CNN's Sylvester falsely suggested Sotomayor was inconsistent on use of foreign law

››› ››› JEREMY HOLDEN

Lisa Sylvester advanced the falsehood that Sonia Sotomayor contradicted herself on the question of whether judges should use foreign law in deciding cases.

During the July 17 edition of CNN's Lou Dobbs Tonight, correspondent Lisa Sylvester advanced the falsehood that Supreme Court nominee Sonia Sotomayor contradicted herself on the question of whether judges should use foreign law in deciding cases. In her report, Sylvester noted that Sen. John Cornyn (R-TX) had asked Sotomayor about her comments in an April speech that "[i]nternational law and foreign law will be very important in our discussion of how to think about unsettled issues in our legal system. It is my hope that judges everywhere will continue to do this." Sylvester then suggested that Sotomayor had contradicted that statement during her confirmation hearings when she said, "I do not believe that foreign law should be used to -- to determine the results under constitutional law or American law, except where American law directs." In fact, that statement is consistent with comments in the April speech that were not included in Sylvester's report -- that "American analytical principles do not permit us to use that law to decide our cases."

After stating that "Senator John Cornyn [said] that in her previous speeches, [Sotomayor] has one message; in her confirmation hearing, another," Sylvester asserted, "On another issue, over what role foreign law should play in U.S. courts, Senator Cornyn quoted Sotomayor from three months ago, when she said, quote, 'International law and foreign law will be very important in our discussion of how to think about unsettled issues in our legal system. It is my hope that judges everywhere will continue to do this.' " Sylvester then stated, "But in the hearing," and played a clip of Sotomayor saying, "I do not believe that foreign law should be used to -- to determine the results under constitutional law or American law, except where American law directs." Sylvester then aired a clip of the Heritage Foundation's Robert Alt saying that Sotomayor "seemed willing to reject statements that she had made time and time again in these hearings, and ... one wonders ... where the truth lies."

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." Indeed, Sotomayor had qualified the remarks from the speech that Sylvester did quote as limited to "freedom of ideas": "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" (italics added).

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 17 edition of CNN's Lou Dobbs Tonight:

SYLVESTER: Senators tried to pin down Judge Sonia Sotomayor -- Senator John Cornyn saying that in her previous speeches, she has one message; in her confirmation hearing, another.

CORNYN [video clip]: In 1996 you said the idea of a stable, quote, "capital L" law was a public myth. This week you said that fidelity to the law is your only concern.

SYLVESTER: On issues of race and discrimination, senators repeatedly brought up what Judge Sotomayor famously said: that she hoped that a wise Latina woman, with her experiences, would more often than not reach a better conclusion than a white male. But in her hearing, this:

SOTOMAYOR [video clip]: My record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case.

SYLVESTER: On another issue, over what role foreign law should play in U.S. courts, Senator Cornyn quoted Sotomayor from three months ago, when she said, quote, "International law and foreign law will be very important in our discussion of how to think about unsettled issues in our legal system. It is my hope that judges everywhere will continue to do this."

But in the hearing:

SOTOMAYOR [video clip]: I do not believe that foreign law should be used to -- to determine the results under constitutional law or American law, except where American law directs.

SYLVESTER: Robert Alt is with the conservative Heritage Foundation.

ALT [video clip]: She seemed willing to reject statements that she had made time and time again in these hearings, and, you know, one wonders, you know, where the truth lies.

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