Thursday, July 8, 2010

Finessing foreign law

A Senator says "it's a raging debate within our country today."
Said to be raging just days before the Judiciary Committee's scheduled vote on the nomination of Solicitor General Elena Kagan (left) to the U.S. Supreme Court? Debate over judges' use of foreign and international law.
The Senator in question, Jeff Sessions (R.-Ala.) (below right), is against it:

I do not see how anyone can justify a citation to actions outside the country as any authority whatsoever to define what Americans have done. Americans believe that you only govern with the consent of the governed, and we have not consented to be governed by Europe or any other advanced nation.
This is an issue that IntLawGrrls have treated on a number of occasions (here, here, here, here, here, here, and here). During 3 days of committee hearings last week, moreover, a few Republican Senators complained about such use, and a few of their Democratic counterparts countered such complaints.
Yet media attention to the issue was anything but raging.
Can't attribute this fizzle to the fact that, as posted, Kagan's said or done little in relation to international law. Concerned Senators found enough in her record to permit them to express concern.
Nor can it be attributed to some surrender by Kagan. The hearings last year that led to confirmation of Justice Sonia Sotomayor (right) showed that donning an international law hairshirt wouldn't silence critics. Kagan opted for qualified defense. Relevant passages may be found by searching for "foreign" or "international" in the transcripts available here, here, and here; this post puts forward sample snippets.
Senator Chuck Grassley (R-Iowa) (below left) led by finding fault with curricular changes adopted that Harvard Law School adopted in 2007, when Kagan was dean:

GRASSLEY: ... And why, then, is it more important for a law student to take an international law course th[a]n [a] course in U.S. constitutional law? In other words, which is more important -- our Constitution or other nations’ constitutions and laws?
After assuring the Senator that Harvard Law students get their fill of domestic constitutional law, Kagan responded:

KAGAN: ... Now, I do think that international law is something that all law students today should be familiar with. I know that the students who graduate from Harvard, they go out, they do international litigation, they do international arbitrations, they do international business transactions, they do...
He interrupted with a pivot to judicial methodology:

GRASSLEY: ... Should judges ever loo[k] to foreign law for, quote-unquote, "good ideas?" Should they get inspiration for their decisions from foreign law?

By way of reply, Kagan categorized foreign law along with other sources of potentially persuasive authority:
KAGAN: ... I guess I’m in favor of good ideas coming from wherever you can get them, so in that sense I think for a judge to read a "Law Review" article or to read a book about legal issues or to read the decision of a state court, even though there’s no binding effect of that state court, or to read the decision of a foreign court to the extent that you learn about how different people might approach and have thought about approaching legal issues.
But I don’t think that foreign law should have independent precedential weight in any but a very, very narrow set of circumstances. ...
He put a point on his inquiry:

GRASSLEY: ... If confirmed, would you rely on your cite international foreign law when you decide cases?
She parried:

KAGAN: Well, Senator Grassley, I guess I think it depends.

She cited as instances in which consultation "might be useful" 2 cases that IntLawGrrls have discussed -- Samantar v. Yousuf (2010), on foreign sovereign immunities (posts here, here, and here), and Hamdi v. Rumsfeld (2004), on executive detention (posts available here).
Sen. Tom Coburn (R-Okla.) (right), who often reminds that he is a doctor and not a lawyer, again questioned Kagan on the issue. Her reply:

KAGAN: ... I don’t think that foreign law is appropriate as -- as precedent or as an independent basis of support in, you know, the vast majority of legal questions.
Now, I suggested to you a few that specifically might reference international considerations, such as, you know, the right to receive ambassadors or something like that. Even there I think the citations would not be a precedent, they would not have binding weight of any kind, but -- but -- but they might be relevant to interpretation of -- of -- of...
Coburn's observation that "[t]he oath that you’ll take as a justice of the Supreme Court is to uphold the Constitution and our statutes" provoked a moment of levity:

KAGAN: Well, I think I agree with you on that, Justice -- Senator Coburn.
COBURN: Don’t worry. I will never get there.
(LAUGHTER)
As he had during the Sotomayor hearings, Sen. Charles E. Schumer (D-N.Y.) (right) again endeavored to inoculate the nominee against any attack-by-foreign-virus. His effort drew this notable exchange:

SCHUMER: Right. Do you know any law school that doesn’t have some kind of international law course in its curriculum?
KAGAN: I think that that would be unthinkable.

Agreed.

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