SOTOMAYOR NOMINATION -- (Senate - July 06, 2009)
Mr. KYL. Mr. President, we have heard some debate recently centered on whether it is appropriate for judges to consider foreign law and public attitudes when interpreting our U.S. Constitution and laws.
In our constitutional system, the American people, through their elected representatives, make the laws by which we are governed. As James Madison said in Federalist 49:
The people are the only legitimate fountain of power, and it is from them that the Constitutional charter, under which the several branches of government hold their power, is derived.
Judges have the responsibility to faithfully interpret the Constitution and the laws that have been adopted through our democratic processes. Again, judges do not make the law, they interpret it.
Within our constitutional structure, the growing idea of using foreign law to interpret our own laws and Constitution is troubling and problematic for two main reasons:
First, as Chief Justice John Roberts pointed out during his confirmation hearings, the consideration of foreign law by American judges is contrary to the principles of democracy. Foreign judges and legislators are not accountable to the American electorate. Using foreign law, even as a thumb on the scale, to help decide key constitutional issues devalues Americans' expressions through the democratic process. An analogy would be to allow noncitizens to vote in our elections, thus devaluing the votes of every American.
Second, even if the use of foreign law were not inconsistent with our constitutional system, its use would free judges to enact their personal preferences under the cloak of legitimacy. If an American judge wants to find a foreign judicial decision or legislative enactment consistent with his or her preferred outcome in a case, he or she could find it in the laws of at least 1 of the 192 United Nations member states. That would be judicial activism compounded by the error of using inappropriate precedent.
As we soon begin the consideration of Judge Sonya Sotomayor's nomination to the Nation's highest Court, both the American people and the Senate deserve to know where she stands on the issue of the use of foreign law to interpret the U.S. Constitution. Although we do have some materials that suggest her views, we are still waiting on a number of important documents that will help us better understand her views. For example, in response to the Senate Judiciary Committee's questionnaire, Judge Sotomayor identified 200 public speeches or remarks she has given. Of those, we have not received a draft, video, or a sufficient topic description for more than 100 of them. These include four occasions in which she publicly spoke on the issue of foreign law. On one of these occasions, Judge Sotomayor apparently participated in a panel discussion with foreign judges at St. John's Law School in November of 2006. According to her Judiciary Committee questionnaire, she said she ``spoke on the permissible uses of international law by American courts.'' And in October 2008, Judge Sotomayor participated in a roundtable discussion at New York University's law school on the ``Dynamic Relations Between International and National Tribunals.''
With hearings scheduled to begin in a couple of weeks, getting this information is critical to our understanding of her judicial philosophy. The most notable of the materials we do have is a 22-minute speech Judge Sotomayor gave to the ACLU of Puerto Rico on April 28, 2009, entitled ``How Federal Judges Look to International and Foreign Law Under Article VI of the U.S. Constitution.'' From that speech, we begin to see how foreign law could shape Judge Sotomayor's jurisprudence in the future. Her views were not casual observations but directed to this specific topic. In this speech, she says:
[I]nternational 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 so 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.
What on Earth does this have to do with judging, asking what ``anyone has said to see if it has persuasive value''? How about using the traditional rules of judicial construction, precedents, and our judicial tests based on our common law heritage.
Judge Sotomayor also reveals that she believes foreign law is a source for ``good ideas'' that can ``set our creative juices flowing.'' Deciding an antitrust case or a commerce clause dispute or an Indian law issue or an establishment of religion case does not require ``creative juices.'' Indeed, it could interfere with specific rules of construction or application of precedent. But Judge Sotomayor says that not considering foreign law would be ``asking American judges to close their minds to good ideas.'' What is ``closedminded,'' I would ask, about requiring that American judges interpret our laws and our Constitution? That is what they take their oath of office to do.
Let's also remember that Judge Sotomayor has previously stated that appellate courts are ``where policy is made.'' When you combine the notion that judges may usurp the legislative power of policymaking with the view that foreign law is an incubator of creative ideas for a judge to employ as he or she sees fit, you open the door to the worst form of judicial activism, one completely untethered from American legal principles. Judges do not have the responsibility of finding new good ideas that would make good policy. That is the role for our elected representatives. The ideas expressed by Judge Sotomayor threaten to undermine a system that has served us well for over two centuries.
Judge Sotomayor went on in the same ACLU speech to criticize two sitting justices and align her views with those of Justice Ginsburg, who recently endorsed the use of foreign law at a symposium at the Moritz College of Law at Ohio State University.
Specifically, Judge Sotomayor stated that ``[t]he 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.......''
She continues: ``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. 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.''
Judge Sotomayor's rationale for judges looking to foreign law--so that the United States does not ``lose influence in the world''--is absolutely irrelevant to the role of judges in America. It is the province of the President and the legislative bodies--not activist judges--to make policy and manage foreign affairs.
In defending the Supreme Court's use of foreign law, Judge Sotomayor made an astonishing argument: Courts, she said, ``were just using that law to help us understand what the concepts meant to other countries, and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.'' But the words of our Constitution were not intended to reflect the ``mainstream of human thinking.'' Think about mainstream public opinion in Europe, Asia, Africa, and South America at the end of the 18th century. Even today, it is doubtful the United States would be satisfied being governed by the thinking of most of the governments in the world, such as China, much of the Muslim world, and the dozens of kleptocracies around the world.
As I noted in my remarks that related my concerns about Harold Koh's views on foreign law, if the Founding Fathers had been given to transnationalism, America would not be the leading light of freedom in the world that it is today. Nor would it be a leader in convincing other nations to protect free speech, assembly and other political freedoms, such as are being asserted in Iran right now.
Do we really want judges to look to the laws of foreign countries when deciding our most treasured, constitutional provisions, such as, for instance, the Second Amendment? I do not, and the American people share my view. Judicial activism is not a popular concept.
While I do not intend to judge her qualifications to decide cases on the U.S. Supreme Court based on this one speech, I believe it is fair to ask what else she has said on the subject. There are apparently other speeches that we do not have. The nominee should either find these speeches or ask whather there are other records--for example, transcripts, tape or video recordings, press accounts, and so on--that would indicate whether her April 28 speech is indicative of her approach to judging.
As we begin to consider the nomination of Judge Sotomayor, we will need this information to properly evaluate her qualifications, especially as it relates to her view that using foreign or international law is an appropriate way for U.S. Supreme Court Justices to interpret the U.S. Constitution.