Jun 09 2010
Senators Need More Than Promises from Elena Kagan
A look into the rulings of Justice Sotomayor and a glimpse into the questionable judicial philosophy of nominee to the Supreme Court, Elena Kagan:
Judge Sotomayor Embraced Foreign Law Before She Was Nominated:
• Judge Sotomayor: “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 good ideas. . . . Nothing in the American legal system prevents us from considering the ideas.”
• Sotomayor: “[I]nternational law and foreign law will be very important in the discussion of how we think about the unsettled issues in our own legal system. It is my hope that judges everywhere will continue to do this because . . . within the American legal system we’re commanded to interpret our law in the best way we can, and that means looking to what other, anyone has said to see if it has persuasive value.”
Click here to view Dr. Coburn's letter to Justice Sotomayor inquiring about her decision in the case of Graham v. Florida.
Judge Sotomayor Backed Away from Her Prior Statements During the Hearing:
• Senator Coburn: “[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?
• Sotomayor: “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.”
• Coburn: “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?”
• Sotomayor: “Unless the statute requires you or directs you to look at foreign law … the answer is no.”
Justice Sotomayor Proves Her Hearing Testimony Was Meaningless
• On May 17, Sotomayor joined an opinion citing the “judgments of other nations” when interpreting the Eighth Amendment to prohibit sentencing a juvenile offender to life in prison without parole for a nonhomicide crime.
• The opinion states the: “global consensus against the sentencing practice in question” provides “support for our conclusion” that the punishment is unconstitutional.
• 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.”
• Specifically, the opinion says: “‘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.
• As journalist Stuart Taylor recently wrote in The Atlantic, the opinion “was based on little more than the personal policy preferences of the five majority justices” and “looked abroad for the ‘consensus’ that so plainly does not exist in the U.S.”
• Taylor continues: “Didn’t Justice Sonia Sotomayor … testify at her confirmation hearing last year that ‘American law does not permit the use of foreign law or international law to interpret the Constitution? Yes, she did. That testimony now appears to be inoperative.”
Senators Need More Than Promises from Elena Kagan
• An acceptable Supreme Court nominee must have a demonstrated record of adhering to the Constitution and her judicial oath by strictly interpreting the Constitution according to our founders’ intent and delivering impartial justice.
• Senators cannot simply accept pledges from Supreme Court nominees that they will not “use” foreign law when interpreting the Constitution.
• As a Solicitor General nominee, Kagan wrote: “There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions,” such as the Eighth Amendment.
• Also, when Kagan became Dean of Harvard Law School, she spearheaded a sweeping overhaul of the academic curriculum to require law students to take an international and comparative law course during their first year.
o When asked “What specific subjects or legal trends would you like [Harvard] to reflect?,” Kagan responded: “First and foremost, international law. … we should be making clear to our students the great importance of knowledge about other legal systems throughout the world. For 21st century law schools, the future lies in international and comparative law, and this is what law schools today ought to be focusing on.”
o Kagan wrote: “Our goal, then has been to … better equip graduates to be proactive and creative problem solvers, able to operate effectively in a context where statutes and regulation (not just cases) play an increasingly important role and to work with a global perspective whether the particular problem involves a local contract dispute or an international treaty.”
• Yet Harvard law students are not required to read the Constitution. Constitutional law is not a first year requirement, nor a course requirement to graduate from Harvard Law School even though most top law schools across the country require a constitutional law course to graduate.
• I believe significant questions have been raised as to whether Kagan, like Sotomayor, will use foreign law if confirmed. These concerns will only be alleviated if Kagan can demonstrate by her prior record that she will not use foreign law.