Finessing foreign law

A Senator says "it's a raging debate within our country today."
Said to be raging just days before the Judiciary Committee's scheduled vote on the nomination of Solicitor General Elena Kagan (left) to the U.S. Supreme Court? Debate over judges' use of foreign and international law.
The Senator in question, Jeff Sessions (R.-Ala.) (below right), is against it:

I do not see how anyone can justify a citation to actions outside the country as any authority whatsoever to define what Americans have done. Americans believe that you only govern with the consent of the governed, and we have not consented to be governed by Europe or any other advanced nation.

This is an issue that IntLawGrrls have treated on a number of occasions (here, here, here, here, here, here, and here). During 3 days of committee hearings last week, moreover, a few Republican Senators complained about such use, and a few of their Democratic counterparts countered such complaints.
Yet media attention to the issue was anything but raging.
Can't attribute this fizzle to the fact that, as posted, Kagan's said or done little in relation to international law. Concerned Senators found enough in her record to permit them to express concern.
Nor can it be attributed to some surrender by Kagan. The hearings last year that led to confirmation of Justice Sonia Sotomayor (right) showed that donning an international law hairshirt wouldn't silence critics. Kagan opted for qualified defense. Relevant passages may be found by searching for "foreign" or "international" in the transcripts available here, here, and here; this post puts forward sample snippets.
Senator Chuck Grassley (R-Iowa) (below left) led by finding fault with curricular changes adopted that Harvard Law School adopted in 2007, when Kagan was dean:

GRASSLEY: ... And why, then, is it more important for a law student to take an international law course th[a]n [a] course in U.S. constitutional law? In other words, which is more important -- our Constitution or other nations’ constitutions and laws?

After assuring the Senator that Harvard Law students get their fill of domestic constitutional law, Kagan responded:

KAGAN: ... Now, I do think that international law is something that all law students today should be familiar with. I know that the students who graduate from Harvard, they go out, they do international litigation, they do international arbitrations, they do international business transactions, they do...

He interrupted with a pivot to judicial methodology:

GRASSLEY: ... Should judges ever loo[k] to foreign law for, quote-unquote, "good ideas?" Should they get inspiration for their decisions from foreign law?

By way of reply, Kagan categorized foreign law along with other sources of potentially persuasive authority:

KAGAN: ... I guess I’m in favor of good ideas coming from wherever you can get them, so in that sense I think for a judge to read a "Law Review" article or to read a book about legal issues or to read the decision of a state court, even though there’s no binding effect of that state court, or to read the decision of a foreign court to the extent that you learn about how different people might approach and have thought about approaching legal issues.
But I don’t think that foreign law should have independent precedential weight in any but a very, very narrow set of circumstances. ...

He put a point on his inquiry:

GRASSLEY: ... If confirmed, would you rely on your cite international foreign law when you decide cases?

She parried:

KAGAN: Well, Senator Grassley, I guess I think it depends.

She cited as instances in which consultation "might be useful" 2 cases that IntLawGrrls have discussed -- Samantar v. Yousuf (2010), on foreign sovereign immunities (posts here, here, and here), and Hamdi v. Rumsfeld (2004), on executive detention (posts available here).
Sen. Tom Coburn (R-Okla.) (right), who often reminds that he is a doctor and not a lawyer, again questioned Kagan on the issue. Her reply:

KAGAN: ... I don’t think that foreign law is appropriate as -- as precedent or as an independent basis of support in, you know, the vast majority of legal questions.
Now, I suggested to you a few that specifically might reference international considerations, such as, you know, the right to receive ambassadors or something like that. Even there I think the citations would not be a precedent, they would not have binding weight of any kind, but -- but -- but they might be relevant to interpretation of -- of -- of...

Coburn's observation that "[t]he oath that you’ll take as a justice of the Supreme Court is to uphold the Constitution and our statutes" provoked a moment of levity:

KAGAN: Well, I think I agree with you on that, Justice -- Senator Coburn.
COBURN: Don’t worry. I will never get there.
(LAUGHTER)

As he had during the Sotomayor hearings, Sen. Charles E. Schumer (D-N.Y.) (right) again endeavored to inoculate the nominee against any attack-by-foreign-virus. His effort drew this notable exchange:

SCHUMER: Right. Do you know any law school that doesn’t have some kind of international law course in its curriculum?
KAGAN: I think that that would be unthinkable.

Agreed.

International law hairshirt

Still itching from that hairshirt Judge Sonia Sotomayor had on all last week.

No, not that hairshirt. The Mad Men overtones were so obvious -- lots of wise words and wisecracks swirling about the male-dominated dais, while all small-screen viewers could see that "Miss Olson" was among the brightest bulbs in the room -- that more comment of the sort seems hardly worth the effort. (EveryPundit apparently thought otherwise this weekend, though; see, e.g., here, here, and here.)

No, what gave this IntLawGrrl an urge to scratch was Sotomayor's international-and-foreign-law hairshirt.

Four days of hearings revealed a Capitol Hill consensus that before this nominee could win confirmation -- now expected the 1st week of August -- she was going to have to do penance for the presumed sins of her soon-to-be colleagues on the U.S. Supreme Court. (credit for hearing photo)

The Justices have sinned, it seems, by stating honestly that consultation of international or foreign legal norms had aided their decisionmaking. As I've written here, here, and here, every Justice on the Rehnquist Court -- including the oft-cited critics of the practice, William H. Rehnquist, Antonin Scalia, and Clarence Thomas -- did it now and again. No Justice ever claimed that a look at the reasoning of other learned judges had compelled her or his conclusion. Each made clear that although on occasion such reasoning might have persuasive power -- as might an article in a U.S. law journal or the opinion of judges sitting in 1 of the 50 states -- it never binds the Court to arrive at a particular result. For a long time consultation was unobjectionable; indeed, unobjected-to. But after Justices used this methodology in the course of reversing 3 Rehnquist-era precedents respecting same-sex sodomy and capital punishment of children and mentally retarded persons, some, including some Republicans in Congress, called for judicial impeachments (pp.1571, 1579).

Thus a Democratic Senator, Charles Schumer (below left) of New York, was tasked on Day 2 of the hearings to inoculate Sotomayor against international-law infection:

SEN. SCHUMER: ... Just so the record's a hundred percent clear, what do you believe is the appropriate role of any of foreign law in the U.S. courts?
JUDGE SOTOMAYOR: 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 .... There is no debate on that question. There's no issue about that question.
The question is a different one because there are situations in which American law tells you to look at international or foreign law, and my speech was talking to the audience about that. And in fact I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing. So, for example, if the U.S. is a party to a treaty, and there's a question of what the treaty means, then courts routinely look at how other courts of parties who are signators are interpreting that. There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that's going to be done in that other country, then American law would say you may have to look at that foreign law to determine the contract issue. ...

SEN. SCHUMER: Right. And you've never relied on a foreign court to interpret U.S. law, nor would you.
JUDGE SOTOMAYOR: In fact, I know that in my 17 years on the bench, other than applying it in treaty interpretation or conflicts-of-law situations, that I have not cited to foreign law.

That did not satisfy other Senators, however. Among those returning to the issue on Day 3 was Sen. Jeff Sessions (R-Ala.) and Sen. Tom Coburn (R-Texas) (below right); the latter elicited this colloquy:

SEN. COBURN: So there—you stand by the—there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions, based on the Constitution or statutes?
JUDGE SOTOMAYOR: Unless the statute requires you or directs you to look at foreign law—and some do, by the way—the answer is, no, foreign law cannot be used as a holding or a precedent, or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.

Sotomayor then drew a verbal distinction:

JUDGE SOTOMAYOR: [T]here's a public misunderstanding of the word "use" in what I was talking about. One doesn't use those things in the sense of coming to a legal conclusion in a case.
What judges do—and I cited Justice Ginsburg—is educate themselves. They build up a story of knowledge about legal thinking, about approaches that one might consider. But that's just thinking. It's an academic discussion when you're talking about
thinking about ideas than it is how people think about the citation of foreign law in a decision. They assume that a—if—if there's a citation to foreign law, that's driving the conclusion. In my experience, when I've seen other judges cite to foreign law, they're not using it to drive the conclusion. They're using just to point something out about a comparison between American law or foreign law. But they're not using it in the sense of compelling a result.

On Day 4, Coburn pressed for Sotomayor to "affirm" on the issue, and she complied:

JUDGE 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.

Feeling itchy?

The distinction confounds -- "use" doesn't mean a conclusion's compelled, but "interpret" does? Yet it was totally in keeping with the penance apparently expected of this nominee, by Senators on both sides of the aisle, by those who prepared Sotomayor for the hearings, and by the judge herself.

What's next?

Consider the answer of another woman who's served on the federal bench -- Patricia M. Wald (left) (photo credit), once the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and later a Judge on the International Criminal Tribunal for the former Yugoslavia. In "Questions Sotomayor Still Must Address," a Washington Post op-ed that dealt with a number of issues, Wald wrote this on the question of foreign and international law:

[A] less timid defense of looking at how other countries deal with similar legal problems in a globally dependent world might be in order. We openly extol our institutions and legal theories to the rest of the world; why should we not be open to looking at theirs? ...

Wald concluded:

Sotomayor did a superb job in maneuvering a smooth course toward a deserved seat on the Supreme Court, but, hopefully, she and others will think about some of these enduring problems in the judicial system after they get there.

Waterboarding roundup

No need to repeat prior thoughts (here and here) on the nomination of Michael B. Mukasey to be Attorney General; those thoughts still hold. But as the Mukasey nomination heads for the full Senate floor -- having cleared committee thanks to the tipping factor of "aye" votes cast by Senators Dianne Feinstein (D-Cal.) and Charles Schumer (D-N.Y.) -- it seems a good time to sample others' comments on the nomination and on waterboarding, the interrogation tactic that the nominee's declined to call illegal.
Check out:
"Self-Inflicted Wounds," an op-ed by former Bush and Clinton Administration officials Alberto Mora and John Shattuck
"Poll results: Waterboarding is torture"
"French Journalist Henri Alleg Describes His Torture Being Waterboarded by French Forces During Algerian War" (video of that televised interview here)
Post scriptum: Realize that the title of this post may make one wince. Yet it's apt, and that in itself is worth thinking about.