There They Go Again: Conservatives’ Obsession With Foreign Law — Elena Kagan the Latest Target

By Judith E. Schaeffer, Vice President, and Courtney Hostetler, Summer Intern

Once again, on the eve of hearings for a Supreme Court nominee, conservatives are trotting out their well-worn and completely misguided attacks on the citation to foreign law by American judges, claiming these are sure signs of “judicial activism.”  Last spring, Senator Jeff Sessions, Ranking Member of the Judiciary Committee, specifically targeted then-Supreme Court nominee Sonia Sotomayor with these charges, citing a speech Sotomayor had given 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.

As we explained here, there is nothing wrong or novel about American judges consulting foreign law when interpreting our own laws or our Constitution, just as they consult other authorities for guidance in forming their opinions.  Indeed, as we discussed at the time here, Judge Sotomayor’s remarks were hard to distinguish from those of James Madison more than two centuries earlier, which expressly recognized the value of “attention to the judgment of other nations.”  More recently, Justice Ruth Bader Ginsburg has asked “Why shouldn’t we look to the wisdom of the judge from abroad with at least as much ease as we would read a law review article written by a professor?”

And why not?  Conservative critics have yet to answer this question.  Rather, they continue their baseless attacks.   At her confirmation hearing, Judge Sotomayor was grilled by Republican Senators about foreign law.  Since Judge Sotomayor had never suggested that an American judge should be bound by foreign law, it was not surprising that she testified, in response to questioning by Senator Tom Coburn (R-OK), that she would “not use foreign law to interpret the Constitution or American statutes.”

Now, Senator Coburn is all in a tizzy over the Court’s recent ruling in Graham v. Florida, holding that the sentencing of a juvenile convicted of a non-homicide crime to life in prison without parole is a “cruel and unusual punishment” in violation of the “evolving standards of decency” test that has been a central part of the Court’s Eighth Amendment jurisprudence since the Court’s 1958 ruling in Trop v. Dulles.  In reaching this conclusion, the Court, in an opinion by Justice Kennedy joined by Justices Stevens, Ginsburg, Breyer, and Sotomayor, had the audacity to observe the “global consensus against the sentencing practice in question.”  As the Court noted, the United States “is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders.”

In light of those observations, Senator Coburn has accused Justice Sotomayor of either being “dishonest with us in the committee, or she doesn’t know what she’s signing onto.”  Apart from the breathtaking disrespect of these charges, Senator Coburn has not only misunderstood Justice Sotomayor’s confirmation testimony, but he apparently has also missed the part of Justice Kennedy’s opinion in Graham in which Justice Kennedy expressly stated that “[t]his observation [about the sentencing practices of other countries] does not control our decision” but rather that it “provide[s] respected and significant confirmation for our own conclusions.” 

Furious with this alleged betrayal by Justice Sotomayor, Senator Coburn has now trained his sights on nominee Kagan, and says that he intends to “press Kagan about her views on international law.”  When he does, we hope that General Kagan takes advantage of this important opportunity to explain to the American people just where conservatives have gone wrong in blasting judges who consider foreign law sources en route to reaching their own opinions.  While it is typically the role of Senators to ask the questions, this is one time the nominee might ask the Senators a question of her own, the question so wisely posed by Justice Ginsburg:  Senator Coburn, “Why shouldn’t we look to the wisdom of the judge from abroad with at least as much ease as we would read a law review article written by a professor?”  

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