In a July 28 Washington Times column, Frank Gaffney cropped comments Supreme Court nominee Sonia Sotomayor made in an April speech to the Puerto Rico chapter of the American Civil Liberties Union to support his false claim that Sotomayor displayed a “lack of candor before the Judiciary Committee” on the issue of the use of foreign law in American courts. In fact, Sotomayor's comments during her confirmation hearings, quoted by Gaffney, are consistent with comments in the April speech that were not included in Gaffney's column -- that “American analytical principles do not permit us to use that law to decide our cases.”

Gaffney claimed:

As Sen. Coburn points out, before her nomination, Judge Sotomayor declared: “I share more the ideas of Justice Ginsburg ... 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. Justice Ginsburg has explained very recently ... that foreign opinions ... can add to the story of knowledge relevant to the solution of a question, and she's right.”

The judge also said that “international law and foreign law will be very important in the discussion of how we think about the unsettled issues in our own legal system. It is my hope that judges everywhere will continue to do this because ... 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.” This hews basically to the standard transnationalist line.

Gaffney then asserted that “In the course of her nomination hearing, though, Judge Sotomayor espoused a very different attitude under cross-examination by Sen. Coburn” and quoted Sotomayor saying during the hearing:

Judge Sotomayor: “I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws, except in the situations where American law directs a court.”

[...]

Judge Sotomayor: “Unless the statute requires you or directs you to look at foreign law. And some do, by the way. The answer is no. Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.”

In fact, in her speech, while stating that U.S. courts should be “more open to discussing the ideas raised by foreign cases” [emphasis added], Sotomayor explicitly stated that she explains to people that U.S. courts " '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."

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 Gaffney's July 28 Washington Times column:

Judge Sonya [sic: Sonia] Sotomayor may have provided one of the exceptions. In particular, the totality of what is known about her views concerning the role of foreign law in American courts suggests both a lack of candor before the Judiciary Committee and a judicial philosophy that is at odds with the Constitution of the United States. These issues should feature prominently as that panel meets Tuesday to vote on her nomination.

[...]

As Sen. Coburn points out, before her nomination, Judge Sotomayor declared: “I share more the ideas of Justice Ginsburg ... 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. Justice Ginsburg has explained very recently ... that foreign opinions ... can add to the story of knowledge relevant to the solution of a question, and she's right.”

The judge also said that “international law and foreign law will be very important in the discussion of how we think about the unsettled issues in our own legal system. It is my hope that judges everywhere will continue to do this because ... 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.” This hews basically to the standard transnationalist line.

In the course of her nomination hearing, though, Judge Sotomayor espoused a very different attitude under cross-examination by Sen. Coburn:

Sen. Coburn:"[W]ill you affirm to this Committee and the American public that, outside of where you are directed to do so through statute or through treaty, [you will] refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write?"

Judge Sotomayor: “I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws, except in the situations where American law directs a court.”

Sen. Coburn: “So ... there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?”

Judge Sotomayor: “Unless the statute requires you or directs you to look at foreign law. And some do, by the way. The answer is no. Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.”

That sounds pretty definitive and reassuring. Yet, as Sen. Coburn's release makes plain, in response to questions submitted by senators for the record, Judge Sotomayor subsequently reasserted the idea that foreign law can be “used” by American judges. To be sure, in so doing, she offered a number of caveats: “In some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas.” The judge goes on to claim that “reading the decision of foreign courts for ideas, however, does not constitute 'using' those decisions to decide cases.”

It is instructive that Judge Sotomayor felt compelled to add that, “To the extent that American courts categorically refuse to consider the ideas expressed in the decision of foreign courts, it may be that foreign courts will be less likely to look to American law as a source of ideas.”

Senators swear an oath to “support and defend the Constitution.” As they vote to confer a lifetime appointment to the Supreme Court on Judge Sonya Sotomayor, Sen. Coburn's colleagues must square that pledge with his conclusion: “Judge Sotomayor's written responses confirm many Americans' worst fears that she views the U.S. Constitution, which is the basis of our rule of law, as an insufficient basis for deciding cases and would instead allow the broader arena of international commentary to influence her decisions.”