—Stefanus Hendrianto, Boston College
In the last five confirmation hearings in the United States Senate for nominees to the U.S. Supreme Court (Roberts, 2005; Alito, 2006; Sotomayor, 2009; Kagan, 2010; and Gorsuch, 2017), the role of comparative constitutional law in the American constitutional system was one of the main questions. Very recently, in the confirmation hearing of Justice Joan Louise Larsen, of the Michigan Supreme Court, to be a United States Circuit Judge for the Sixth Circuit on Sep 6, 2017, the Senate Judiciary Committee also raised the issue of comparative inquiry. The opposition to comparative law, however, has been confused by the conflation of international law and comparative law and by a lack of careful distinction between various sources of international law. Moreover, the questions during the hearing seemed to be artificial as the Senators did not dive into the depth of any nominee’s thought on comparative inquiry.
Let’s revisit the confirmation hearing of Justice Gorsuch earlier this year. On March 22, 2017, the third day of the confirmation hearing, Senator Ben Sasse of Nebraska asked Justice Gorsuch, “as a sitting Supreme Court Justice with a task upholding the Constitution, is it ever appropriate to cite international law, and if so why?”[1] There are two very different types of law at issue here: international law and foreign law (through comparative inquiry). These two very different types of law are sometimes conflated by politicians and commentators, which has confused the debate on this subject. It was not clear during the hearing whether Senator Sasse really meant international law per se, foreign law, or both. Justice Gorsuch in his answer rightly distinguished international law and foreign law, and argued that they should receive different treatment. In a nutshell, he opposes the use of foreign law in U.S. constitutional interpretation, but he recognizes a variety of different types of international treaties or agreements that create binding international obligations for the United States.[2]
About a week ago, in the confirmation hearing of Judge Joan Larsen, Senator Orin Hatch of Utah mentioned that in recent years, one of the important issues related to the nominee’s judicial philosophy is “whether judges may use foreign law to interpret domestic law such as the Constitution.”[3] Senator Hatch went on to cite Justice Larsen’s 2004 law review article titled Importing Constitutional Norms from a “Wider Civilization”[4] and asked Justice Larsen to elaborate on her argument for the use of “international law” in domestic legal interpretation. Again, here, Senator Hatch conflated international law and comparative law. He began his question with a narrative on “foreign law,” but then he asked Justice Larsen to explain her position on the use of “international law.” For the record, Justice Larsen in her article made a clear distinction between the use of foreign law and international law in domestic constitutional interpretation.
Justice Larsen in her answer, however, focused primarily on the use of foreign law; she cited Washington v. Glucksberg,[5] which exemplifies the “empirical” use of comparative experience. In Glucksberg, the Court was asked to decide whether the State of Washington’s ban on physician-assisted suicide violated the Due Process Clause of the Fourteenth Amendment. The Court then looked to the Netherlands, which at that time was the only place where experience with physician-assisted suicide and euthanasia had yielded empirical evidence.[6] Justice Larsen argued that “the Court looked at the practice of Netherlands, not to determine whether or not our law should follow the Netherlands, but rather to figure out whether or not a particular result would ensue.”[7]
The hearings told us little to nothing about what Justice Gorsuch and Justice Larsen actually think about the use of international law and foreign law. The exchanges were very brief; less than two minutes for Justice Gorsuch and less than three minutes for Justice Larsen. If Senators really wanted to know where the nominee stood on comparative inquiry and the use of international law, they should engage in more meaningful discussion with nominees on the subject matter. For instance, if Senator Sasse really wanted to know where Gorsuch stood on comparative inquiry, he should invite Justice Gorsuch to revisit his book The Future of Assisted Suicide and Euthanasia,[8] in which he made a comparison between the Dutch and Oregon experience on assisted suicide. Similarly, Senator Hatch should have insisted that Justice Larsen say whether she agreed with some commentators – which she cited in her law review article – who have argued that, “comparative or international law, especially in the field of human rights, should apply substantive content to the Constitution because the Framers intended or understood that it would be so.”[9]
When the Senate Judiciary Committee grilled Justice Larsen, Professor Amy Barret of Notre Dame Law School was sitting next to her as a nominee to be a United States Circuit Judge for the Seventh Circuit. Barret’s religious convictions featured prominently during the confirmation hearing.[10] But nobody pays attention to her 2013 law review article, in which she wrote that judges “must decide whether the laws and traditions of foreign countries are fair game or out of bounds in the interpretation of our Constitution.”[11] Rather than questioning her Catholic faith, it would have been better for Senator Feinstein or Senator Durbin to ask Barret on her thought on the value of precedent from foreign countries.
Obviously, the confirmation hearing offered little substance on the nominees’ views on comparative law and international law. With senators simply wanting to go through their check list, Justice Elena Kagan’s two decade old law review article was still correct in pointing out that the hearings generally play “little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.”[12]
Suggested citation: Stefanus Hendrianto, The Superficiality of U.S. Confirmation Hearings and the Issue of Comparative Constitutional Law , Int’l J. Const. L. Blog, Sept. 21, 2017, at: http://www.iconnectblog.com/2017/09/the-superficiality-of-us-confirmation-hearings-and-the-issue-of-comparative-constitutional-law/
[1] “Gorsuch Confirmation Hearing, Day 3, Part 1.” C-SPAN.org. March 22, 2017. Accessed September 15, 2017. https://www.c-span.org/video/?425536-1%2Fsupreme-court-nominee-judge-neil-gorsuch-defends-originalist-stance-rulings.
[2] Id.
[3] “Senate Judiciary Committee held a confirmation hearing for President Trump’s nominees to the Sixth and Seventh Circuit Courts of Appeals, Sep 6 2017.” C-SPAN.org. September 6, 2017. Accessed September 15, 2017. https://www.c-span.org/video/?433501-1%2Fsenate-judiciary-committee-takes-judicial-nominations.
[4] Joan L. Larsen, “Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation,” 65 Ohio St. L.J. 1283 (2004)
[5] 521 U.S. 702 (1997).
[6] Id. at 785 (Souter, J., concurring in the judgment).
[7] “Senate Judiciary Committee held a confirmation hearing for President Trump’s nominees to the Sixth and Seventh Circuit Courts of Appeals, Sep 6 2017.” C-SPAN.org.
[8] Neil M. Gorsuch. The Future of Assisted Suicide and Euthanasia. (Princeton, NJ: Princeton Univ. Press, 2010).
[9] Larsen, Importing Constitutional Norms from a “Wider Civilization,” 1309 – 1310.
[10] Noah Feldman. “Feinstein’s Anti-Catholic Questions Are an Outrage.” Bloomberg.com. September 11, 2017. Accessed September 15, 2017. https://www.bloomberg.com/view/articles/2017-09-11/feinstein-s-anti-catholic-questions-are-an-outrage
[11] Amy Coney Barrett, “Constitutional Foundation: Precedent and Jurisprudential Disagreement,” 91 Tex. L. Rev. 1711, 1718 (2013)
[12] Elena Kagan, “Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919, 941 (1995)
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