During Judge Sotomayor’s confirmation hearing, conservatives repeatly made the false claim that she believes that U.S. law is governed by foreign courts. In a Senate floor speech yesterday, however, Senator Jon Kyl (R-AZ) doubled down on this lie, audaciously accusing Sotomayor of perjuring herself before the Judiciary Committee:
“Later in her hearing, Judge Sotomayor gave the following testimony: ‘I will not use foreign law to interpret the Constitution or American statues. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.’ While this kind of declarative statement would normally provide some measure of comfort, it is belied by words Judge Sotomayor uttered less than three months ago, that judges were ‘commanded’ to look to ‘persuasive’ sources, including foreign law, in interpreting our own law. And it is even inconsistent with an exchange Judge Sotomayor had with Senator Schumer earlier in the hearing, in which she agreed that foreign law could be used for the same purposes as traditional interpretive tools, such as dictionaries.
“It gives me great pause that Judge Sotomayor could say one thing at a public speech earlier this year and say the opposite while under oath before the Judiciary Committee, especially since she never repudiated her speech.
No one, including Judge Sotomayor, actually believes that an American judge is bound by foreign decisions, and Kyl is simply lying when he claims that she does believe this. One of the first things that any lawyer learns in law school is that not all citations are created equal, and so when a judge cites to one source or another they are not necessarily saying that this source is controlling law. Conservative Justice Antonin Scalia recently cited to the Talmud in a judicial opinion, and a Seventh Circuit judge once cited hip hop artist Ludacris, but no one thinks that Scalia believes we should be ruled by unelected Rabbis, or that Seventh Circuit Judge Terence Evans believes that U.S. law is governed by unelected rappers.
As a general rule, citations to binding case law, statutes, regulations and the like are generally referred to as cites to “mandatory” authority, because they rely on legally binding materials that judges have no choice but to follow. Other citations, to law review articles or holy texts or non-binding caselaw, are known as “persuasive” authority. So when Sotomayor referred to foreign law as “persuasive” she was saying the exact opposite of what Kyl accuses her of. “Persuasive” is the legal word for a citation to something that is not controlling law, and when Judge Sotomayor states that she relies on persuasive authority, she is endorsing a practice used by literally every member of the United States Supreme Court and taught to every single lawyer in the country.
Indeed, the difference between mandatory and persuasive authority is so basic, most law students are taught this distinction in their first few weeks of law school. In light of the fact that Senator Kyl spent many years as a litigator before entering politics, it simply defies belief that he would not be aware of this distinction. If Kyl actually believed that a judge’s citation to a persuasive source like foreign law indicates that they believe foreign law is binding, mandatory authority, it is unlikely he would have made it this far in his career without being disbarred.
Sadly, however, there is a narrow band of Kyl’s conservative base that gets charged up by false claims that liberals can’t wait to transform America into France. In Kyl’s world, keeping these nuts fired up is apparently much more important than the truth.