On the recordSeptember 14, 2010
I am concerned about Ms. Stranch's nomination to the court of appeals because, like many recent judicial nominees, she embraces the use of foreign law by the courts, which is contradictory to the Constitution, the judicial oath, and the intent of our Founders. I reached this conclusion after carefully reviewing her record, her hearing testimony, and her responses to written questions following her hearing. For example, in response to my question asking her whether it is ever proper for judges to rely on foreign or international laws or decisions in determining the meaning of the Constitution, Ms. Stranch admitted she believes using foreign law in limited circumstances is appropriate. First, she stated that she is "aware of only a very few cases in which [the Supreme Court] has referenced non-U.S law in a majority opinion, including Roper [v Simmons]," but, then she continued: "In these few cases, references to foreign law were made for such purposes as extrapolating on societal norms and standards of decency, refuting contrary assertions or confirming American views. None of these cases used foreign or international law to interpret a constitutional text. The Supreme Court's restraint on this issue is a model for the lower courts."
