Kyl Statement on Sotomayor

WASHINGTON, D.C. – U.S. Senate Republican Whip Jon Kyl, a member of the Senate Judiciary Committee, today delivered remarks on Senate floor regarding U.S. Supreme Court Justice nominee Sonia Sotomayor’s views on foreign law. The following are excerpts from his remarks:

“In our constitutional system, the American people – through their elected representatives – make the laws by which they are governed. As James Madison said in Federalist 49: ‘The people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived.’

“Judges have the responsibility to faithfully interpret the Constitution and the laws that have been adopted through our democratic processes. Again, judges don’t make the law; they interpret it. Within our constitutional structure, the growing idea of using foreign law to interpret our own laws and Constitution is troubling and problematic for two main reasons.

“First, as Chief Justice John Roberts pointed out during his confirmation hearing, the consideration of foreign law by American judges is contrary to principles of democracy. Foreign judges and legislators are not accountable to the American electorate. Using foreign law – even as a thumb on the scale – to help decide key constitutional issues devalues Americans’ expressions through the democratic process. An analogy would be to allow non-citizens to vote in our elections – thus devaluing the votes of every American.

“Second, even if the use of foreign law were not inconsistent with our constitutional system, its use would free judges to enact their personal preferences under the cloak of legitimacy. If an American judge wants to find a foreign judicial decision or legislative enactment consistent with his or her preferred outcome in a case, he or she could find it in the laws of at least one of the 192 United Nations member states. And that would be judicial activism compounded by the error of using inappropriate precedent.

“As we soon begin to consider Judge Sotomayor’s nomination to the nation’s highest court, both the American people and the Senate deserve to know where she stands on this issue of using foreign law to interpret the U.S. Constitution.

“Although we do have some materials that suggest her views, we are still waiting on a number of important documents that will help us better understand her views.”

“The most notable of the materials we do have is a 22-minute speech Judge Sotomayor gave to the ACLU of Puerto Rico on April 28, 2009, entitled, ‘How Federal Judges Look to International and Foreign Law Under Article VI of the U.S. Constitution.’

From that speech, we begin to see how foreign law could shape Judge Sotomayor’s jurisprudence in the future. Her views were not casual observations, but directed to this specific topic.

“In this speech, she says, ‘[I]nternational law and foreign law will be very important in the discussion of how we think about the unsettled issues in our own legal system. It is my hope that judges everywhere will continue to do so 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.’

“What on earth does this have to do with judging? Asking what ‘anyone has said to see if it has persuasive value’? How about using traditional rules of construction, precedents, and other judicial tests based on our common law heritage.

“Judge Sotomayor also reveals that she believes foreign law is a source for ‘good ideas’ that can ‘set our creative juices flowing.’ Deciding an anti-trust case, or a commerce clause dispute, or an Indian law issue, or an establishment of religion case does not require ‘creative juices.’ Indeed, it could interfere with specific rules of construction or application of precedent.

“But Judge Sotomayor says that not considering foreign law ‘would be asking American judges to close their minds to good ideas.’

“What is close-minded about requiring that American judges interpret our laws and our Constitution? That’s what they take their oath of office to do!”

“Let’s also remember that Judge Sotomayor has previously stated that appellate courts are ‘where policy is made.’

“When you combine the notion that judges may usurp the legislative power of policymaking with the view that foreign law is an incubator of creative ideas for a judge to employ as he or she sees fit, you open the door to the worst form of judicial activism – one completely un-tethered from American legal principles.

“Judges do not have the responsibility of finding new, ‘good ideas’ that would make good policy. That is the role for our elected representatives. The ideas expressed by Judge Sotomayor threaten to undermine a system that has served us well for more than two centuries.”

“While I do not intend to judge her qualifications to decide cases on the U.S. Supreme Court based on this one speech, I believe it is fair to ask what else Judge Sotomayor has said on the subject. There are apparently other speeches that we do not have. The nominee should either find these speeches or ask whether there are other records, for example, transcripts, tape or video recordings, press accounts, that would indicate whether her April 28 speech is indicative of her approach to judging.”