- The Washington Times - Thursday, July 2, 2009

ANALYSIS/OPINION:

Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, raised the issue of Supreme Court nominee Judge Sonia Sotomayor’s reliance on foreign law in a June 25 floor speech. What the senator described provides ample reason to reject her nomination to the Supreme Court.

On April 28, Judge Sotomayor delivered a speech in which she worried that “unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases … we are going to lose influence in the world.” She also said judges rightly have looked to foreign authorities “to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.”

That’s not all she had to say about the imperative of using foreign law as a guide for U.S. law. “To the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our legal system,” she said in April. This is a consistent theme of hers. In a 2007 forward to a book called “The International Judge,” Judge Sotomayor wrote that judges should “all attempt to cobble together a culture of justice-seeking in a changed world.”

At best, this is muddle-headed thinking. It also is evidence of a lack of self-control.

These statements are muddle-headed because they fail basic tests of logic. Why should “unsettled issues” in the U.S. legal system benefit from “freedom of ideas” as expressed through international law and foreign law? The outcome of legal “issues,” even “unsettled” ones, is determined not by something as nebulous as ideas, but by hard facts, precedent and clear legal reasoning. U.S. law is determined by the consent of the governed through their elected representatives - not by the opinions of foreign nationals about whom American citizens have never heard or for whom they have never voted.

Worse than her muddle-headedness is Judge Sotomayor’s lack of discretion or humility. In the American system, judges are not meant to be philosophers, legislators or diplomats. Their job is to apply the law as written, not to try to achieve some sort of cosmic justice as determined by their own inner ethical gyroscopes.

It is a sign of injudicious grandiosity for a judge to use her position to try to achieve “influence in the world” - or, more intemperately, to “cobble together a culture of justice-seeking.” A judge should leave those considerations to legislators, Cabinet members and the president. Likewise, for an American judge to worry about “the mainstream of human thinking” is to set herself up as a sort of philosopher queen, one who claims her ability to interpret and assess the validity of world opinion is greater than that of the mere plebeians who make up the American public.

Mr. Sessions summed up the situation quite well last week. “Moral authority,” he said, “is undermined when we allow foreign law, which we had nothing to do with, to impact our law. That is a pernicious thing.” It is pernicious, indeed.

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