Ever since the decisions of Lawrence v. Texas (2003) and Roper v. Simmons (2005), the citation of foreign legal precedent by US courts has been controversial. The majorities in these landmark cases cited foreign law in reaching their decisions, touching off a firestorm among conservatives. The nomination of Sonia Sotomayor to the Supreme Court may reignite that controversy. Judge Sotomayor wrote the preface to a recent book on the role of international judges entitled The International Judge: An Introduction to the Men and Women Who Decide the World's Cases, by Daniel Terris, Cesare P.R. Romano and Leigh Swigart (Waltham, MA: 2007). In writing this book, the authors have "a special hope" that it "will contribute to the broader public discourse about the interplay between the United States Constitution and international law, as well as between the United States and international institutions generally." In writing the forward to this book, Judge Sotomayor has reopened debate on this issue and seems to place herself on the side of those favoring the reference to foreign law in US Constitutional jurisprudence.

In her forward, Judge Sotomayor not only implicitly accepts the practice of citing foreign law, she goes even goes farther. She speaks of the need to learn about the "factors outside of the law" that influence the decisions of international judges. Thus, Judge Sotomayor will bring not just the "empathy" that Obama promises and her intuition as a Latina woman to the Supreme Court bench, but also the combined experience of judges that serve on regional and global tribunals, which even by the admission of the authors of The International Judge (p. 225) have sometimes rendered "unpredictable" and "unrestrained" decisions.

I include here the first paragraph of her forward, for reference:

A proposed bill in Congress to prohibit the citation of foreign law in federal judicial decisions gave rise in recent years to a heated and extensive dialogue among American judges, academics, and commentators on the appropriate role that foreign and international law should play in American constitutional adjudication. But the question of how much we have to learn from foreign law and the international community 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 from their male and female judges about the process of judging and the factors outside of the law that influence our decisions. This book makes an invaluable contribution to the efforts to answer that question by laying bare the institutional, political, moral, ethical, and legal concerns that animate the work of international courts and their judges.

Nothing in Judge Sotomayor's judicial record would seem to directly indicate how she might apply foreign law in a US Constitutional case; however, it may be worth noting her vigorous dissent in Croll v. Croll (229 F.3d 133 [2^nd Cir 2000]), which provides a hint regarding how Judge Sotomayor applies foreign law in US cases. This case concerned the proper application of an international convention to a cross-border child custody battle. In her dissent in Croll, Judge Sotomayor advocated a judicial interpretation which she asserted was favored by a majority of international courts, but which was rejected by the majority in Croll (which also reviewed the case precedent from other signatories to the convention in question, but found no consensus).

Judge Sotomayor's dissent in Croll has attracted praise internationally. In the opinion for an appellate case heard before the House of Lords in the UK, Lord Hope quotes Professor Linda Silberman as follows:

"A perceptive dissent by Judge Sotomayor in Croll was critical of her colleagues for applying American concepts instead of international and Convention norms. She emphasized the object and purpose of the Convention and explained that the official history and commentary on the Convention 'reflect a notably more expansive conception of custody rights' that US/English dictionaries."

Lord Hope points out that Judge Sotomayor's dissent has been cited by a Court in South Africa and that her position is consistent with that taken by many courts around the world.

Croll is not necessarily the only case where Judge Sotomayor has applied foreign or international law in a manner worth studying; with thousands of reported decisions and dissenting opinions to her name, Judge Sotomayor's record needs to be carefully scrutinized on this point.

As mentioned above, the issue of foreign law and US Constitutional jurisprudence has been hotly debated. Many conservatives were outraged at the ease with which the US Supreme Court incorporated world opinion and the rulings of foreign courts into its decisions in Lawrence v. Texas and Roper v. Simmons. In Lawrence, the majority invalidated a Texas sodomy law, holding that the "Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life." This case is undoubtedly the single biggest victory that the gay and lesbian movement have ever won in the Supreme Court. The Court's decision seems to have hinged, at least in part, on foreign legal precedent. In the majority opinion, the Court cites the European Court of Human Rights and finds persuasive the fact that other countries have affirmed "the protected right of homosexual adults to engage in intimate, consensual conduct." The Court in Lawrence concluded that "the right that the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries."

In Roper, the Court overturned a Missouri statute allowing capital punishment of juvenile offenders (in this instance, a 17 year old who "planned and committed a capital murder"). In rendering its decision, the Court took note of "the overwhelming weight of international opinion against the juvenile death penalty" and found the judicial precedent of the United Kingdom to be of "particular relevance" to the case.

The concern of some conservatives was so great following Lawrence and Roper that bills were introduced in Congress to ban the use of foreign law by US Federal courts. Some conservative academics talked of the need for a Constitutional amendment to prohibit the practice. One senior staff member for Senator Thomas Coburn of Oklahoma reportedly even called for the impeachment of Federal judges who cite foreign law. Senator Coburn later distanced himself from these comments, but continued to express serious concern over this issue, asking Justices Roberts and Alito point blank during their confirmation hearings about the use of foreign law in deciding US cases.

No one has been more vocal in opposing this practice than Justice Scalia. Although he has spoken against action by Congress to limit citations of foreign law by Federal courts, his dissenting opinions in Roper and Lawrence establish Scalia as the leading critic of this practice on the Court. For example, in his dissent in Lawrence, which was joined by Chief Justice Rhenquist and Justice Thomas, Scalia wrote that "Constitutional entitlements do not spring into existence" because some states and foreign nations decriminalize conduct. Scalia dismissed the majority's discussion of foreign views as "meaningless" but "dangerous" dicta. In Roper, Scalia accused the Court of giving "center stage" to the "views of other countries and the so-called international community" rather than to the views of the American people. An Appendix to the majority's opinion shows that twenty states allowed capital punishment for juvenile offenders. Scalia wrote, "the basic premise of the Court's argument-that American law should conform to the laws of the rest of the world-ought to be rejected out of hand."

The debate over this issue has largely followed ideological lines. While Justice Scalia and others have openly opposed the citation of foreign precedent in Constitutional cases, liberal justices have supported this approach. For example, in recent comments reported in the New York Times, Justice Ginsburg states, "I don't understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law." "Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" she asks.

For social conservatives in particular, the stakes at play in the nomination of Judge Sotomayor are high. The appointment of a liberal Justice who rules based on "empathy" and global "factors outside of the law" will surely not be a positive development. If confirmed, would Justice Sotomayor join, or lead, Court majorities that cite foreign law in adopting landmark precedents on divisive social issues, such as same-sex marriage? We don't know at this point. Let's hope that conservative senators demand answers during Judge Sotomayor's confirmation hearings. If conservative lawyers make enough of a "BROUHAHA," they surely will!

1 Hague Convention on the Civil Aspects of International Child Abduction, as implemented by International Child Abduction Remedies Act (ICARA)

² Cited as Linda Silberman, "Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence" (2005) 38 U C Davis Law Review 1049; numerous other US law review articles have discussed the Croll case and Judge Sotomayor's dissent.

³ In Re D (A Child) [2007]1 All E.R. 783 (HL) para 15 (Lord Hope)

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M. Scott Bradshaw has extensive experience with foreign law as a practitioner. He worked in the Moscow office of Baker & McKenzie and has served in international legal roles for multinational corporations. During last year's presidential campaign, his articles on Obama's stand on abortion and gay rights ran on up to 100 Christian and conservative websites.

The views and opinions expressed in this article are those of the author and not necessarily of the Republican National Lawyers Association, its staff, leadership or membership.