President Obama's selected Sonia Sotomayor to fill the upcoming vacancy on the Supreme Court. Anchor Lisa Mullins speaks with David Stras, a former clerk for Supreme Court Justice Clarence Thomas, about the selection, and about Judge Sotomayor's use of international legal precedent in her work.
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LISA MULLINS: I'm Lisa Mullins, and this is The World. Barack Obama today exercised one of the most significant powers the Constitution grants a President. He introduced his first selection for the US Supreme Court.
PRESIDENT OBAMA: I have decided to nominate an inspiring woman who I believe will make a great justice, Judge Sonia Sotomayor of the great state of New York.
MULLINS: Judge Sotomayor will soon get a pretty good grilling from Justices about her record and her judicial philosophy. One subject that she's sure to be asked about is how inclined she would be to defer to international law as she's deciding cases that come before the US Supreme Court. David Strauss was a clerk for Supreme Court Justice Clarence Thomas. He now teaches Law at the University of Minnesota. Why is this even an issue? I mean, what are the broad outlines of this debate on the US Supreme Court?
DAVID STRAUSS: Well, it comes down to a matter of judicial philosophy, so conservatives believe that when you're interpreting the US Constitution or when you're interpreting US statutes that you limit yourself to the text and to American legal materials. You don't concern yourself with what other countries have done in particular because they're governed by different Constitutions and different laws.
MULLINS: So why was anyone even citing those? I mean, why is it appropriate for Justices on the US Supreme Court?
STRAUSS: There's certain cases where it happens. For example, the Cruel and Unusual punishment clause in the 8th Amendment seems to be a common place where they look to international law. And the viewpoint of those who cite that law basically say, â€œLook. This is instructive. This is helpful. This shows us what other countries are doing with respect to the death penalty. You know, we're supposed to be a leader out there. We should take into account what other countries are doing.â€ And so that's why there's some tendency by more liberal members of the Court to cite that type of law.
MULLINS: So where does Sonia Sotomayor fall in this debate?
STRAUSS: I don't think we know for sure. There's a couple cases that are â€“ one case in particular that's helpful, Krohl vs. Krohl. Which was a Second Circuit case obviously, since she sits on the second circuit, where the basic point that they were trying to interpret was what was a right to custody under the International Convention on Child Abduction? She said, â€œWe should look to other countries and how they define right to custody,â€ whereas some of the other judges on the panel said, â€œlet's look -- since this is a treaty that we're interpreting in the United States, let's look at American definitions of right to custody to figure out how to apply this particular phrase.â€
MULLINS: The other side of this issue of the Supreme Court taking into account non-US judicial opinions as it forms its own opinions domestically, is foreign courts and whether or not they pay attention to the US Supreme Court. So right now, how influential is the US Supreme Court around the world, and how might that influence be affected by the confirmation of Sonia Sotomayor?
STRAUSS: Conservatives say, â€œWell, we're probably not all that influential as a Supreme Court abroad, and that's how we like it. For the same reasons we don't cite international law, we don't want them citing our opinions either.â€ But obviously some more liberal members of the Supreme Court have a different viewpoint. Justice Ginsburg has been very willing to cite international law particularly in those 8th Amendment cases I've talked about. Judge Sotomayor appears to be very friendly. She's written a forward for a book on international judges. And so perhaps that's going to increase the influence of the Supreme Court internationally.
MULLINS: I wonder if you know whether or not that she's of the opinion that American legal influence abroad is waning, considering it was once a major bully pulpit for the US?
STRAUSS: Yeah, and I'm not sure of the answer to that. I mean, that is certainly one of the considerations that judges have cited in talking about and using international law is that we need to maintain sort of a leadership capacity and the judicial system, and that includes courts abroad. So I imagine that plays into it, but I don't think she's spoken openly or publicly about â€“ I don't even think she's spoken openly or publicly about the citation of foreign law. We can only glean this from her record and from the opinions that she's written.
MULLINS: All right. David Strauss is a former clerk for the Supreme Court Justice Clarence Thomas. He studies the Supreme Court from the University of Minnesota where he's a Professor of Law. Thanks a lot, David.
STRAUSS: Thank you. I appreciate it.
MULLINS: Sonia Sotomayor spoke immediately after President spoke today. Here's how she concluded those remarks.
SOTOMAYOR: I hope that as the Senate and American people learn more about me, they will see that I am an ordinary person who has been blessed with extraordinary opportunities and experiences. Today is one of those experiences.