:

The nature of the criticism comes from ..... a misunderstanding of the American use of that concept of using foreign law, and that misunderstanding is unfortunately endorsed by some of our own Supreme Court justices. Both Justice Scalia and Justice Thomas have written extensively criticizing the use of foreign and international law in Supreme Court decisions.

So she criticized Justice Scalia and Justice Thomas, who have expressed opposition to this. Let me be blunt. I believe it is Judge Sotomayor, not Justices Scalia and Thomas, who is wrong.

Under her approach, a judge has free rein to survey the world to find what they might consider to be good ideas and then impose these views on the American people, calling it law. However, this is not the American system. Our system requires judges to adhere to this Constitution, to the statutes, and to the legal precedent, to the end that judges follow the will of the people of our country as expressed in our law.

The Constitution says ``We ..... do ordain and establish this Constitution for the United States of America,'' not some other. Judges are not free to amend it by citing some other foreign constitution. I think this is a big deal.

Judges are not free to indulge their own personal opinions about what good policy is. Judges do not set policy and search for support for that in foreign law. Despite Judge Sotomayor's claim at a Duke Law School panel discussion that ``courts of appeals is where policy is made,'' judges are not policymakers. They are servants of the law, if they are fulfilling their role properly--the law as it is, not the way they might wish it to be.

Second, reliance on foreign law causes confusion rather than clarification as to the state of American law. Judge Sotomayor claims that foreign law ``can add to the story [sic] of knowledge relevant to the solution of ..... [a] question [sic],'' paraphrasing Supreme Court Justice Ruth Bader Ginsburg, who pioneered this concept. She made those statements. Judge Ginsburg's citation of it in cases and her defense of it in speeches has really led to this controversy to which Justices Scalia and Thomas have responded.

On the contrary, reliance on foreign law creates confusion. Consider Judge Sotomayor's dissenting opinion in Croll v. Croll in the interpretation of a treaty--one of the few instances in which reliance on foreign law may be perfectly permissible. Judge Sotomayor repeatedly criticized the majority judges on the panel as ``parochial'' for consulting American dictionaries to understand the meaning of custody as determined by the Hague Convention on International Child Abduction, and then she relies on foreign interpretations of those words instead. Yet the majority rightly rebuked Judge Sotomayor for relying on the scattered and divergent foreign legal cases on this subject. The majority even cites a Supreme Court precedent that warns against relying on foreign law where it is in a state of confusion.

Third, the reliance on foreign law is also based on a misconception that judges, rather than elected officials in the political branches of government, play a role in advancing our Nation's foreign policy.

Judge Sotomayor states this:

I share more the ideas of Justice Ginsburg in thinking ..... 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.

But judges are not diplomats. It is the job of diplomats to protect our standing in the world, and they have to explain to the world why we rule the way we rule on our cases. That is their responsibility.

Fourth, reliance on foreign law blurs the distinction between domestic and
foreign law, undermining our ability to make democratic choices. The examples of the Supreme Court reliance on foreign law, cited approvingly by Judge Sotomayor, involved the interpretation of the Constitution dealing with purely domestic legal issues that do not and should not touch on any matter of international concern. For example, she approvingly cites the case of Roper v. Simmons in which five Justices of the Supreme Court recently rendered a decision based in part on their review of foreign law and concluded that our Constitution declares that we cannot execute a violent criminal if that criminal is 1 day under 18 years of age when he killed someone or a group of people. There is nothing in the Constitution that says that. They found some foreign law to make an argument about what the Constitution says about what age a State can set for the death penalty. I know we can disagree on what the age should be, but it is a legislative matter.

The Court in that case said it was looking to ``evolving standards of decency that mark the progress of a maturing society.'' What kind of standard is that for law? Where do you find what a maturing society now believes? Do you check with China? Do you check with Iran? Or maybe France? Where do we do this? How do they divine what this all is?

The Court concluded that the death penalty violated the eighth amendment which prohibits cruel and unusual punishment. There are at least six or more references in the Constitution itself to capital crimes, to taking a life without due process. It has always been contemplated in the Constitution that the death penalty is not cruel and unusual. That was for drawing-and-quartering and such matters as that.

If basic constitutional rights are subject to redefinition by considering foreign law, our Constitution ceases to be the bulwark for our liberty it has always been. The Constitution will be weakened. Its authority and power will be diminished. Yet this is precisely the view of foreign law advocated by Judge Sotomayor, who says that these courts that do this ``were just using foreign law to help us understand what the concept meant to other countries, and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.'' I am not sure, did the judge conduct worldwide polls of human thinking? How does a judge find out what the mainstream of human thinking is? In truth, many of the critics of this idea have hit the nail on the head. They say that all it does is allow a judge to look around the world to find somebody who agrees with them and use that as authority to do what they wanted to do all along.

Judge Sotomayor not only advocates for reliance on foreign law, but she also goes a step further than Justice Ginsburg, advocating for adoption of the techniques of foreign judges, even ones that serve to conceal the individual judge's reasoning process from public scrutiny.

In her forward to the book ``The International Judge,'' which she was chosen to do, Judge Sotomayor states:

[T]he question of how much we have to learn from foreign law and the international community when interpreting our Constitution is not the only one worth posing. As ``The International Judge'' makes clear, we should also question how much we have to learn from international courts and from their male and female judges about the process of judging and the factors outside the law that influence our decisions.

In her speech in 1999, Judge Sotomayor expressed admiration for the French tradition of judicial panels of judges issuing single decisions, commenting:

With a single decision, there is less pressure on individual judges and less fear of reprisal for unpopular decisions.

According to law professor William D. Popkin, French legal opinions are anonymous, unanimous, and laconic, the legal ``equivalent of flashing a policeman's badge,'' and ``[t]he irony about French judicial opinion writing is that minimal reason-giving allows French judges to conceal a bold judicial lawmaking role, perhaps even bolder than in the case of U.S. and English judges because of the lack of any formal notion of precedent.''

That is different from the American heritage of law. Judges sign opinions. But we have seen at least three very significant opinions in recent years and months from Judge Sotomayor that were per curiam. No one judge assumed responsibility for the decision, and they were very short--so in a way, maybe she is following that--really surprisingly short in the case involving firearms, in the case involving the firefighters in Connecticut. They were very short opinions and not a lot of discussion and per curiam.

The problems with this tradition are clear. The approach makes it easier for judges to conceal the grounds of their decisions, making it more difficult to assess whether their legal reasoning was justified. Only then can one see if proper principles are being followed. Indeed, Judge Sotomayor may already be following that, as I noted with some of the per curiam opinions we have seen.

I have to say the judge wants more international law, not less. Ominously, Judge Sotomayor states:

International law and foreign law will be very important in the discussion of how we think about the unsettled issues in our 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.

The judge makes an audacious claim that the American legal system commands judges to look at foreign law and highlights the role of making decisions on unsettled cases. There have been and will be many differences between domestic and foreign law on matters that are fundamental. This is normal and understandable because different nations have different cultures, values, and legal systems. The United States should be independent to pursue its own individual choices expressed through the American people through their elected officials to reach the fullest and richest expression of our exceptionalism as a nation.

The American ideal of law is objectivity in deciding the case before the court, that case being sufficient for the day. This is unusual. Most countries are not so restrained. To a much greater degree, foreign judges see themselves as policymakers. In Afghanistan and Pakistan recently, the chief judge was setting all kinds of policy in Afghanistan. I thought it was most unusual. Surely nothing like that would happen here because we have a different heritage.

I suggest that for an ambitious, strong-willed American judge, such freedom to search around the world to identify arguments that might be helpful in allowing them to reach a result they might like to reach would be a great temptation. It is a siren call that ought not to be followed, and great judges do not do so. They analyze the American statutes, the American Constitution in a fair and objective way. They apply it to the evidence fairly and honestly found and render a decision without any regard to the parties before them, to the rich and poor alike, as their oath says. That is why we give them independence as a judge to show they will be more willing to render those kinds of opinions.

I am troubled by this, I have to say. I did not expect to see a nominee who would be one of the leading advocates for the adoption of foreign law in the American legal system.

I think it is wrong. I don't think that is a good idea. The American people need to be talking about that issue as they think about the confirmation that will be coming up.

Our nominee, Judge Sotomayor, is delightful to talk to. She has a record and a practice as a private practitioner, as a prosecutor, as a district judge, and an appellate judge. All of those are good. She has many good qualities. But some of the issues I am raising today and have raised previously do cause me concern.

I thank the Chair, and I yield the floor.

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