Cornyn: Sotomayor's Record Must Be Focus Of Confirmation Hearings

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Cornyn: Sotomayor's Record Must Be Focus Of Confirmation Hearings

Confirmation hearings for Judge Sonia Sotomayor are scheduled to begin in just over a month. Senator John Cornyn, R-Texas, is committed to giving her record a full and fair review. In an effort to ensure a transparent, comprehensive examination of her extensive record, Senator Cornyn, a member of the Senate Judiciary Committee and a former Texas Supreme Court Justice, will pose a daily question raised by her record and her judicial opinions.

The goal of the Daily Question series is to encourage a civil discourse that focuses on what is important: Judge Sotomayor's record and judicial philosophy.

Daily Question for Friday, June 12, 2009:

What is the proper role of foreign and international law in interpreting the United States Constitution?

Explanation: The Constitution was "ordained and established" by "We the People of the United States." As Chief Justice Marshall explained in McCulloch v. Maryland, 17 U.S. 316, 403 (1819), "[t]he government proceeds directly from the people" and is established "in the name of the people." The Constitution establishes the framework for Congress and state governments to enact laws through the democratic process subject only to the Constitution's restrictions.

In recent years, however, some Supreme Court Justices have looked to foreign nations to find new limitations on what laws Congress and state legislatures can enact. For example, in Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court ruled that legislatures cannot impose capital punishment for heinous crimes committed by individuals under the age of eighteen. Justice Kennedy's majority opinion emphasized the "weight of international opinion" and cited the United Nations Convention on the Rights of the Child, among other sources. Id. at 576-77.

On April 2, 2009, Judge Sotomayor endorsed such consideration of foreign and international law in a prepared address delivered at the American Civil Liberties Union of Puerto Rico. Judge Sotomayor argued that foreign and international law can be "very important" to American judges as a source of "good ideas" that "set our creative juices flowing." In response to those who oppose judicial consideration of foreign law to determine the limits of democratic decisionmaking, she stated at the 1:08 mark:

How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think, and 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 to do is to close their minds to good ideas.

Judge Sotomayor also stated at the 20:48 mark that considering foreign and international law is part of a judge's "freedom of ideas":

To the extent that we as a country remain committed to the concept that we have freedom of speech, we must have freedom of ideas. And 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. It is my hope that judges everywhere will continue to do this.

In my view, the Constitution does not give federal judges the "freedom of ideas" to devise new ways to limit the democratic process. Judges must follow the law and the Constitution. They are not "free" to enact "good ideas" into law when their "creative juices" flow. That is a job for the people acting through their elected branches, not a job for judges tasked with following the law. In light of Judge Sotomayor's address at the ACLU of Puerto Rico, I hope Judge Sotomayor can explain how she reconciles her views of foreign and international law with the properly limited role of the judiciary in a democratic society.

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