Correcting The Record
Judge Sotomayor Does Not Use Foreign Law to Interpret the U.S. Constitution and Laws
RHETORIC: Today, Senator Coburn suggested that Judge Sotomayor might consider foreign law and world opinion in interpreting the Constitution and U.S. law when deciding cases.
JUDGE SOTOMAYOR said yesterday: “American law does not permit the use of foreign law or international law to interpret the constitution. That’s a given, and my speech explained that, as you noted, explicitly. There is no debate on that question. … In fact, I know that in my 17 years on the bench, other than applying it in treaty interpretation or conflicts of law situations, I’ve not cited to foreign law.”
Judge Sotomayor’s 17-year judicial record makes clear that she does not consider foreign law or world opinion in interpreting the U.S. constitution and laws.
REALITY: Judge Sotomayor has written or joined more than 3,000 opinions in her 17 years as a judge, and she has never used foreign law to interpret the U.S. Constitution or statutes. The only circumstances where she has even cited foreign or international law have been cases about international contracts or treaties. No one disputes that considering foreign or international law in those cases is appropriate.
REALITY: Judge Sotomayor has refused to allow foreign governments to use U.S. courts to enforce their laws. In European Community v. RJR Nabisco, Judge Sotomayor rejected an attempt by the European Community countries, and others, to enforce their tax laws against U.S. companies.
Judge Sotomayor’s speeches and writings confirm that she has mainstream views on foreign law.
REALITY: In her speech to the ACLU on international law in April 2009, Judge Sotomayor expressly stated that “we don’t use foreign or international law” to interpret the Constitution or U.S. law. She quoted Justice Ginsburg stating that “foreign opinions are not authoritative, they set no binding precedent.” She also credited the views of Justices Scalia and Thomas that foreign law is subject to misuse, saying their point was “validly taken.”
REALITY: In her forward to the book “The International Judge,” Judge Sotomayor does not suggest that foreign law should be used to interpret U.S. law. The book concerns only how international judges interpret their own laws, not U.S. law.
Judge Sotomayor’s dissent in Croll v. Croll is based on a traditional interpretation of a U.S. Treaty.
REALITY: Critics have pointed to Judge Sotomayor’s dissent in Croll v. Croll, a child custody case involving the interpretation of an international treaty, to suggest she inappropriately relies on foreign law. But that case required the court to interpret international law, so it was entirely proper to discuss foreign law interpretations of the treaty at issue.
REALITY: Judge Sotomayor made it clear that her discussion of foreign law was “not essential to my conclusion,” and she based her decision on the traditional canons of statutory interpretation that review “the text, object, and purpose” of a treaty. Chief Judge Jacobs, a Republican-appointed judge who wrote the majority decision, followed the same analysis and engaged in an extensive discussion of foreign law cases.
REALITY: The Constitution makes clear that federal courts have an obligation to hear disputes related to international treaties, and the Supreme Court has long recognized that interpretations of treaties by foreign courts are “entitled to considerable weight” in such cases, as Justice O’Connor wrote. Air France v. Saks, 470 U.S. 392, 404 (1985).