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Foreign Law in the U.S.?
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CITING FOREIGN LAW
The issue: One of the fiercest debates among legal scholars today is the degree to which it is proper for U.S. judges to cite foreign case law in making decisions. Conservatives, notably Supreme Court Justice Antonin Scalia, tend to take the view that international agreements and laws should not apply, as they derive from different constitutional systems, while liberals, notably Justice Ruth Bader Ginsburg, tend to argue that a more "internationalist" legal philosophy is needed.
Sotomayor's record: The 2000 case Croll v. Croll involved the application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Mrs. Croll had removed her child from Hong Kong to the United States in violation of a Hong Kong court's joint custody order and Mr. Croll filed a petition under the Hague Convention seeking the child's return. The Second Circuit Court of Appeals, where Sotomayor currently sits, sided with the mother, ruling that the convention did not give Mr. Croll the right to determine the child's place of residence.
Sotomayor dissented, not only arguing for a more expansive interpretation of the treaty, but also referring to foreign case law to make her argument. "Sotomayor went through the foreign cases quite extensively and found that the view she was taking was consistent with what had been found by foreign courts. She paid a lot more attention to them than the majority had," said attorney and SCOTUSBlog co-founder Amy Howe.
This suggests that Sotomayor sides with those who believe that foreign case law should at least be considered when applicable. Howe, whose firm is currently arguing a largely identical case before the Supreme Court, is thrilled. "We think she's brilliant," she said.
INTERNATIONAL LEGAL INSTITUTIONS
The issue: Liberals and conservatives also argue over the degree to which U.S. courts are bound by international treaties and/or rulings by international courts. The argument came to a head in the 2008 Supreme Court case Medellin v. Texas, in which a Mexican citizen appealed his U.S. death row conviction on the grounds that he was not informed by police of his right to contact the Mexican embassy under a preexisting treaty on consular relations. The International Court of Justice (ICJ) sided with Medellin, but the U.S. Supreme Court found that international treaties cannot be considered domestic law unless enacted by Congress and that the ICJ's ruling was irrelevant.
Sotomayor's record: The justice's dissent in the Croll case does seem to indicate that she sides with the court's liberal wing in applying international law and treaty obligations to relevant cases. Additionally, her 2000 dissent in the case of Koehler v. Bank of Bermuda argues that citizens of Bermuda should be considered "subjects of a foreign state" based on a "contemporary understanding of the relationship between the United Kingdom and its Overseas Territories."
In a 2007 forward to, The International Judge, a book on the role of judges in international law, Sotomayor took what seems to be a positive view toward the construction of international courts and legal institutions. "This book provides a nuanced roadmap for [judges in international courts], as well as for judges from established legal systems, while we all attempt to cobble together a culture of justice-seeking in a changed world," she wrote.
"It does seem that she thinks more globally," Howe said. "She represented a number of companies trying to do business overseas when she was a private litigator so she does seem to have a broader international outlook."
THE "GLOBAL GAG RULE"
The issue: The Mexico City Policy, also known as the global gag rule, has been a political football in the U.S. abortion debate for 25 years, with the international development and women's health communities caught in the middle. The rule to prohibit federal funding of organizations that provide or promote abortion was first instituted under Ronald Reagan, then suspended under Bill Clinton, revived under George W. Bush, and recently killed again by Barack Obama.
Critics charge that the rule prohibits free speech and shuts off funding to organizations that also promote other types of birth control. Reproductive rights groups have challenged the rule on First Amendment and due process grounds.
Sotomayor's record: Sotomayor wrote the majority opinion in the 2002 case, Center for Reproductive Law and Policy v. Bush, in which the CRLP challenged the policy on the grounds that it prevented the center from necessary collaboration with local NGOs. Sotomayor dismissed the plaintiff's appeal "not on the merits ... but for lack of constitutional standing," stating that "the Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."
The opinion gives little indication of Sotomayor's view on the policy itself, but since it is one of the only cases Sotomayor has heard that deals with abortion, it is likely to come up during her confirmation hearings.
DETAINEES AND EXECUTIVE PRIVILEGE
The issue: One of the most crucial areas in which the judicial branch has recently affected U.S. foreign policy is the handling of detainees taken prisoner in the war on terror. The 2006 case Hamdan v. Rumsfeld found that the military commissions procedure set up by the Bush administration to try Guantánamo Bay detainees violated the Military Code of Justice and the Geneva Convention and that the administration did not have authority to set up the tribunals without congressional authorization. The 2008 case Boumedienne v. Bush found that the detainees were entitled to habeas corpus rights on the U.S. constitution.
Although President Obama has reformed the military commissions process and plans to close Guantanamo, he has continued the Bush administration practice of using the "state secrets privilege" to prevent suits by those who claim they were illegally detained and abused. Further legal challenges to this position are likely.
Sotomayor's record: We are likely to get a good indication of Sotomayor's views on detainee matters soon, when the Second Circuit Court rules on the case of Maher Arar, a Canadian citizen who was allegedly sent to Syria by U.S. officials to be detained and tortured. A Canadian Court has already ruled in his favor, but the Department of Justice is arguing that such lawsuits are not justified. Sotomayor was tough in her questioning of the DOJ's lawyer but she could have just been doing due diligence. Expect the Second Circuit's forthcoming decision to be closely scrutinized for clues on how Sotomayor might rule on the Obama administration's prosecution of the war on terrorism.
The issue: The Sumpreme Court has recently ruled on a number of cases involving illegal immigration law, a number of which could pave the way for more comprehensive immigration reform. Most recently, the court ruled this month that an illegal immigrant who used a fake Social Security number to obtain work could not be charged with identity theft, a crime that carries a two-year minimum sentence. The court has also ruled in recent years that immigrants cannot be detained indefinitely if their home country (in this case Cuba) would not take them back and that immigrants cannot be deported for crimes that are felonies under state, rather than federal law.
Sotomayor's record: Hopes are high among immigration reformers that they may have an advocate in the court's first Hispanic justice. Based in New York City, the Second Circuit Court frequently hears immigration cases. Perhaps surprisingly, Sotomayor's decisions have tended to side with authorities against immigrants seeking to overturn deportation orders.
Howe cautions against reading too much into these decisions. "The immigration statutes are stacked very heavily against the immigrants, and she's usually just applying the rule," she said. "Overall she's probably well within the mainstream when it comes to immigration issues."