During the November 20 broadcast of his Newsradio 850 KOA show, host Mike Rosen mischaracterized the comments of former Supreme Court Justice Sandra Day O'Connor by again reading from a November 4 Wall Street Journal letter (subscription only) to the editor from former federal appeals court Judge Charles W. Pickering Sr. In the letter, Pickering asserted that O'Connor once said that the United States “will rely increasingly on international and foreign law in resolving what now appear to be domestic issues” -- a claim that Rosen repeated. However, according to an October 29, 2003, article in The Atlanta Journal-Constitution, O'Connor actually said, “I suspect ... that over time” the United States “will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues.”

In quoting O'Connor, Pickering was presumably referring to an appearance she made before the Southern Center for International Studies (SCIS) in 2003, while still sitting on the Supreme Court. According to the Journal-Constitution:

The U.S. judiciary should pay more attention to international court decisions to help enrich our nation's standing abroad, U.S. Supreme Court Justice Sandra Day O'Connor said Tuesday.

“The impressions we create in this world are important and they can leave their mark,” O'Connor said.

On the whole, the U.S. judicial system leaves a favorable impression around the world, she said “but when it comes to the impression created by the treatment of foreign and international law and the United States court, the jury is still out.”

The 73-year-old justice, considered by many to be the most influential member of the nation's highest court, made her remarks to a dinner sponsored by the Southern Center for International Studies.

Reporting on the same SCIS speech, the Journal-Constitution also noted that O'Connor said, “I suspect ... that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues.” O'Connor added that doing so “may not only enrich our own country's decisions, I think it may create that all important good impression.”

In contrast to O'Connor's actual statement, Pickering's letter in The Wall Street Journal distorted O'Connor's remarks by replacing the word “examining” with “resolving,” thereby changing the nature of her statement. According to Pickering:

Justice O'Connor on another occasion posited that “we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues”; she called reliance on foreign law "'transjudicialism'" and proclaimed that reliance on foreign law “will create that all-important good impression” (again a policy, not a judicial, consideration).

On his show, Rosen repeated Pickering's misleading quote.

From the November 20 broadcast of Newsradio 850 KOA's The Mike Rosen Show:

ROSEN: When I, when I hear Justice O'Connor -- and this was a reference that Judge Pickering made in that piece I mentioned from The Wall Street Journal -- he said, and he's quoting now from Justice O'Connor, quote, “We will rely increasingly on international and foreign law in resolving what now appear to be domestic issues.” She called reliance on foreign law “transjudicialism” and proclaimed that reliance on foreign law “will create that all-important good impression” -- I guess on our, our friends and neighbors overseas. I think that's a classic example of judicial activism; I don't think foreign law is in any way, shape, or form material in a Supreme Court decision.

Furthermore, while the Journal-Constitution did quote O'Connor as saying that “tak[ing] notice” of “foreign courts ... may create that all important good impression,” a Nexis search* shows no indication that O'Connor used the term “transjudicialism” in delivering her SCIS remarks. O'Connor was, however, quoted as follows during her 2002 Keynote address before the American Society of International Law:

Although international law and the law of other nations are rarely binding upon our decisions in U.S. courts, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts. This is sometimes called “transjudicialism.”

As Colorado Media Matters noted, on November 16, Rosen repeated a false assertion Pickering made in the same letter that Alliance for Justice President Nan Aron said it was necessary to “look to the courts to create new rights that we won't be able to get from the legislature.” In fact, Aron stated that the quote Pickering attributed to her “actually came from conservative lawyer C. Boyden Gray, who was similarly distorting the meaning of my words to score political points."

*A Colorado Media Matters Nexis search of all major news outlets for articles containing the terms “O'Connor” and “transjudicialism,” between October 28, 2003, and November 28, 2003, returned no results.