Saturday, May 30, 2009


Opinio Juris » Blog Archive » Not a Transnationalist. Some (Really) Early Thoughts on Judge Sotomayor
Not a Transnationalist. Some (Really) Early Thoughts on Judge Sotomayor

by Julian Ku

As a judge in the New York federal courts over the past 15 years, both at the district and appellate level, U.S. Supreme Court nominee Sonia Sotomayor has had a fair number of cases involving the application of international law. She has never ruled on an Alien Tort Statute case, but my very quick scan suggests that, whatever else her critics can say, her judicial record does not suggest she will be a particularly “transnationalist” justice.

Closet Sovereigntist?

United States v. Ni Fa Yi, 951 F. Supp. 42 (S.D.N.Y. 1997), involved a defendant’s challenge to his prosecution under the Hostage Taking Act, and the International Convention Against the Taking of Hostages. While ruling for the government, Judge Sotomayor went out of her way to reject the government’s argument that the fact that the criminal statute was enacted to implement treaty obligations should automatically satisfy judicial scrutiny of the statute’s constitutionality. ”The Court agrees with defendant, however, that this begs the question: “[N]o agreement with a foreign nation can confer power on the Congress, or on any branch of Government, which is free from the constraints of the Constitution.” (Citing Reid v. Covert, 353 1, 16 (1957)).

Deferential to Executive Foreign Affairs Power?

European Commission v. RJR Nabisco, 355 F.3d 123 (2d Cir. 2004) involved an attempt by the European Commission to bring a RICO action in U.S. courts against tobacco companies for lost tax revenues. Invoking the common law “revenue rule”, Judge Sotomayor barred the action on the grounds that the suit essentially requires US courts to enforce European tax laws. In barring the action, though, she did leave open the possibility of executive intervention in the litigation as a mechanism to lift the bar imposed by the revenue rule. Interestingly, this was also part of the theory for the Supreme Court’s eventual decision to relax the revenue in another context, in an opinion by Justice Thomas. And it was the lack of intervention by the executive that led her to continue to bar the suit, even after the Supreme Court had remanded her earlier decision.

Staying Neutral on the Relationship Between International law and the Supremacy Clause

In Beharry v. Ashcroft, 339 F.3d 51 (2d Cir 2003), Judge Sotomayor went out of her way to avoid opining on a lower court decision (by Judge Jack Weinstein) that casually gave customary international law the same status as federal legislation under the Supremacy Clause. In reversing the lower court on statutory grounds, Judge Sotomayor offered this gentle non-opinion: “Nothing in our decision to reverse on other grounds the judgment of the district court should be seen as an endorsement of the district court’s holding that interpretation of the INA in this case is influenced or controlled by international law.”

Similarly, in Center for Reproductive Law v. Bush, 304 F 3d. 183 (2d Cir. 2002), in rejecting a lawsuit challenging the ban on funding for overseas abortions under constitutional and customary international law, Judge Sotomayor disposed of the customary international law argument in a single footnote: “As plaintiffs’ claims based on customary international law are substantively indistinguishable from their First Amendment claims, they are dismissed on the same ground. We express no view as to whether those claims are otherwise viable.”

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