Message to Sen. Sessions: A Mind Is a Terrible Thing to Waste

Yesterday, Senator Jeff Sessions (R-AL), ranking Republican on the Senate Judiciary Committee, launched into one of his favorite talking points: He complained once again about federal judges who have the audacity to realize that wisdom does not reside solely within the borders of the United States, and who therefore consider it acceptable to look for wisdom in the rulings by judges of courts of other countries.

As we explained last month following a previous routine by Sen. Sessions on this subject, his assertion that the “idea that foreign law has a place in the interpretation of American law creates numerous dangers” is wildly off-the-mark.

Let’s set aside for a moment the fact that no judge we’ve heard of has ever asserted that the rulings of foreign courts should dictate how American judges interpret the U.S. Constitution, or be considered precedent that must be followed. Let’s also set aside the fact that a number of the Supreme Court’s current Justices, most notably Reagan-appointee Anthony Kennedy, and also, at times, Justice Antonin Scalia, have cited foreign courts and international treaties in their opinions and dissents, or in the course of oral arguments.

Even if this were not the case, there is nothing wrong, or even particularly controversial, with a judge referring to foreign law or foreign judges for guidance on how to decide a particular legal controversy. (After all, plenty of legal concepts have originated or been nurtured outside our borders; everything from women’s suffrage and the anti-slavery movement, to….well, the English common law system upon which our legal system is based.) As Justice Ruth Bader Ginsburg has said, “Why shouldn’t we look to the wisdom of the judge from abroad with at least as much ease as we would review a law review article written by a professor?”

Justice Ginsburg was merely echoing James Madison, who wrote about the importance of “attention to the judgment of other nations,” in Federalist 63 in 1788, explaining that “in doubtful cases, particularly where the national councils may be warped by strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed.”

Yet yesterday, Sen. Sessions specifically targeted Supreme Court nominee Sonia Sotomayor for her past statements regarding foreign law that are hard to distinguish from either Ginsburg’s or Madison’s. According to the New York Times, Sen. Sessions had a particular concern about a recent speech by Judge Sotomayor in which she stated:
To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding. What you would be asking American judges to do is close their minds to good ideas.

Perhaps judges with closed minds are what Sen. Sessions is really after. (Just as he is apparently after judges who don’t follow the law.) But, happily, that is not a criterion for Justices on the Supreme Court.