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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. KYL. Mr. President, I want to speak on the nomination of Jane Stranch--a vote we will be taking here in about 45 minutes--nominated to the Sixth Circuit Court of Appeals.

It is always with a great deal of reluctance that I oppose a nominee for the bench. Most of the people who are nominated are nominally qualified, in that they have records as attorneys or sometimes as judges in lower courts, have recommendations from bar associations and the like. But occasionally it is necessary to oppose a nominee. And while I certainly acknowledge that Jane Stranch has the qualifications one would expect of a nominee for a court of this significance, I oppose her nomination because of a very troubling development that I see in several nominations.

At some point I think it is important to draw the line and say that the President has got to be very careful not to nominate people who have--and in this case who have not--taken, in my view, a strong enough position against applying foreign law to interpret the American Constitution or to interpret American laws that apply to cases before them. We have seen this before in nominees, in then-Judge Sonia Sotomayor. When she had her Supreme Court hearing, several of us on this side of the aisle raised the question with respect to her position on foreign law. In many respects she said: Don't worry, I won't apply foreign law. Then in one of the cases in her first term as a Supreme Court Justice she did exactly that.

We have raised the same question with regard to people such as Harold Koh and others. I want to quote one statement Ms. Stranch made to illustrate the point I am trying to make. At some point, unless Members vote against nominees who appear to take these positions, I suspect the President will keep on nominating people with these views and then wonder why we oppose them. So I am going to be clear about why I oppose this nominee, even though I am sure many of her other qualifications are fine. She said this regarding cases where foreign law was used:

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. Roper [a Supreme Court case] specifically noted that the foreign law references were ``not controlling'' and were presented for the purpose of confirmation of the Court's conclusions.

The problem with that statement--and while I appreciate the fact that she says foreign law is not controlling--is that the reality is foreign law has no place in the interpretation of the American Constitution and yet the Court continues to do that, with Justices continually saying it isn't controlling. If it is not controlling, why do it? Courts are supposed to look at precedent. What is precedent? Precedent is law that controls the case. There is no point in going outside of that and bringing in extraneous material. If it is not controlling, it is extraneous. If it is extraneous, it is redundant. Why bring it in?

I appreciate her recognition that foreign law is not controlling, but interpreting the Constitution doesn't require the application of foreign law to develop material on societal norms or standards of decency or to refute contrary assertions, and it doesn't have any relevance in even confirming American views, as she said in her statement. If the American view of the Constitution is X, let's say, then it is X. That is the American view. And if it is agreed to by other countries, that is fine. If it is not, it is not the judge's business to inquire into it and wonder why it does agree or does not agree with the American view.

I think that until enough of us register the view that we are not going to vote for judges who subscribe to the views Jane Stranch has articulated, as I said, I suspect the President will simply continue to nominate those individuals, and that is something I think the majority of us--certainly the majority of Americans--would object to.

Again, I regret having to express my opposition to this nominee, but in order to render my objection to the kind of jurisprudence they mentioned, the only way I can do that, I gather, is to vote no, which is what I intend to do.


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