Sonia Sotomayor's Foreign Deceptions

Supreme Court nominee delivers blatantly false testimony at confirmation hearing

As we have seen, even though she had an easy path to confirmation, Sonia Sotomayor failed to defend the progressive vision of judging at her confirmation hearing and instead strove to sound like a judicial conservative. She resorted to even more blatant deceptions when she tried to camouflage her permissive position on looking to foreign and international law to decide the meaning of provisions of our Constitution.

***

In their opening statements, several Republican senators stated their strong opposition to judges’ reliance on foreign and international law in interpreting provisions of the Constitution, and two specifically criticized Sotomayor’s recent speech on the topic to the ACLU of Puerto Rico. So Democratic senator Chuck Schumer undertook to preempt hostile questioning by asking his own questions of Sotomayor.

The exchange between Schumer and Sotomayor (pp. 132-133 of hearing transcript) is remarkable in its brazenness. Schumer began by alleging that Sotomayor’s critics had “selectively quoted” her ACLU speech, and he then selectively quoted it:

You gave a speech in April that has been selectively quoted, discussing whether it is permissible to use foreign law or international law to decide cases. You stated clearly that, ‘‘American analytic principles do not permit us,’’ that is your quote, to do so.

Here’s the actual passage in Sotomayor’s speech, with the key part that Schumer omits in boldface:

I’m going to try first to understand the way that American law is structured against the use of foreign and international law. Because American analytical principles do not permit us to use that law to decide our cases. But nothing in the American legal system stops us from considering the ideas that that law can give us.

Quoting that last sentence would have required Schumer to probe the unintelligible distinction that Sotomayor had posited between “us[ing]” foreign and international law and “consider[ing] the ideas that are suggested by” foreign and international law.” Schumer instead asked:

Just so the record is 100 percent clear, what do you believe is the appropriate role of any foreign law in the U.S. courts?

Lest I be accused of selectively quoting Sotomayor’s response, I will quote it in full (and boldface some passages):

American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given, and my speech explained that, as you noted, explicitly.

There is no debate on that question. There is no issue about that question. The question is a different one, because there are situations in which American law tells you to look at international or foreign law, and my speech was talking to the audience about that.

In fact, I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing. So, for example, if the U.S. is a party to a treaty and there’s a question of what the treaty means, then courts routinely look at how other courts of parties who are signatories are interpreting that.

There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that’s going to be done in that other country, then American law would say you may have to look at that foreign law to determine the contract issue.

The question of use of foreign law then is different than considering the idea that it may, on an academic level, provide. Judges— and I’m not using my words. I’m using Justice Ginsb[u]rg’s words. You build up your story [sic] of knowledge as a person, as a judge, as a human being with everything you read. For judges, that includes law review articles and there are some judges who have opined negatively about that. You use decisions from other courts. You build up your story [sic] of knowledge.

It is important, in the speech I gave, I noted and agreed with Justices Scalia and Thomas that one has to think about this issue very carefully, because there are so many differences in foreign law from American law. But that was the setting of my speech and the discussion that my speech was addressing.

Far from there being “no debate on that question,” there was in fact a raging debate on whether judges may look to foreign or international law to interpret the Constitution. A good chunk of Sotomayor’s ACLU speech addressed the uncontroversial practice of looking to foreign and international law when American law directs you to do so. But the controversial part came toward the end, where Sotomayor spoke approvingly of how “We have looked in some Supreme Court decisions to foreign law to help us decide our issues”—and where she cited Eighth Amendment and substantive due process rulings as examples of using foreign or international law to interpret the Constitution.

The distinction that Sotomayor purports to draw between “use of foreign law” and “considering the idea that it may, on an academic level, provide” makes no sense when the judge is not operating as an academic but is instead drawing on foreign law to make rulings on constitutional issues. (Note that Sotomayor herself says that “You use decisions from other courts.”)

***

In an exchange with Republican senator John Coburn, Sotomayor emphatically reiterated her response to Schumer:

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. [Emphasis added.]

Republican senator Jeff Sessions asked Sotomayor:

There has been a fairly robust, roaring debate over this question. There are basically two sides, one led by Justice Ginsburg and one led by Justices Scalia and Thomas. Don’t you think a fair reading of [your speech] is that you came down on the side of Justice Ginsburg?

Sotomayor denied it. (If you’re a glutton for gobbledygook, you can read her response on p. 396 of the transcript.) Never mind that in her speech she said that Scalia and Thomas had “a point that is validly taken, but I think I share more the ideas of Justice Ginsburg in thinking or in believing that unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world.”

In his second exchange with Sotomayor, Coburn asked her to “affirm to this Committee and the American public that, outside of where you are directed to do so through statute or through treaty, [you will] refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write.” Sotomayor responded:

I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws, except in the situations where American law directs a court.

***

The categorical commitments that Sotomayor made in her live testimony did not last long. One week later, in her responses to post-hearing written questions (see, e.g., transcript at 633-634), Sotomayor retreated to the position that “American courts should not ‘use’ foreign law, in the sense of relying on decisions of foreign courts as binding or controlling precedent.” In other words, her real position—the position that she set forth in her April speech but obscured and dissembled about throughout the hearing—was that it’s fine for American judges to use foreign and international law so long as they don’t treat it as binding. (No intelligent critic of the judicial use of foreign and international law is under the misunderstanding that its proponents treat it as binding; rather, the utter malleability of its use is one of the grounds of criticism.)

***

Less than a year later, Sotomayor provided the decisive fifth vote for Justice Anthony Kennedy’s majority opinion in Graham v. Florida (2010). In holding that the Eighth Amendment does not allow a “juvenile offender” (someone under 18 at the time of the crime) to be sentenced to life in prison without parole for a nonhomicide crime, Kennedy found “support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.” To be sure,

The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment. But the climate of international opinion concerning the acceptability of a particular punishment is also not irrelevant. [Cleaned up.] …

[T]he United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders…. As we concluded in Roper [v. Simmons (2005)] with respect to the juvenile death penalty, “the United States now stands alone in a world that has turned its face against” life without parole for juvenile nonhomicide offenders….

The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

So much for Sotomayor’s solemn commitment to Senator Coburn and to the American people.

***

If hypocrisy is the homage that vice pays to virtue, Sotomayor’s deceptions illustrate the homage that liberal judicial nominees pay to conservative judicial principles.