[Congressional Record (Bound Edition), Volume 155 (2009), Part 12]
[Senate]
[Pages 16820-16821]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          SOTOMAYOR NOMINATION

  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

[[Page 16821]]

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.
  The ACTING PRESIDENT pro tempore. The Senator from Florida.
  Mr. NELSON of Florida. I ask unanimous consent to speak for 15 
minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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