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Key Excerpt: Kyl and Sotomayor on Foreign Law

Courtesy of CQ Transcriptions

SEN. KYL: You're familiar -- this goes to the foreign law issue -- you're familiar with the difference in the treatment of foreign law by the U.S. Supreme Court in Kennedy v. Louisiana on the one hand and in Roper v. Simmons on the other.

In Roper the court ruled it was cruel and unusual to apply the death penalty and drew substantially on foreign law. In Kennedy v. Louisiana, an adult was convicted of raping an 8-year-old child, and the same five justices who wrote the opinion in Roper ruled that it was cruel and unusual to sentence the individual to death, but cited no foreign law whatsoever.

Some have said that a discussion of foreign law was left out of the Kennedy case because it actually cut against the majority's opinion. What do you think?

JUDGE SOTOMAYOR: I can't speak for why they did. I can only do what you did, which is to describe what the courts did in what they said. It's impossible for me to speak about why a particular court acted in a particular way or why a particular justice analyzed an issue outside of what the opinion says.

KYL: I'll just tell you, my view is it kind of tells me that if the court can find some foreign law that supports its opinion, it might use it. If the opinion is on the other side, then it doesn't.

In my view, that's one of the problems with using foreign law. And I gather from what you said earlier, you don't think the court should use foreign law, either, except in cases of treaty and other similarly appropriate cases.

SOTOMAYOR: I do not believe that foreign law should be used to -- to determine the result under constitutional law or American law, except where American law directs.

KYL: Thank you very much. Thank you, Judge.

Read the full exchange between Sen. Kyl and Judge Sotomayor here.

By Washington Post editors  |  July 16, 2009; 1:10 PM ET
Categories:  Hearings , Supreme Court , Topics: Foreign Law  
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