[Congressional Record (Bound Edition), Volume 156 (2010), Part 11]
[Senate]
[Pages 15594-15595]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF JANE STRANCH

  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.''

[[Page 15595]]

  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.

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