Sen. Coburn's Bogus Attacks On Sotomayor, Kagan And International Law

June 10, 2010 6:34 pm ET

Commentators have described Elena Kagan's Supreme Court confirmation process -- so far -- as a "yawn" in comparison to last summer's battle royale over Justice Sonia Sotomayor's nomination, but in some all-too-familiar ways, it's exactly the same.

For example, we're seeing conservatives level trumped-up charges against Kagan regarding international law, playing into right-wing fears that she will rely on "foreign law" to override the U.S. Constitution. Not surprisingly, conservatives made similar meritless claims about Sotomayor just last year.

But before delving into the nitty-gritty, let's get one basic fact on the table: Many Supreme Court justices -- including conservative Justice Antonin Scalia -- do "consider foreign practices in some situations."  As a New York Times article from 2008 reported:

The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is that to cite such a decision is to be bound by it.

Even conservative scholars acknowledge that American judges have long cited decisions by foreign courts in their rulings. "The Supreme Court has been doing it for basically all of our history, and with some degree of gusto," said Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, a conservative legal group. Professor Calabresi said he generally opposed the citation of foreign law in constitutional cases.

Judicial citation or discussion of a foreign ruling does not, moreover, convert it into binding precedent.


Indeed, American judges cite all sorts of things in their decisions - law review articles, song lyrics, television programs. State supreme courts cite decisions from other states, though a decision from Wisconsin is no more binding in Oregon than is one from Italy.

"Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge," Justice Ruth Bader Ginsburg said in a 2006 address to the Constitutional Court of South Africa. "But they can add to the story of knowledge relevant to the solution of trying questions."

In 2004, legal expert Eugene Volokh, citing a majority opinion authored by Justice Scalia, noted that "even Justice Scalia, a firm critic of certain kinds of reliance on foreign practices, finds it proper to ... consider foreign practices in some situations."

So, now that we've established that referencing foreign practice doesn't necessarily mean you're throwing the Constitution out the window, let's get into the disingenuous attacks Republican Senator -- and Judiciary Committee Member -- Tom Coburn made on the Senate floor yesterday. (Read along here, watch here.)

Coburn, the Ranking Member on the Subcommittee on the Constitution, claimed that Sotomayor, by signing on to a majority opinion issued this May, did "exactly the opposite of what she told the [Judiciary] committee [during her confirmation hearings]" with regard to international law. That opinion, written by Justice Kennedy, declared life-without-parole sentences for minors convicted of non-homicide crimes to be unconstitutional under the Eighth Amendment's prohibition on cruel and unusual punishment and, in doing so, noted "the global consensus against the sentencing practice in question."

Coburn claimed: "Well, either [Sotomayor] 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."

However, legal expert Jonathan Adler -- a frequent contributor to the conservative National Review Online and The Volokh Conspiracy -- took on this claim shortly after the opinion was released and concluded the opinion was "consistent with the position Justice Sotomayor articulated to the Senate Judiciary Committee." Adler wrote:

Justice Kennedy does not argue that foreign law controls the outcome, only that it can help confirm the Court's rationale.  This view will not satisfy those who believe foreign law is, and should be, completely irrelevant for questions of constitutional interpretation -- it does not satisfy me -- but it is consistent with the position Justice Sotomayor articulated to the Senate Judiciary Committee.

Indeed, Kennedy's opinion did not declare that international law directed the Supreme Court's decision on whether these sentences constituted cruel and unusual punishment. If Kennedy had done so, maybe Coburn would have a point. But Kennedy actually did the opposite, saying that foreign law is "not dispositive as to the meaning of the Eighth Amendment":

There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over. This observation does not control our decision. The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment . But "'[t]he climate of international opinion concerning the acceptability of a particular punishment'" is also "'not irrelevant.'"

Coburn then went on to attack Kagan for supposedly writing: "There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions." Coburn has previously claimed: "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." Of course, this isn't an unreasonable statement, as was explained earlier in this post. Judges -- including those sitting on the Supreme Court -- do sometimes consider foreign law sources. And though that quote does not appear in Kagan's answers to the only written questions posed to her during her SG nomination, the following, similar exchange does, and it too, is reasonable. From Sen. Arlen Specter's written questions for Kagan:

Constitutional and Statutory Interpretation

3. In your view, is it ever proper for judges to rely on contemporary foreign or international laws or decisions in determining the meaning of provisions of the Constitution?

a. If so, under what circumstances would you consider foreign law when interpreting the Constitution?

b. Would you consider foreign law when interpreting the Eighth Amendment? Other amendments?

c. Would you ever give weight to other nations' restrictions on gun rights when interpreting the Second Amendment?

Answer: This set of questions appears different when viewed from the perspective of an advocate than when viewed from the perspective of a judge. At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General's office should offer reasonable foreign law arguments to attract these Justices' support for the positions that the office is taking. Even the Justices most sympathetic to the use of foreign law would agree that the degree of its relevance depends on the constitutional provision at issue. A number of the Justices have considered foreign law in the Eighth Amendment context, where the Court's inquiry often focuses on "evolving standards of decency" and then on the level of consensus favoring or disfavoring certain practices. By contrast, none of the Justices relied on other nations' restrictions on gun rights in their opinions in District of Columbia v. Heller, 554 U.S. ___ (2008), and the grounded historical approach adopted in that case (and echoed even in the dissents) would grant no relevance to arguments from comparative law in defining the scope of the Second Amendment right. [emphasis added]

So, Kagan -- who as solicitor general would have a duty to make every reasonable argument to defend federal laws and actions -- was in fact explaining that in her role as an advocate, "the Solicitor General's office should offer reasonable foreign law arguments" to "attract" the support of the Justices who take that kind of thing into account. She then explained when an advocate's foreign law argument would be relevant and when it would not.

Who would ever vote for a solicitor general who said she would engage in such a practice? Tom Coburn. That's who.

Coburn wrapped up his speech about Kagan, Sotomayor, and foreign law with this little nugget:

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.

If those comments leave you wondering why Kagan would ditch Harvard's constitutional law requirement -- well, you have been misled. Prior to Kagan's deanship -- in 2002, for example -- a constitutional law class was not required at Harvard Law, and indeed, some VIP's seem to have muddled through the place: Justices Scalia, Roberts, Kennedy, Ginsburg and Breyer.


-Sarah Pavlus