Mr. COBURN. Mr. President, I rise today to speak on the nomination of Ms. Jane Stranch to the United States Court of Appeals for the Sixth Circuit. I am concerned about Ms. Stranch's nomination to the court of appeals because, like many recent judicial nominees, she embraces the use of foreign law by the courts, which is contradictory to the Constitution, the judicial oath, and the intent of our Founders.
I reached this conclusion after carefully reviewing her record, her hearing testimony, and her responses to written questions following her hearing. For example, in response to my question asking her whether it is ever proper for judges to rely on foreign or international laws or decisions in determining the meaning of the Constitution, Ms. Stranch admitted she believes using foreign law in limited circumstances is appropriate.
First, she stated that she is ``aware of only a very few cases in which [the Supreme Court] has referenced non-U.S law in a majority opinion, including Roper [v Simmons],'' but, then she continued: ``In these few cases, references to foreign law were made for such purposes as extrapolating on societal norms and standards of decency, refuting contrary assertions or confirming American views. None of these cases used foreign or international law to interpret a constitutional text. The Supreme Court's restraint on this issue is a model for the lower courts.'' Ms. Stanch's misleading answer fails to recognize that, by looking to foreign law to determine whether the imposition of the death penalty for those under 18 has become ``unusual,'' the Court is allowing foreign law to influence its interpretation of a constitutional text. Her statement that the Court is merely confirming American views or refuting contrary assertions is disturbing because foreign countries' views on the interpretation of the U.S. Constitution are irrelevant to what our Founders wrote and believed. Also, Ms. Stranch commended the Supreme Court for its ``restraint'' in its use of foreign law when an appropriate answer would be to condemn the Court for using foreign law at all. Her answer implies that she believes using foreign law is appropriate in some cases, as long as it is limited use.
Ms. Stranch compounded my concern about her views on the appropriate use of foreign law when she responded to my next question asking under what circumstances she would consider foreign law when interpreting the Constitution. She responded that, as a judge, foreign law ``would be used as confirmatory only'' in her cases. This answer suggests a judicial activist approach where she will use foreign law to confirm whatever result she deems appropriate. Ms. Stranch further states that because ``references [to foreign law] are so rare at the Supreme Court level [it] suggests even rarer usage in the lower courts.'' Allowing that the lower court should use foreign law rarely is deeply concerning. Judges should not be using foreign law at all.
Ms. Stranch's answers to questions relating to the proper interpretation of the eighth amendment are also problematic. In response to a question asking how she would determine what are the ``evolving standards of decency'' with regard to the eighth amendment's prohibition of cruel and unusual punishment, she responded by citing the language in the opinion that the Court has ``established the propriety and affirmed the necessity of referring to the `evolving standards of decency that mark the progress of a maturing society' to determine which punishments are so disproportionate as to be cruel and unusual.'' But, she then continues stating: ``The Court held that the beginning point of that determination is its review of objective indicia of consensus as expressed by enactments of legislatures. The exercise of the Court's independent judgment regarding the proportionality of the punishment followed.'' While she is merely reciting what the Supreme Court did in the Roper opinion, she fails to acknowledge what is concerning about the Court's opinion.
First, it is concerning that when the Court in Roper was looking to ``objective indicia of consensus as expressed by enactments of legislatures,'' it was not only looking at other States' laws--as opposed to the law of the State in question--but also to foreign legislatures' laws. Rather than look to other legislatures for ``evolving standards,'' the proper analysis in this case would have been to look to the meaning of the text when the Founders wrote it. Thus, the Court should be determining whether capital punishment for persons under 18 was considered ``cruel and unusual'' when the Constitution was written. To do otherwise embraces an evolving and ever changing Constitution. Ms. Stranch fails to acknowledge this concern. Second, Ms. Stranch admits that the ``exercise of the Court's independent judgment regarding the proportionality of the punishment followed,'' but does not acknowledge that a Court should not be making these types of ``independent'' determinations.
Ms. Stranch's answers on foreign law are concerning because she not only misstates how the Supreme Court has used foreign law in its cases, but she also refuses to pledge not to use foreign law herself. In fact, she believes that ``rare'' usage of foreign law by the lower courts is appropriate. For these reasons, I will vote against her nomination and urge my colleagues to do the same.
I also would note that I believe Ms. Stranch is just one of many concerning nominees by this administration who embrace the use of foreign law by judges. This trend first became apparent with the nomination of Judge Sonia Sotomayor last year. Prior to her hearing, Judge Sotomayor stated that outlawing the use of foreign law would mean judges would have to ``close their minds to good ideas'' and that it is her ``hope'' that judges will continue to consult foreign law when interpreting our Constitution and statutes. She also said ``I share more the ideas of Justice Ginsburg in thinking, 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.''
Similarly, Ms. Elena Kagan asserted that ``it may be proper for judges to consider foreign law sources in ruling on constitutional questions.'' She further stated that judges can get ``good ideas'' from the decisions of foreign courts. For this reason among others, I opposed both Supreme Court nominees.
Even lower court nominees, such as Third Circuit Judge Thomas Vanaskie, have embraced the trend. In his testimony, Judge Vanaskie implied that he believed the Supreme Court used foreign law correctly in the much criticized cases of Lawrence v Texas and Roper v Simmons, and said the ``opinions of international tribunals and foreign courts may be relevant'' when interpreting our Constitution. Because of his statements on the use of foreign law and his expansive view of the commerce clause, I opposed his nomination.
Looking to foreign law is a tool of activist judges who seek to reach the outcomes they desire, based on their personal sympathies and prejudices, rather than on the law. As Justice Antonin Scalia aptly described it, the Court is merely ``look[ing] over the heads of the crowd and pick[ing] out its friends.'' Further, judges who do so violate their judicial oath. A circuit court judge must swear to ``faithfully and impartially discharge and perform all the duties incumbent upon her as a judge under the Constitution and laws of the United States.'' The oath requires our judges to evaluate cases based on U.S. laws and the U.S. Constitution, not the decisions of foreign countries who do not treasure the same liberties and fundamental freedoms enshrined in our Constitution. The decisions of foreign countries should have no bearing on an American judge's decisions.
This progressive trend of looking to foreign law is deeply disturbing and is something I hope my colleagues will consider when voting on this nomination and the administration will consider when nominating individuals in the future.