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Daniel Terris

Sotomayor’s cautious openness to foreign laws

By Daniel Terris
July 16, 2009
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IN THE WEEKS following the nomination of Judge Sonia Sotomayor to the Supreme Court, much of the public scrutiny has focused on issues of “empathy’’ and identity.

Yet a more substantive and sinister charge has persisted in the press, in blogs, and in Congress. Sotomayor has been pilloried for her willingness to entertain the possibility that American judges and courts might have something to learn from judges and courts outside of the United States. Critics claim that she wants to impose “foreign law’’ on US citizens. An editorial this week in The Wall Street Journal complained that “using foreign law as a guidepost or inspiration raises issues of both sovereignty and democracy by permitting jurists outside the US system to guide the trajectory of our democracy.’’

A favorite text of those opponents is Sotomayor’s introduction to a book I co-authored, “The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases.’’ Republican Senator Jeff Sessions took her to task on the floor of the Senate for merely posing the question in that introduction of “how much we have to learn from international courts and from their male and female judges about the process of judging and the factors outside the law that influence our decisions.’’

In fact, Sotomayor’s cautious openness to legal ideas and reasoning from overseas is part of a heartening trend. At every level - in both federal and state courts - US judges have become more knowledgeable about international legal issues, heeding sentiments from America’s founding fathers that “a decent respect to the opinions of mankind’’ is a critical element of justice.

In the Supreme Court, Justices Stephen Breyer, Ruth Bader Ginsburg, and Anthony Kennedy have taken the lead. This has not taken the form of deference to “foreign’’ law, but to openness to sound judicial thinking wherever it is found. Kennedy has used reasoning from overseas courts to demonstrate that US law is out of step with the rest of the world when it criminalizes sodomy or when it permits the execution of juvenile offenders.

This trend toward greater openness to international legal norms is by no means dominant. The United States is sometimes cavalier about its international treaty obligations, and Americans have maintained an attitude of selective respect for institutions like the International Court of Justice in The Hague.

Sotomayor’s own comments on international law have actually been quite circumspect. Even her introduction to our book does no more than suggest that these questions deserve thoughtful consideration, as judges “try to cobble together a culture of justice-seeking in a changed world.’’

But thoughtful consideration represents an important challenge to opponents like Justice Antonin Scalia, who have railed against the “foreign moods, fads and fashions’’ of international law.

Whatever the future role of Sotomayor, a burgeoning respect for judges and courts from overseas should help further the heartening idea that the United States is not a nation unto itself, but a nation among nations, working toward justice for its own citizenry and for men and women around the globe.

Daniel Terris is director of the International Center for Ethics, Justice and Public Life at Brandeis University and is coauthor, with Cesare P.R. Romano and Leigh Swigart, of “The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases.’’

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