14 Jul WSJ Toes the Sovereigntist Line Against Sotomayor
With nothing much else to work with, Collin Levy presses the international law angle on Sotomayor with this op-ed piece in today’s Wall Street Journal.
In a speech to the American Civil Liberties Union of Puerto Rico in April, Judge Sotomayor explained that “ideas have no boundaries,” and that “international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.” To discourage the use of foreign or international law, she added, would “be asking American judges to close their minds to good ideas.”
That’s political quicksand for a judge Democrats are eager to portray as a moderate inclined to narrow reading of text and precedent.
Pretty lame, especially given the full context of her remarks. As Julian has pointed out, there’s reason to believe the contrary — that Sotomayor has taken a measured, conventional approach to the use of foreign and international law. (As I predicted out yesterday, she certainly will take a measured, conventional approach on the subject in the hearings.)
The Levy piece is useful as a thumbnail restatement of the sovereigntist mindset:
[U]sing foreign law as a guidepost or inspiration raises issues of both sovereignty and democracy by permitting jurists outside the U.S. system to guide the trajectory of our democracy. The proper place for the consideration of whatever “good ideas” may be found in foreign law is not the courts but the Congress.
Our system of government has stood the test of time not in spite of but because it is uniquely drawn from the priorities of our own citizens, and them alone. The responsibility of the Supreme Court is neither to win an international beauty pageant, nor to encourage the export of our ideas. It is to extend principles of the Founders and the words of the Constitution into a world that still needs their wisdom.
Republicans know they aren’t going to block Sotomayor’s confirmation, so they must be testing the waters (here and with the fight over Harold Koh) on whether they have an issue that resonates broadly with the electorate. My guess is they don’t.
Thanks for continued updates on this topic, Peter. For those who might be interested, I wrote an Issue Brief for the American Constitution Society in 2007 on the question of the use of foreign and international law sources in constitutional interpretation, available at http://www.acslaw.org/files/Keitner%20ACS%20issue%20brief.pdf
I beg to differ. I think the opinion that Republicans are ‘testing the waters’ is an ivory tower thought. The Republicans are fully aware that they are no going to block the judge’s confirmation.
The principle though that recourse to international law or foreign law is not proper in interpreting the meaning of our Constitution is not incorrect. The U.S. Constitution does not grant rights to the people — it created a framework of government giving the three branches limited powers. It’s creation is informed by the writings of the men who wrote the original document and debated it. The subsequent amendments are informed by the debates over their individual creation and addition.
Whether you agree or not with the idea that the political history of this foundational document controls its meaning and intepretation, though, it is demeaning & insulting to the debate over this issue to dismiss the position taken by the Senate Republicans criticizing Judge Sotomayor as though were polling on yet another issue for the next election.