Sotomayor Backtracks on Her Backtrack

Conservative activists are not paying attention to Judge Sotomayor’s written follow up to her testimony before the Senate Judiciary Committee. During committee, she backpedaled on the use of international law in decision making. Having done a 180, she is now circling back for a full 360 degree turn to her original position.

This troubling flip-flop should give Republican Senators grounds to vote no. Justice Ruth Bader Ginsburg has, in the past, stated that foreign law helps us know “whether our understanding of our own constitutional rights [falls] into the mainstream of human thinking.” Judge Sotomayor, prior to her Senate confirmation hearing, was on record agreeing with that statement.

According to Senate Republicans on the Judiciary Committee, Judge Sotomayor has on multiple occasions said she approved of federal courts relying on foreign laws in determining how to interpret the United States Constitution. During her testimony before the Senate, Senator Tom Coburn (R-Okla.) asked Judge Sotomayor about that. Her response? “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 the court.”

That was a full reversal from her previous often-stated position on using foreign law. Her testimony also gave many Republicans comfort that she had locked down her record as one who would not use foreign law. The importance of that statement needs to be appreciated. Putting it in the record means that Republicans have a baseline to vote against judges to the left of Sotomayor on the use of foreign law.

Unfortunately, no one is paying attention to the written follow ups on that testimony. Judge Sotomayor has now, in effect, totally recanted her original testimony. Republican Senators need to pay attention. In the written follow-ups, Senate Republicans asked Sotomayor:

a. What did you mean by the word “use”? Did you mean that you would not consider foreign law at all in interpreting the Constitution or statutes, or merely that you would not cite foreign law as the basis for your legal conclusions? b. Would foreign laws regarding gun ownership be relevant to you in your efforts as a judge to interpret the Second Amendment? c. If foreign laws are not relevant, how do you distinguish when it is appropriate to use foreign law to assist in the interpretation of the Constitution and when it is not? Isn’t foreign law then simply a vehicle by which judges indulge their own policy preferences? d. If foreign laws are relevant, are the Fifth, Eighth, and Fourteenth Amendments the only places in your mind where foreign law is relevant in interpreting the Constitution?

Sotomayor’s response should send cold chills down the backs of gun activists and senators. She wrote back:

In my view, American courts should not “use” foreign law, in the sense of relying on decisions of foreign courts as binding or controlling precedent, except when American law requires a court to do so. 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. Reading the decisions of foreign courts for ideas, however, does not constitute “using” those decisions to decide cases.

What she is saying now is that she does, despite her Senate testimony, agree with Justice Ginsburg. Note her caveat now. She will not rely on “decisions of foreign courts as binding or controlling precedent.” That is not what was asked.

She was asked about relying on foreign laws in determining how to interpret the United States Constitution.

She said in her oral answers under oath, “I will not use foreign law to interpret the Constitution or American statutes.”

Her written answer totally contradicts this. Now she uses the phrase “use foreign law” to mean applying foreign laws as binding precedent. No one asked her that. They asked her if she would use foreign law how to interpret American law. Her answer in the hearings was “no” and her answer now is “yes.”

Senate Republicans are not going to defeat Judge Sotomayor. They will, however, establish a baseline of what is an acceptable nominee from Barack Obama. By voting for Judge Sotomayor, Republicans establish as the baseline that it is perfectly acceptable for nominees to say one thing in hearings, then refute their entire public testimony with written follow up answers.

Republicans are also establishing as a baseline that nominees for the Supreme Court are perfectly allowed to use foreign law to interpret the United States Constitution. That is a dangerous baseline.