NY Times uncritically reports Sessions' misrepresentation of Sotomayor's foreign law speech

››› ››› JEREMY HOLDEN

The New York Times uncritically reported Sen. Jeff Sessions' comments on a speech by Sonia Sotomayor on the relevance of foreign law to U.S. judges, but the Times did not note that Sessions distorted Sotomayor's statements.

A June 26 New York Times article uncritically reported Sen. Jeff Sessions' (R-AL) comments on Supreme Court nominee Sonia Sotomayor's April speech on the relevance of foreign law to U.S. judges. But the Times did not note that Sessions was distorting Sotomayor's statements. The Times reported that Sessions stated in a Senate floor statement: "To submit ourselves to their political policies while pretending we are merging our law with theirs is just plain foolishness," and that, "The question is, Who does the judge serve? The people of the United States or the people of the world or some individual country with whom they agree?" The Times added: "Mr. Sessions quoted a speech that Judge Sotomayor gave to the Puerto Rico chapter of the American Civil Liberties Union in April, shortly after being contacted by the White House about the vacancy on the Supreme Court." In fact, Sotomayor did not advocate "submit[ing] ourselves" to foreign law or "merging our law" with foreign law in the speech Sessions cited. While Sotomayor advocated in favor of U.S. judges considering ideas from foreign law in the speech, she also specifically said: "American analytical principles do not permit us to use that law to decide our cases."

In the speech, Sotomayor stated, "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.' " She went on to state, "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." Instead, Sotmayor advocated judges using the underlying ideas within the analytic framework of the American legal system, stating, "All of this said it is not to suggest, however, that we don't use the ideas of foreign courts in some of our decision-making." She concluded:

It is my hope that judges everywhere will continue to do this, because I personally believe that it is part of our obligation to think about things not outside of the American legal system, but within the American legal system we're commanded to interpret our law in the best way we can, and that means looking to what other -- anyone has said, to see if it has persuasive value.

From Sotomayor's April speech to the Puerto Rico chapter of the American Civil Liberties Union:

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.

[...]

So you end up with treaties, most of the time, even though under Article IV of the Constitution it says that treaties are the supreme law of the land, in most instances they're not even law. In others, they become law, and there is an American judicial principle that says: Even if a treaty is self-executing; even if Congress gave you a right under the treaty, the Congress the next year can take that right away. And if a later Congress says, "I don't like that treaty," and they change the law, the treaty is dead law.

And so, as I hope you're understanding, the use of foreign and international law in the American judicial system holds very limited formal force. The force comes only when there is goodwill on the part of the president and on Congress in respecting the obligations under those treaties and commitments.

[...]

All of this said it is not to suggest, however, that we don't use the ideas of foreign courts in some of our decision-making. Very recently in New York, for example, the Court of Appeals of New York looked to foreign law to decide how to interpret the contract rights under the Uniform -- under the treaty for contracts. Similarly, California has used it in other contexts. So have American courts.

But this use does have a great deal of criticism. The nature of the criticism comes from, as I explained, the misunderstanding of the American use of that con -- of that concept of using foreign law. And that misunderstanding is unfortunately endorsed by some of our own Supreme Court justices. Both Justice Scalia and Justice Thomas have written extensively, criticizing the use of foreign and international law to -- in Supreme Court decisions.

They have a somewhat valid point. They argue that because there are so many international and foreign laws, and so many of them vary that a judge can look to the law of any country to support his or her own conclusion because they'll find somebody who will agree with them. So it's easy to say, "This is a good idea because England likes it," forgetting to mention that Russia doesn't, that Russian law doesn't, or vice versa.

It is a point that is validly taken, but I think I share more the ideas of Justice Ginsburg in thinking -- or 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.

[...]

To the extent that we as a country remain committed to the concept that we have freedom of speech, we must have freedom of ideas, and to the extent that we have freedom of ideas, 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. It is my hope that judges everywhere will continue to do this, because I personally believe that it is part of our obligation to think about things not outside of the American legal system, but within the American legal system we're commanded to interpret our law in the best way we can, and that means looking to what other -- anyone has said, to see if it has persuasive value.

From the June 26 New York Times article:

Senator Jeff Sessions of Alabama, the senior Republican on the Judiciary Committee, sharply criticized Judge Sonia Sotomayor on Thursday, accusing her of relying too heavily on international law in her opinions, which he said raised doubts in his mind about how she would interpret the Constitution as a member of the Supreme Court.

"What, if any, is the appropriate role for foreign law to play in the interpretation of our Constitution?" Mr. Sessions asked in a speech on the Senate floor. "It's a question that has the potential to impact our fundamental rights."

"The novel idea that foreign law has a place in the interpretation of American law creates numerous dangers and a number of academics and even federal judges are, I would say, seduced by this idea," he said. "Judge Sotomayor clearly shares in that."

The debate over the role of international law in American jurisprudence is not all that new, but it has been a point of disagreement among current justices on the Supreme Court.

Justice Anthony Kennedy, who was appointed by President Ronald Reagan and is often the swing vote these days, supports the consideration of foreign and international law in the interpretation of the Constitution - a view shared by more liberal justices including Ruth Bader Ginsburg and Stephen G. Breyer.

More conservative justices disagree and Antonin Scalia and Clarence Thomas, in particular, have spoken out in opposition.

Since its earliest days, the Supreme Court has occasionally looked to foreign law, particularly in commercial disputes. Since the late 1990s, more liberal judges have also looked to foreign law for guidance on questions of individual rights.

Mr. Sessions, who will lead the Republican questioning of Judge Sotomayor at her confirmation hearings next month, said that he opposed any reliance on foreign law in American courts and that judges should look strictly at the Constitution and at laws passed by Congress.

"To submit ourselves to their political policies while pretending we are merging our law with theirs is just plain foolishness," he said. "It also creates confusion on a matter of utmost importance. The question is, Who does the judge serve? The people of the United States or the people of the world or some individual country with whom they agree?"

Mr. Sessions quoted a speech that Judge Sotomayor gave to the Puerto Rico chapter of the American Civil Liberties Union in April, shortly after being contacted by the White House about the vacancy on the Supreme Court.

"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," he quoted her as saying. "What you would be asking American judges to do is close their minds to good ideas."

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