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tv   [untitled]  CSPAN  June 25, 2009 8:00pm-8:30pm EDT

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and the american people. that is, what if any is the appropriate role for foreign lot to play in the interpretation of our constitution? meaning, should judges look at what other countries say when they are determining what our constitutional rights? . . question. it's a question that has the potential to impact our fundamental rights guaranteed to us by the united states constitution. until recent years the answer has always been understood to be "no." apart from a few rare circumstances and certainly never in the interpretation of the meaning of our precious constitutional rights. this traditional understanding has served to protect our constitutional rights by ensuring that judges remain true to the will of the american people not the will of foreign judges or courts. our system has been a critical
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component. our system has a critical component: moral authority. that moral authority comes from the basic concept that our law is a product of the will of the people and through the people they chose to represent them. the constitution begins, "we the people do ordain and establish this constitution." and our laws are enacted by a congress, a body subject to the will of the people, composed of people elected by the people. we are accountable to the american citizens. the novel idea that foreign law has a place in the interpretation of american law creates numerous dangers and a number of academics and even federal judges are, i would say, seduced by this idea.
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judge sotomayor clearly shares in that judge. i'm somewhat surprised but it's true as i will discuss. her vision seems to be we should change our laws or listen to other laws and judges in sort -- and so the of merge them with the foreign law. that is the overt opinion. mr. koh who was just nominated and confirmed to the chief counsel of the u.s. state department, mr. koh is quite open about it, shockingly, really. i suggest if we become transnational we suffer two blows to our legal system. first the laws we are subject to would not be laws made by us. this would remind us of the boston tea party. the colonies objected to paying taxes but not just any taxes.
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they objected because the taxes were being imposed on them by the british parliament and they didn't have a voice in it. the complaint was taxation without representation. thus, the moral power of the american law to compel obedience arises from the people's choice to enact it in the first place, that moral authority is undermined when we allow foreign law we had nothing to do with to impact our law. that is a pernicious thing, i suggest. secondly, it is not ever going to work in our good way. most countries don't have law, the truth be known. they have politics masquerading as law. trying to merge our system based on truth, the law and the evidence with these political legal systems will only result in our being shortchanged. we can reach agreements
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affecting mutual interests with foreign nations and adhere to them as long as we mutually agree to do so through treaties and other agreements but to submit ourself to their political policies while pretending we are merging our law with theirs is just plain foolishness. it also creates confusion on a matter of utmost importance. the question is, who does the judge serve? the people of the united states or the people of the world or some individual country with whom they agree? or to the world community often referred to? furthermore, reliance on foreign law places our constitutional rights in jeopardy. there are great differences between american and foreign law on cherished rights protected by our constitution. the constitution's protection of free speech is probably unparalleled anywhere in the
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world. or in additions punish, sometimes, spirited debate on controversial matters. they call it sometimes "hate crime," and take action against speech and other things that we would allow without a single thought or criminalize -- are criminalized in other countries. the constitution protects the right to keep in bear mines and other nations ban private gun ownership and the constitution allows for the death penalty. other nations reject the use of the death penalty even for violent killers while other nations have the death penalty and they impose it without do you process being carried out. yet this troubling potential for infringements on constitutional rights i would suggest is only the tip of the iceberg. first and foremost, reliance on foreign law creates opportunities for judges to
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undulling their policy preference. in a speech given to the puerto rico chapter of the american civil liberties union on april 28 of this year, 2009, just one day after having been contacted by the white house about the possibility of a supreme court vacancy, judge sotomayor placed herself firmly on what i believe is the wrong side of this debate. stating in this speech -- quote -- "to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that's based on a fundamental misunderstanding. what you would be asking american judges to do is close their mines to good ideas." well, the requests our judges
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supposed to reflect are the requests that united states congress in the to be go. ones we enacted into law. not what was enacted in france or saudi arabia or china or any other place. this is a matter of real respose. and this whole concept of foreign law has been a matter of real controversy for several years. it's a timely subject for sure. i thought it was pretty roundly condemned although one judge on the supreme court defends it. but in her speech judge sonia tomayor explains -- quote -- "the nature of the criticism of using international law comes from a misunderstanding of the american use of that concept of
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using foreign law and that misunderstanding is unfortunately, endorsed by some of our own supreme court justices. both justice scalia and justice thomas have written extensively criticizing the use of foreign and international law in supreme court decisions." so she criticized justice scalia and thomas, who have expressed opposition to this. let me be blunt. i believe it's judge sotomayor, not the justices scalia and thomas, who are wrong. under her approach, a yuj is free -- has free rein to survey the world to find what they might consider to be good ideas, and then impose these views on the american people calling it "law." however, this is not the american system. our system requires judges to adhere to this constitution. to the statutes and to the legal
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precedent, to the end that justices follow the will of the people of our country, as expressed in our law. the constitution says we do ordain and establish this constitution of the united states, not some other. judges aren't free to amend it by citing some other foreign constitution. i think this is a big deal. so they're not -- judges aren't free to indulge their own personal opinions about what good policy is. judges don't set policy. and to search for support for that in foreign law. despite judge sotomayor's claim at a duke law school panel discussion that -- quote -- -- f appeals is where policies is made. judges are not policy-makers. they are servants of the law if they're fulfilling their role properly. the law, as it is, not the way they might wish it to be. second, in reliance on --
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reliance on foreign law causes confusion rather than clarification as to the state of american law. judge sotomayor claims that foreign law -- quote -- "can add to the story of knowledge relevant to the solution of a question." close quote. paraphrasing supreme court justice ruth bader ginsburg, who pioneered this concept, she made those statements. and judge ginsburg's citation of it in cases and her defense of it in speeches is really -- has really led to this controversy which scalia and thomas have responded. so on the contrary, reliance on foreign law create creates conf. consider sotomayor's opinion in c.e.o. v. c.e.o. in the interpretation of a treaty. one of the few instances in which reliance on foreign law may be perfectly permissible. judge sotomayor repeatedly
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criticized the majority judges on the panel as parochial for consulting american dictionaries to understand the meaning of the -- of "custody" as determined by the hague convention on international child abduction and then she relies on foreign interpretations of those words instead. yet the majority rightly rebuked judge sotomayor for relying on the scattered and divergent foreign legal cases on this subject. the majority even cites the supreme court precedent that warns against relying on foreign law, creates a state of confusion. third, the reliance on foreign law is also based on a misconception that judges, rather than elected officials, in the political branches of government play a role in advancing our nation's foreign
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policy. judge sotomayor states this -- quote -- "i share more the ideas of justice ginsburg and h thinking that unless american courts are more open to discussing the ideas raid by foreign cases and by international cases, that we are going to lose influence in the world." close quote. but judges aren't diplomats, and it's a job of diplomats -- it's the job of diplomats to protect our standing in the world and they have to explain to the world why we rule the way rerule on our cases. that's their responsibility. reliance on foreign law blurs a distinction between domestic and foreign law undermining our ability to make democratic choices. the examples of the supreme court reliance on foreign law cited approvingly by judge sotomayor, involve the interpretation of the constitution dealing with purely
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domestic legal issues that do not and should not touch on any matter of international concern. for example, she approvingly cites the case of robert v. simmons in which five justices of the supreme court recently rendered a decision based in part on their review of foreign law and concluded that our constitution declares that we cannot execute a violent criminal if that criminal is one day under 18 years of age when he killed someone or a group of people. there is enothinthere's nothinge constitution that says that. they found some foreign law to make an argument about what the constitution says about what age a state can set for a death penalty. i know we can disagree on what the age should be, but it's a legislative matter. the court in that case said it
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was looking to -- quote -- "evolving standard of decency that marked the progress of a maturing society" -- close quote. what kind of standard is that for a law? where do you find what the maturing society now believes? do you check with china? do you check with iran? or maybe france? i mean, where do we do this? how do they define what this all is? the court concluded that the death penalty violated the eighth amendment, which prohibits cruel and unusual punishment when there are at least six or more references in the constitution itself. the capital crimes, to not taking life without due process, it's always been contemplated in
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the constitution that the death penalty is not cruel and unusual. that was for drawing such matters as@@@@@@@ h @ @ @ @ @ t is the authority and power will be diminished. yet this is precisely what was advocated by judge sotomayor who says those that do this will bring together by laws to help us understand and help us understand the power on the standing of our own institutional rights fell into the mainstream of human thinking.
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in truth, they say all it does is allow judgment for those that do this all along.
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when interpreting our constitution, is not the only one worth posing . . as the international judge makes clear, we should also question how much we have to learn from international courts and their male and female judge about the process of judging and the factors outside the law that influence our decisions. in a speech in 1999 judge sotomayor expressed add miergs for the french panel of judges, issuing single decisions commenting that with a single decision there is less pressure on individual judges and less
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fear of reprizal for unpopular decisions, closed quote. according to william d., french opinions are the legal coat quote of flashing a policeman's badge, and the irony of french traditional memory writing allows french judges to conceal the lama-making roll, boulder than the case of u.s. judges lacking u.s. precedence. we have seen three opinions in recent years and months from judge sotomayor.
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no one judge assumes responsibility for the decision, and they were very short. in a way, maybe she is following that. surprisingly short on the case involving firearms, on the case involving the firefighters in connecticut. they were short opinions, and not a lot of discussion and procure yum. the approach makes it easier for judges to ground their decisions, making it more difficult to see if the reasoning was justified. judge sotomayor may already be following that as i notice with some of the opinions we have seen. wants to -- more international law, not less.
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ominously, judge sotomayor states -- quote -- "international law and foreign law will be very impornt in the discussion of how we think about the unsettled issues in our legal system. it is my hope that judges everywhere will continue to do this because, within the american legal system, we're commanded to interpret our law in the best way we can, and that means looking to what other anyone has said to see if it has persuasive value." close quote. the judge makes, i think, an audacious claim that the american legal system commands judges to look at foreign law and highlights the role of making decisions on unsettled cases. there have been and will be many differences between domestic and foreign law on matters that are fundamental. this is normal and understanding
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because different nations have different cultures, values, and legal systems. the united states should be independent to pursue its own individual choices expressed through the american people, through their elected officials, to reach the fullest and richest expression of our exceptionalism as a nation. the american ideal of law is objectivity in deciding the case before the court. that case being sufficient for the day. this is unusual. most countries are not so restrained. to a much greater degree, foreign judges see themselves as policy-makers. in afghanistan -- in pakistan recently, the chief judge there was setting all kinds of policy in afghanistan. i thought it was most unusual. surely nothing like that would
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happen here, because we have a different heritage. and i would suggest that for an ambitis or strong-willed american judge, such freedom to search around the world to identify arguments that might be helpful in allowing them to reach a result they might like to reach would be a great temptation. it is a siren call that ought not to be followed, and great judges do not do so. they analyze the american statutes, the american constitution in a fair and objective way. they apply it to the evidence fairly and honestly found and render a decision without any regard to the parties before them, to the rich and poor alike, as their oath says, and that's why we give them independence as a judge to show that they will be more willing
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to render those kinds of opinions. so i'm troubled by by. i've got to say i didn't expect to see that a nominee would be one of the leading advocates for the adoption of foreign law in our american legal system. i think it's wrong. i don't think that's a good idea. the american people need to be talking about that issue as they think about the confirmation that will be coming up. our nominee, judge sotomayor, is delightful to talk to. she has a record and a practice as a private practitioner, as a prosecutor, as a district judge, an appellate judge. all of those are good. and she has many good qualities. but some of the issues i'm raising today and have raised previously do cause me conce proceedings under the quorum call be terminated. the presiding officer: without objection. mr. specter: i have sought recognition to comment briefly on the pending nomination of
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judge sotomayor to be an associate justice on the supreme court of the united states. i have made it a practice to write to nominees in advance of the hearings in order to give advance notice to the nominee so that the nominee will be in a position to respond to questions raised without going back to read the cases or considering the issues and to facilitate the proceeding. i commented to justice judge sotomayor when she had the so-called courtesy call with me that i would be doing that, and my letter dated dated june 15, i wrote her the first letter and commented about it, a floor statement and discussing in some detail the qualifications of judge sotomayor for the supreme court.
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to briefly recapitulate it, i noted in my earlier floor statement her excellent academic record, high rankings in princeton undergrad and yale law school, her work as an assistant district attorney, her professional experience with a major law firm, her tenure on the federal trial court and her current tenure on the court of appeals for the second circuit. today i am writing to judge sotomayor to give her advance notice that i will be acquiring -- inquiring into her views on television. i have long advocated televising the proceedings of the supreme court and have introduced legislation to require that subject to a decision by the court on a particular case if
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they thought that the court ought not to be televised. i think the analogy is very apt, televising proceedings of the united states senate or the united states house of representatives so that the public may be informed as to what is going on on these public matters. the arguments in the supreme court are open to the public. only a very few people have an opportunity to see them. first, it's not easy to come to washington. and, second, there are so many people even who do come to washington that they're allowed to be there only a very few minutes. but with the marvels of television, with this proceeding -- if this proceeding appears in the homes of many americans on c-span 2, the house is televised on c-span 1, and
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many of our hearings are similarly televised. and that is a great educational tool and also it shows what is going on. the supreme court of the united states in a 1980 decision, richmond newspapers vs. virginia, noted that a public trial belongs not just to the accused, but to the public and the press as well. the supreme court noted that such openness has -- quote -- "long been recognized as an indispensable attribute of an anglo--american trial." chief justice william howard taft put the issue into perspective stating -- quote -- "nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that
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every act of theirs is subject to intelligent scrutiny of their fellow man and to candid criticism." in the same feign, justice felix frankfurter said if the news media would cover the supreme court as thoroughly as it did the world series, it would be very important since public confidence in the judiciary hinges on the public's perception of k. it would certainly comprehend television and modern days and certainly justice frankfurter's use of the term media would include television as well. it is worth noting that justices have been frequently -- have frequently appeared on television. chief justice roberts and justice stevens appeared on "primetime," abc, justice
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ginsberg was on television, justice meyers participated in "fox news sunday," a debate between justice scalia was available for viewing on the web. there is no doubt of the enormous public interest in what television -- in what the supreme court does when the case of bush v. gore was decided, the block surrounding the supreme court chambers across the green from the senate was loaded with television trucks. although the cameras couldn't get inside, there was tremendous public concern. and the decisions of the court are on all of the cutting edge issues of the day. the court decides executive power, congressional powrks defendant's


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