Sotomayor, International Law, Context, and the Confirmation Hearings Charade

by Gregory Gordon

Considering Sonia Sotomayor’s testimony last week from an international law perspective, much seems to have been made about her April speech to the Puerto Rican Chapter of the ACLU. In that speech, she did opine 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.” She added that to frown on the use of foreign or international law would “be asking American judges to close their minds to good ideas.” Conservative pundits have seized on these bits of text to ascribe to Sotomayor an expansive view of international law in constitutional interpretation. But as pointed out here by (in exposing mischaracterizations by CNN’s Lisa Sylvester on Lou Dobbs Tonight), the relevant portions of that speech have been taken out of context. I join in finding it instructive to consider what else she said in that speech:

I always find it strange when people ask me, “How do Americans’ courts use foreign and international decisions — law in making their decisions?” And I pause and say, “We don’t use foreign or international law. We consider the ideas that are suggested by international and foreign law.” That’s a very different concept, and it’s a concept that is misunderstood by many. And it’s what creates the controversy that surround — in America, especially — that surrounds the question of whether American judges should listen to foreign or international law. And I always stop and say, “How can you ask a person to close their ears?” Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think, and to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas — to some good ideas. There are some ideas we may disagree with for any number of reasons, but ideas are ideas, and whatever their source — whether they come from foreign law, or international law, or a trial judge in Alabama, or a circuit court in California, or any other place — if the idea has validity, if it persuades you — si te comprense — then you are going to adopt its reasoning. If it doesn’t fit, then you won’t use it, and that’s really the message that I want you to leave with here today. I’m going to try first to understand the way that American law is structured against the use of foreign and international law, because American analytical principles do not permit us to use that law to decide our cases. But nothing in the American legal system stops us from considering the ideas that that law can give us.

While I think it safe to say that Judge Sotomayor would not counsel the American judiciary to stick its collective head in the sand of domestic law, the text just quoted is hardly the stuff of legal revolution or constitutional subversion. I realize that Judge Sotomayor has spoken elsewhere about international law (especially in her forward to the 2007 book “The International Judge”) and that certain passages may seem more charitable in their take on international sources than others. But on the whole, I think Sotomayor had struck a thoughtful balance between fidelity to the Constitution and receptivity to the organic growth of legal thought. Quite simply, one aspect of our becoming a global village is that all legal systems (including the American one) are increasingly connected to all the other legal systems. This is a reality no matter how much Justice Scalia might close his eyes, plug his ears, pinch his nose, and scream that he wishes it were not so. Although Judge Sotomayor may have hedged her language, her testimony last week largely acknowledged this reality and was mostly of a piece with her previous position.

To the extent her hedging smacks of political obfuscation, as some have charged, we might do well to reflect on the charade that Supreme Court confirmation hearings have become. Partisan bickering certainly has something to do with it. But I submit these hearings are premised on a misleading and dangerous conceit: that judges are akin to autonomous robots who mechanistically and abstractly apply inbred, dry legal principles to meticulously pruned fact patterns. To the contrary, good judging is an intensely human and dynamic experience. American Justice Oliver Wendell Holmes spoke of this eloquently last century and Judge Richard Posner has done so in this one.

And, on a macro level, good judging requires growth of the entire judicial collective conscience. Being aware of what is going on in the wider world is certainly an integral part of that. And it is, I dare say, essential for the effective delivery of justice in modern times. It will certainly go a long way, in any event, toward allowing us to reassert our leadership on the world stage. In that regard, I am heartened by Judge Sotomayor’s approving citation to Justice Ginsberg that “unless American courts are more open to discussing the ideas raised by foreign cases and by international cases, [we] are going to lose influence in the world.” Here’s hoping that Judge Sotomayor’s imminent elevation to the highest court in the land will help stem that recent ugly tide.

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