Wednesday, June 9 2010
Mr. COBURN. Mr. President, I send to the desk to have printed in the Record a letter I sent to Justice Sonia Sotomayor dated the day before yesterday. The reason for that concern is our Supreme Court process has broken down.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
COMMITTTEE ON THE JUDICIARY,
Washington, DC, June 8, 2010.
Justice SONIA SOTOMAYOR,
Supreme Court of the United States,
DEAR JUSTICE SOTOMAYOR: I write to inquire about your decision to join Justice Anthony Kennedy's opinion in the case of Graham v. Florida, No. 08-1224. In that case, a 5-4 majority of the Court ruled that sentencing a juvenile offender to life in prison without parole for a nonhomicide crime is unconstitutional.
In Justice Kennedy's opinion, he employs a methodology similar to that used in Roper v. Simmons. In Roper and Graham, the majority relies on what five Justices perceive to be ``evolving standards of decency'' in concluding that the punishment in question violates the Eighth Amendment's ban on cruel and unusual punishment. In arriving at this conclusion, Justice Kennedy looked to both the sentencing practices of the states and the federal government and to the ``judgments of other nations.'' Justice Kennedy's opinion in Graham, which you joined, states, ``[the] global consensus against the sentencing practice in question'' provides ``support for our conclusion'' that the punishment is unconstitutional. He further writes, the ``judgments of other nations and the international community'' and the ``climate of international opinion'' are ``not irrelevant'' to determining the ``acceptability of a particular punishment.'' Specifically, the opinion notes, ` ``the overwhelming weight of international opinion against' life without parole for nonhomicide offenses committed by juveniles `provide[s] respected and significant confirmation for our own conclusion' '' that it violates the Eighth Amendment.
Given your testimony at your confirmation hearing, I have serious concerns about your decision to join Justice Kennedy's opinion, which extensively cites foreign law, At your hearing. I asked you the following question: ``[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, refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write?'' You responded: ``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.'' I sought further clarification and asked: ``So you stand by it? There is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?'' You responded: ``Unless the statute requires you or directs you to look at foreign law ..... the answer is no.''
Your decision to join Justice Kennedy's opinion that uses foreign law to ``support'' its conclusion conflicts with your pledge to the Judiciary Committee and the American public not to ``use foreign law to interpret the Constitution.'' In light of that conflict. I respectfully request that you explain why you chose to join the majority's opinion in Graham. I recognize that Justice Kennedy's opinion does not rely on foreign law as precedent for its decision; however, if foreign law is of no value to the reasoning of the opinion and did not influence the final outcome, then please explain why you supported its inclusion in the opinion. These questions are particularly relevant as the Senate is faced with evaluating another Supreme Court nominee in the coming months. Accordingly, I would appreciate a prompt response.
Tom Coburn, M.D.,
Mr. COBURN. I want to read you some quotes of the Justice, and then I want to read you the answers she gave to my queries during her hearing on the Judiciary Committee. I think it is going to be plain to see that we have to change what we are doing on Supreme Court nominees.
Previous quotes from Judge Sotomayor on foreign law; the use of foreign law to interpret the U.S. Constitution, which is forbidden under the Constitution, except in those international treaties where it is so directed under statute and treaty.
Statement of Judge Sotomayor:
To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding. What you would be asking American judges is to close their minds to good ideas. Nothing in the American legal system prevents us from considering the ideas.
That is true.
The international law and foreign law will be very important in the discussion of how we think about unsettled issues in our own legal system. It is my hope that judges everywhere will continue to do this. Within the American legal system, we are commanded to interpret our law in the best way we can. That means looking to what anyone has said to see if it has pervasive value.
Well, that is wrong. The Constitution defines what judges look at in considering their decisions. So I asked her the following questions during her confirmation hearing before the Judiciary Committee:
[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, refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write? [or concur with.]
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 situations where American law directs a court [to do otherwise.]
So you stand by it?
These are my words.
There is no authority for a Supreme Court Justice to utilize foreign law in terms of making decisions based on the Constitution or our statutes?
Here is her response.
Unless the statute requires you or directs you to look at foreign law, the answer is no.
So her statements before she comes before the committee are totally opposite of what she tells the committee, and then what she has done since proves that her testimony before the committee was totally meaningless.
On May 17, Justice Sotomayor joined an opinion citing the ``judgments of other nations'' when interpreting the eighth amendment to prohibit sentencing of a juvenile offender. The opinion states the following:
[The] global consensus against the sentencing practice in question provides support for our conclusion.
Well, either she was dishonest with us in the committee or she does not know what she is signing on to, which tells you that our process for intervening and holding Supreme Court candidates is a failure.
The opinion further states that:
The judgments of other nations and the international community [and the] climate of international opinion are not irrelevant to determining the acceptability of a particular punishment.
That is a total violation of the U.S. Constitution and its statutes. It is a total negation of what she told the committee as she came through the committee process. That is one of the reasons I did not believe her, because I believed her earlier statements to be her true feeling.
So what we have before the Judiciary Committee--and we have another nominee coming up now--is the ability for Justices to say whatever we want to hear, and then do whatever they want to do and ignore the U.S. Constitution, as she did, and in her testimony before the committee.
As journalist Stuart Taylor recently wrote in The Atlantic--this opinion that she cosigned onto:
The opinion was based on little more than the personal policy preferences of the five majority justices. And it looked abroad for consensus that so plainly does not exist here and violates our own U.S. Constitution.
So it did not matter what she told the committee. She did exactly the opposite of what she told the committee as she signed onto this opinion. We are going to need more than promises from the next nominee. An acceptable Supreme Court nominee must have a demonstrated record of adhering to the Constitution and their judicial oath by strictly interpreting the Constitution, according to our Founders' intent, not international opinion or consensus. It has no role in the interpretation of our Constitution. Senators cannot simply accept pledges from Supreme Court nominees that they will not use foreign law when interpreting the U.S. Constitution. The nominee to come before us, Solicitor General Kagan, wrote the following:
There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions.
Oh, really? Is that what our Constitution says? Is that what this candidate believes? Here is what she said. What is she going to say before us in committee, that she will not? What value is that if, in fact, she knows that to be the law, she admits that is what the U.S. Constitution says, and as soon as she is affirmed, does exactly the opposite? The process has to be changed. We can no longer take it on faith because, in fact, the process under which--since Bork actually spoke what he believed, since him, nobody has said what they believe. They have all chiseled on what they believe. They will not be accountable to what they believe. So we have to change that process.
The other concerning thing about Nominee Kagan is that when she went to Harvard, she made international law mandatory in terms of getting a degree out of law school at Harvard. But do you realize Harvard does not require its lawyers to take constitutional law? You can graduate from Harvard Law School and never have studied U.S. constitutional law. That tells you the trend this country is going in; we are abandoning our Constitution and the very wisdom that gives us the freedom we have today.
I will finish by saying, the consideration of any judge in the future, in terms of this Senator, is going to be borne out by what they have said before they got to the committee, not what they say to the committee, because we can no longer, as a body, trust what the nominees say in committee.
I yield the floor and suggest the absence of a quorum.
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