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Thursday, July 16, 2009

Misunderstanding Judging: Foreign Law

There is blame all around for the utter inanity of these hearings on the issue of the actual work of judging. An exchange Wednesday between Sen. Coburn and Judge Sotomayor on the subject of using foreign and international is a case in point.

At one point, Coburn asked whether anything in the Constitution granted judges permission or power to rely on foreign and international law. Coburn asked the judge to “cite for me the authority either given in your oath or in the Constitution that allows you to utilize laws outside of the country.”

The premise underlying these questions is silly. Of course neither the oath nor the Constitution says anything about utilizing laws outside of the country. But the Constitution also does not say anything about Originalism, Textualism, Living Constitutionalism, social science, canons of construction, precedent, interpretive methodology, history and purpose, or any other of the ordinary methods of judicial analysis. Article III vests the “judicial power” in the Courts of United States; enveloped within that term are all the tools by which judges interpret legal sources and find meaning, including resort to persuasive legal sources. The fact that nothing grants judges permission or power to use foreign law is meaningless, since nothing grants judges permission to look to state law (in federal cases) or to look at law review articles or to look at legislative history or to do anything that will help them interpret and determine applicable law. There is a nice question whether Congress could prohibit courts from relying on foreign or international law (Justice Scalia has emphatically said hell no; I argue the answer is different in constitutional and statutory cases). But absent a ban, judges don’t need permission to do the ordinary work of judging.

When Judge Sotomayor agreed that the Constitution was silent as to foreign and international law (without pointing out that it is silent as to all interpretive methodology), Coburn responded “so you stand by this statement that there is no authority to utilize foreign law in making decisions under the Constitution.”

Sotomayor then said “Foreign law cannot be used as a holding or a precedent or to bind an outcome of a legal decision interpreting the constitution.” Absolutely true. And this is the issue that most of the no-foreign-law politicians miss—no one is talking about being controlled by what French courts or the ICC do as binding authority.

But Coburn then asked her about a speech she made to the ACLU in which she said 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,” and demanded that she reconcile those ideas.

Sotomayor told the committee “What I pointed out in that speech is that there was a public misunderstanding of the word “use” in that discussion. What judges do is educate themselves, they build up a store of knowledge that one might consider. That’s just thinking.” And the key portion of her ACLU was as follows:

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 some good ideas. …. Ideas are ideas. 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, then you’re going to adopt its reasoning. If it doesn’t fit, then you won’t use it.

And here is where, from the standpoint of wanting this hearing to be a somehow meaningful, or at least coherent, discussion of law and the judicial process, her answer falls flat. She insists that what she described in her speech does not constitute “using” foreign law, that looking to foreign law and other sources for ideas is not using it to make decisions under the Constitution.

Of course it is. Judges are using these “ideas” to figure out what some ambiguous legal concept (“due process,” “equal protection,” “cruel and unusual punishment,” “the freedom of speech”) means—to figure out what the law is—so they can apply that law to a set of facts. This is the essence of judging—interpreting vague or ambiguous text by resort to a range of sources and ideas and using those ideas to reach a conclusion as to legal meaning that can be applied in this and future cases. Foreign and international law is one source of ideas to use in that process; legal scholarship, social science, and the canons of constructions are other sources to use in that process. But the notion that this is not legal "use" is nonsense.

At some level, this is another example of what has been going on all week: The Republican/conservative minority (on the committee and talking in the press) has defined the boundaries of appropriate judicial behavior—here, that utilizing foreign and international law is inappropriate. And Judge Sotomayor answered the question by accepting and agreeing to that premise (“utilizing” international law is verboten), rather than pushing back on it and being able to define and explain what goes into judging, including resort to all sorts of persuasive sources. We teach first-year law students about the differences between binding and persuasive authority as a key concept of horizontal stare decisis, but no one ever suggests that persuasive precedent is not precedent that is being used in the legal analysis.

On the other hand, I understand why she gave this answer. And as a rhetorical move, it was brilliant. By defining “use” (or “utilize,” as Coburn said) narrowly to mean only having foreign law dictate the outcome as binding authority (which no one believes is proper outside of treaty cases), she left herself perfectly free to cite foreign and international law as persuasive authority for her next 20-30 years on the Supreme Court, without being in any way inconsistent with her committee testimony. This, of course, once again shows why the intellectual battle between nominee (this nominee and pretty much anyone put up for the High Court) and almost all committee members is such a mismatch.

I just wish we could have a meaningful discussion rather than a politically charged battle of wits.

[Cross-Posted at ACSBlog, where I am guesting during the hearings]

Posted by Howard Wasserman on July 16, 2009 at 04:20 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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"The judicial power shall extend to all cases in law and equity arising udner . . . treaties made, or which shall be made . . . to all cases affecting ambassadors, other public ministers and counsels; to admiralty and maritime jurisdiction, . . . to controversies between . . . a state or citizens thereof and foreign states, citizens, or subjects."

-- Article III, Section 2, Clause 1 (in part).

At the time that the constitution was adopted, admiralty and martime law was an international common law. Treaties routinely, indeed almost universally, call for signatory states to interpret them harmoniously, and suits involving foreign states or their official representatives (a part of the U.S. Supreme Court's constitutional original jurisdiction) a singled out precisely because they involve international law that may be intepreted by many countries.

A fair reading of Article III is that the international law cases were singled out for special treatment placing them under federal and sometimes exclusive U.S. Supreme Court jurisdiction precisely because only that subset of justices can be trusted to know the larger canon of international law that applies to these cases.

Indeed, the original jurisdiction over ambassador cases clause in Article III, like the 11th Amendment federal court jurisdiction over cases involving states provision both presume underlying sovereign immunity doctrines that arose from foreign law.

The positive law notion that laws come solely from legislatures and perhaps domestic judges acting autonomously was also not the prevailing legal theory at the time the constitution was adopted. The Founders expressly referenced natural law in some of this nation's formative documents, and courts including the U.S. Supreme Court took the position that the common law was a form of natural law that was discovered, rather than invented by judges (hence validating free borrowing of its from foreign court rulings) until many decades after the constitution was adopted.

Posted by: ohwilleke | Jul 17, 2009 7:39:37 PM

Wow. This is the first time anyone has said something I wrote bore reminders to something by Schauer. But, hey, it gas been an unusual week, so I appreciate the compliment.

Posted by: Howard wassernan | Jul 16, 2009 8:22:18 PM

This is a fantastic post! It reminds me of Fred Schauer's interesting article Authority and Authorities, 94 VA. L. REV. 1931 (2008), which I highly recommend to anyone who is interesting in the way courts use sources in decisionmaking.

Posted by: carissa | Jul 16, 2009 4:32:19 PM

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