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Opinion: Sotomayor hearings: Foreign laws

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Should foreign laws guide American courts?

The question was posed by both a Democrat and Republican in today’s confirmation hearing. Sen. Jon Kyl (R-Ariz.) suggested that Sonia Sotomayor might look to foreign laws for guidance on novel legal questions, a practice that is disdained by many conservatives. Supreme Court Justice Antonin Scalia has spoken out against the practice, while his more liberal colleague, Justice Ruth Bader Ginsburg, has called for a more “internationalist” legal philosophy.

Kyl was referring to a speech Sotomayor gave to the American Civil Liberties Union of Puerto Rico earlier this year, in which she said:

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“International law and foreign law will be very important in the discussion of how we think about the unsettled issues in our legal system. It is my hope that judges everywhere will continue to do so because with the American legal system, we’re commanded to interpret our law as best we can. And that means looking to what other, anyone has said to see if it has persuasive value.’

Sen. Charles E. Schumer (D-N.Y.) raised the same issue later, and Sotomayor quickly attempted to put the concern aside. Although foreign law can be informative, it cannot guide or trump U.S. law, she said.

--Kate Linthicum

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