Dobbs let Whelan falsely claim Sotomayor inconsistent on use of foreign law

››› ››› JEREMY HOLDEN

Lou Dobbs did not challenge the accusation by Ed Whelan that Sonia Sotomayor contradicted herself on the question of whether judges should use foreign law in deciding cases.

On the July 14 edition of his CNN show, Lou Dobbs did not challenge the accusation by Ed Whelan, Ethics and Public Policy Center president, that Supreme Court nominee Sonia Sotomayor contradicted herself on the question of whether judges should use foreign law in deciding cases. Whelan claimed that during Sotomayor's confirmation hearing, Sen. Charles Schumer "got her to claim that she was against the use of foreign international law in construing the Constitution, even though she said exactly the opposite in a speech just a few months ago." Whelan claimed that Sotomayor was "really brazen" and "trying to walk away from" her earlier comments, referring to an April speech that has been misconstrued by conservatives. But Dobbs did not point out that Sotomayor's statement in response to Schumer -- that "American law does not permit the use of foreign law or international law to interpret the Constitution" -- is completely consistent with statements she made during the April speech, that "American analytical principles do not permit us to use that law to decide our cases."

During Sotomayor's July 14 Senate Judiciary Committee testimony, Schumer stated, "Let's go on here a little bit to foreign law, which is an issue that has also been discussed. Your critics have tried to imply that you'll improperly consider foreign law and sources in cases before you. You gave a speech in April that's been selectively quoted. Discussing whether it's permissible to use foreign law or international law to decide cases, you stated clearly that, quote, 'American analytic principles do not permit us' -- that's your quote -- 'to do so.' " He then asked, "Just so the record's a hundred percent clear, what do you believe is the appropriate role of any of foreign law in the U.S. courts?" Sotomayor responded:

SOTOMAYOR: American law does not permit the use of foreign law or international law to interpret the Constitution. That's a given and my speech explained that, as you noted, explicitly. There is no debate on that question. There's no issue about that question.

In her April 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."

From the July 14 edition of CSPAN2's Today in Washington:

SCHUMER: Let's go on here a little bit to foreign law, which is an issue that has also been discussed. Your critics have tried to imply that you'll improperly consider foreign law and sources in cases before you. You gave a speech in April that's been selectively quoted. Discussing whether it's permissible to use foreign law or international law to decide cases, you stated clearly that, quote, "American analytic principles do not permit us" -- that's your quote -- "to do so."

Just so the record's a hundred percent clear, what do you believe is the appropriate role of any of foreign law in the U.S. courts?

SOTOMAYOR: American law does not permit the use of foreign law or international law to interpret the Constitution. That's a given and my speech explained that, as you noted, explicitly. There is no debate on that question. There's no issue about that question.

The question is a different one because there are situations in which American law tells you to look at international or foreign law, and my speech was talking to the audience about that. And in fact I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing. So, for example, if the U.S. is a party to a treaty, and there's a question of what the treaty means, then courts routinely look at how other courts of parties who are signators are interpreting that.

There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that's going to be done in that other country, then American law would say you may have to look at that foreign law to determine the contract issue.

The question of use of foreign law, then, is different than considering the ideas that it may, on an academic level, provide. Judges and -- I -- I'm not using my words; I'm using Justice Ginsburg's words. You build up your story of knowledge as a person, as a judge, as a human being, with everything you read. For judges, that includes law review articles.

SCHUMER: Of course.

SOTOMAYOR: And there are some judges who have opined negatively about that, OK?

You use decisions from other courts. You build up your story of knowledge. It is important -- in that -- in the speech I gave, I noted and agreed with Justices Scalia and Thomas that one has to think about this issue very carefully, because there are so many differences in foreign law from American law. But that was the setting of my speech and the discussion that my speech was addressed to.

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 July 14 edition of CNN's Lou Dobbs Tonight:

DOBBS: Joining me now Ed Whelan, president of the Ethics and Public Policy Center, who says Judge Sotomayor has done a good job of not answering questions. And Nan Aron, who is president of the Alliance for Justice, who says Judge Sotomayor has been surprisingly forthcoming. Well, thank you both for being with us. Let me turn to you first, if I may, Nan. Forthcoming; she has reversed two of her most controversial statements. Did that surprise you?

ARON: Oh, I think she came through with flying colors today. I think she gave very thorough answers to a wide range of questions. She was masterful. And I think in some respects, didn't do what some of her predecessors did -- Alito and Roberts -- which came up with pat phrases; "I have no quarrel with this." They evaded answers, avoided them, saying, "I can't answer because that issue might come up before me." I think in some respects she came up --

DOBBS: Well, she said the same thing today, though.

ARON: Oh, but I think, for instance, in the Ricci case, she could well have said this is a pending litigation, it's going back down to the courts, I really can't answer it. And in fact, I think gave a very extensive response to it.

DOBBS: All right. What do you think, Ed?

WHELAN.: Well, Lou, she was masquerading as a judicial conservative. You had Senate Democrats yesterday criticizing Chief Justice Roberts for his umpire metaphor, but --

DOBBS: I actually remember that vividly.

WHELAN: Yes, she -- Judge Sotomayor took that one step further, saying all she does is apply the law to the facts; that's it, nothing further to be said. But what's striking is she did actually repudiate very forcefully President Obama's empathy standard. That was good to hear.

But then when Senator Kyl walked her through the statements in her record that caused real concern about whether she has that commitment to impartiality, she denied what those statements plainly mean -- statements that were carefully composed, reiterated over a period of years. So I think she has a lot she's trying to walk away from, and she -- one of the most striking passages was when Senator Schumer got her to claim that she was against the use of foreign international law in construing the Constitution, even though she said exactly the opposite in a speech just a few months ago -- really brazen.

DOBBS: Nan, your reaction.

ARON: I'm not sure she really said that. What she did say is that you don't use international law to base your decision. But I would say if you look at her 17 years on the court, at the District Court, the Court of Appeals level, you find a very careful, meticulous, thorough, open-minded judge. And I think today her comments really reflected her decision-making on this.

DOBBS: All right, well what about the -- well, her decision apparently not to answer on the Second Amendment? She did precisely as you were suggesting, as Judge Roberts, saying you know that case may -- that may -- that issue may come before us on the court; I don't want to go too far into it after a rather extensive discussion with Senator Hatch. I mean, it's hard to understand where she stands on the Second Amendment here.

Posted In
Government, Nominations & Appointments, The Judiciary
Network/Outlet
CNN
Person
Lou Dobbs, Ed Whelan
Show/Publication
Lou Dobbs Tonight
Stories/Interests
Supreme Court Nominations, Sotomayor Nomination
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