It took four months to confirm Harold Hongju Koh as the State Department’s legal adviser, largely because he believed in the relevance of foreign and international law.
By the end of the second full day of questioning Supreme Court nominee Sonia Sotomayor on Wednesday, it was clear that similar issues are troubling Republicans about her confirmation as well. And in her case, it’s a lifetime appointment that’s at stake. In sharp questioning, critics accused her of flip-flopping on the issue, stating in earlier speeches that foreign law should influence judges’ reading of the U.S. Constitution, and then testifying at the hearing that only U.S. law controls cases in U.S. courts.
The fear among Republicans, as Sen. John Cornyn (R-TX) put it, is that on the Supreme Court, Sotomayor will be untethered from the constraints that have, until now, controlled her opinions on the court of appeals. “You will be free as a U.S. Supreme Court justice with no court reviewing those decisions,” said Cornyn.
Sen. Tom Coburn (R-Ok) was among those who pressed Sotomayor hardest about her views on foreign law at the hearing yesterday. He quoted passages from a speech she gave to the ACLU in Puerto Rico in April in which she said: “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 some good ideas.”
Coburn was very concerned, he said. “Can you cite for me the authority either given in your oath or in the Constitution that allows you to utilize laws outside of the country?”
“My view is that there is none,” said Sotomayor.
“So today do you stand by this statement that there is no authority to utilize foreign law in making decisions under the constitution?” he asked.
“Foreign law cannot be used as a holding or a precedent or to bind an outcome of a legal decision interpreting the constitution,” Sotomayor repeated.
Coburn persisted, reminding Sotomayor that she’d told the ACLU that “to suggest that you can outlaw the use of foreign law is based on a fundamental misunderstanding, and is “asking judges to close mind to ideas.” How could she reconcile those positions?
Read the rest at The Washington Independent, The Colorado Independent’s sister site in D.C.
