SENATOR JOHN CORNYN ON SUPREME COURT CITATIONS TO TREATIES AND DECISIONS OF FOREIGN COURTS

Via Howard Bashman, we note that Senatory John Cornyn (R-TX) gave a speech on the Senate floor this week in which he attacked Democrats for their strategy on judicial nominees, using extensive quotes from the internal Democratic strategy memos that might just get a former Hatch staffer in a whole lot of trouble. If Cornyn is so outraged about these memos, then I'm sure that he'll support a full opening of all Senate Republican internal files on the judicial confirmation process -- and, heck!, why stop there? Why not make all internal deliberations on the nomination process from the side of the executive branch public? I'd also love to see internal memos from Republican Senators Jesse Helms and Jeff Sessions from the 1990s.

But these puerilities aside, Senator Cornyn made some interesting claims at the end of his speech, where he was indicating why the nominations battle is so important. Here is a key passage, starting about 14 minutes in. In part of what's below, Senator Cornyn is reading from a "recent article":

Justice Breyer recently found useful in interpreting the American Constitution decisions by the Privy Council of Jamaica and the Supreme Court of India and Zimbabwe. Later, [. . .] Justice Kennedy of the United States Supreme Court cited a decision by the European Court of Human Rights in a decision handed down this month. Justice Ginsburg joined by Justice Breyer cited a decision in the International Convention on the Elimination of All Forms of Racial Discrimination in a recent case. And so it goes on and on. And I think that anybody [paying attention would have to ask the question] 'What is going on? What would James Madison or Alexander Hamilton, Thomas Jefferson, what would our Founding Fathers say about what is happening in our federal judiciary today?' And I think we all know the answer. They would be, they would be shocked. And we should be shocked as well.

Let's look a little closer at the examples that Senator Cornyn cites. Given that he is concerned with the politicization of the nominations process, and with what he sees as Democratic attempts to "smear" President Bush's judicial candidates, let's see if he is fair to the Justices he mentions on the floor of the U.S. Senate.

First, there's Senator Cornyn's claim that "Justice Breyer recently found useful in interpreting the American Constitution decisions by the Privy Council of Jamaica and the Supreme Court of India and Zimbabwe." The case that Senator Cornyn is referring to is Breyer's dissent from a denial of certiorari in the case of Knight v. Florida. The Court was asked to consider whether executing a prisoner who had spent 20 years on death row was cruel and unusual punishment. Justice Breyer wrote to emphasize that he disagreed with the denial for a variety of reasons. He quoted Supreme Court decisions going back to 1890 that indicated that delay could be seen as cruel and unusual (at least as expressed through the words of 100% red-blooded American Supreme Court Justices). Continuing in the same vein, Breyer made the offending references to Jamaica, India, Zimbabwe and the European Court of Human Rights. He then noted that the Supreme Court of Canada and the UNHCR had reached different conclusions. And then there are the following two paragraphs:

Obviously this foreign authority does not bind us. After all, we are interpreting a “Constitution for the United States of America.” Thompson v. Oklahoma, 487 U.S. 815, 868, n. 4 (1988) (Scalia, J., dissenting). And indeed, after Soering, the United States Senate insisted on reservations to language imposing similar standards in various human rights treaties, specifying, for example, that the language in question did not “restrict or prohibit the United States from applying the death penalty consistent with the … Constitution, including any constitutional period of confinement prior to the imposition of the death penalty.” 136 Cong. Rec. 36192—36199 (Oct. 27, 1990) (U.S. Senate Resolution of Advice and Consent to Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).

Nonetheless, the treaty reservations say nothing about whether a particular “period of confinement” is “constitutional.” And this Court has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances. In doing so, the Court has found particularly instructive opinions of former Commonwealth nations insofar as those opinions reflect a legal tradition that also underlies our own Eighth Amendment. Thompson v. Oklahoma, supra, at 830—831 (opinion of Stevens, J.) (considering practices of Anglo-American nations regarding executing juveniles); Enmund v. Florida, 458 U.S. 782, 796—797, n. 22 (1982) (noting that the doctrine of felony murder has been eliminated or restricted in England, India, Canada, and a “number of other Commonwealth countries”); Coker v. Georgia, 433 U.S. 584, 596, n. 10 (1977) (observing that only 3 of 60 nations surveyed in 1965 retained the death penalty for rape); Trop v. Dulles, 356 U.S. 86, 102—103 (1958) (noting that only 2 of 84 countries surveyed imposed denationalization as a penalty for desertion). See also Washington v. Glucksberg, 521 U.S. 702, 710, n. 8, and 718—719, n. 16 (1997) (surveying other nations’ laws regarding assisted suicide); Culombe v. Connecticut, 367 U.S. 568, 583—584, n. 25, and 588 (1961) (considering English practice concerning police interrogation of suspects); Kilbourn v. Thompson, 103 U.S. 168, 183—189 (1881) (referring to the practices of Parliament in determining whether the House of Representatives has the power to hold a witness in contempt). Willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a “decent respect to the opinions of mankind.” (emphasis added)

So Justice Breyer was saying that it has been a custom on the U.S. Supreme Court to look at the practices of other former Commonwealth countries in order to interpret our own constitutional traditions. I cannot understand why this would be objectionable. Justice Breyer's point here is not that decisions from other courts have precedential value as such, but rather that, in interpreting a contested constitutional clause, it can make sense to look for interpretations in roughly similar situations from countries that have similar legal traditions, and that the Court has not been above such comparisons in the past.

Similarly, Senator Cornyn refers to Justice Kennedy's citation of a landmark European Court of Human Rights case in his decision in Lawrence v. Texas, which struck down a Texas statute that criminalized same sex sodomy.

Let's look at what Justice Kennedy actually said with respect to this European Court of Human Rights case:

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

In other words, Justice Kennedy was exercising a kind of internal critique of the argument presented by Chief Justice Burger in Bowers v. Hardwick that

[d]ecisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.

If condemnation is so firmly rooted in "Western civilization," Justice Kennedy asks, why did the European Court of Human Rights (surely part of "Western civilization") reach a different conclusion a half-decade before Bowers was decided? Chief Justice Burger is unaware of this case, apparently. Justice Kennedy was not saying that the decisions of the European Court of Human Rights was binding; rather, he was using their landmark decision to call into question Justice Burger's interpretation of Western civilization. Seems fine to me. The problem here seems rather to be Chief Justice Burger's faulty understanding of "Western civilization."

Finally, when Senator Cornyn mentions that Justices Ginsburg and Breyer refer to the International Convention on the Elimination of All Forms of Racial Discrimination, he is referring to their concurring opinion in Grutter v. Bollinger, in which they write the following:

The Court’s observation that race-conscious programs “must have a logical end point”. . . accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994. . ., endorses “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.” . . . But such measures, the Convention instructs, “shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.”

So Ginsburg and Breyer refer to a treaty that the U.S. has ratified and that helps to illuminate one of the statements made by the majority (a controversial statement in a controversial case that turned back a constitutional challenge on the University of Michigan Law School's affirmative action program). Again, I can't figure out what is wrong with the reference here. The concurrence is pointing out an agreement between the Court and international understandings on affirmative action, as expressed in a treaty that the U.S. itself has ratified. Justices Gisburg and Breyer are not saying that the treaty itself requires affirmative action.

Senator Cornyn cites three opinions that he disagrees with. He's not alone. It's surely not a coincidence that Justices Thomas and Scalia disagreed strongly with the opinions that Senator Cornyn cites here. In case we needed to be reminded of that fact, there may be a Supreme Court nomination sometime in the next few years, and President Bush has promised to nominate Justices like Thomas and Scalia, not like Kennedy, Ginsburg and Breyer. But Senator Cornyn does his listeners a disservice when he attacks Justices he disagrees with -- and with respect to cases that he thinks should have gone the other way -- because they are willing to refer to foreign sources of law in their opinions. Senator Cornyn seems to imply that these Justices have argued that such foreign sources of law help to determine outcomes. A closer look at the context of the citations reveals the very limited sense in which that might be said to be true.

Again we should ask, so what? If we're going to ask what "our traditions are" or what "Western civilization" is, surely judges are within the realm of common sense if they ask what other courts have said about the practices in question. Surely there is no harm in pointing out a congruence between a Supreme Court holding and a treaty that the U.S. has already ratified (and that the Senate that Senator Cornyn says he wants to defend has thus already expressed its opinions on!). I won't mar the argument with references to the deplorable parochialism of an argument that presumes that American judges are only supposed to talk about American decisions, or with references to the political constituencies that are likely to find such a parochialism attractive. I don't need to. Previous cases themselves look beyond our borders, and judges are on firm ground if they continue that practice.