July 29, 2009

During the recent hearings before the Senate Judiciary Committee, we heard several senators raise questions about controversial statements by Judge Sonia Sotomayor and her support for the citation of foreign law in Constitutional cases. These Senators raised important issues that deserve careful consideration. Unfortunately, other questions that were not presented may be even more important in understanding Judge Sotomayor's legal philosophy and view of the US Constitution.

Here is a list of troubling facts related to Judge Sotomayor. I have cited authoritative sources to support the points I raise. If you share my concern, please contact your Senators to express your view!

1. During law school, Judge Sotomayor served as the Managing Editor of the Yale Studies in World Public Order ("YSWPO"). This journal was dedicated to a legal philosophy that promotes an extreme global human rights ("human dignity") agenda. It was founded in secret in 1975—only a year before Judge Sotomayor started law school—by a group of ideologically motivated students after the Yale Law School administration refused to support the project.¹ One gets the sense in reading the YSWPO that these early student founders viewed themselves as young, lawyer-revolutionaries, dedicated to remaking national and international institutions and norms through their peculiar judicial philosophy.

2. So, why am I concerned that Judge Sotomayor served as an editor for this law journal, the Yale Studies in World Public Order? Serving as a student editor for any law journal is an honor. Only the brightest students are invited to serve as editors. Normally, law journals are not expressly devoted to any particular ideology; however, the YSWPO law journal was different. It was dedicated to a philosophy that is contrary, in many respects, to America's legal tradition and over 200 years of US Constitutional law. Her voluntary service as its Managing Editor (while she already served as an editor for the more traditional Yale Law Journal) is evidence that she shared that same ideological commitment.

The YSWPO was founded to advance the legal thought of two scholars, Myers S. McDougal and Harold D. Lasswell, who together founded what is known as the "New Haven School" of legal thought. This philosophy was dedicated to advancing a future world order of global human rights based on a perceived set of common global "demands." This school of thought asserted that judges and lawyers should support this agenda, even if this meant rejecting or ignoring legal precedent. In fact, the first volume and first article of this journal states that the New Haven School of thought specifically rejects the validity or relevancy of legal precedent.²

Under this view, judges need not follow legal precedent that does not advance the cause of global human "dignity." This view fits with Judge Sotomayor's support for the citation of foreign law to resolve the "unsettled issues" of US law and her fascination with global tribunals (see my article on "Judge Sotomayor and the Brouhaha over Foreign Law").

The New Haven approach fundamentally contradicts two centuries of US Constitutional law. It also sounds eerily close to Judge Sotomayor's repeated statements about judging with empathy and her praise of judges that make radical, bold decisions. Her statements on these subjects may suggest that she continues to support the legal philosophy of the New Haven school.

3. The Philosophy of McDougal and Lasswell. Lasswell and McDougal believed that the proper role of law and judges was to advance public policy. They rejected any notion that judges can be objective or impartial and, rather, advocated that that law and courts must support a set of values that McDougal and Lasswell believed were the "rising common demands" of mankind. Judge Sotomayor has openly stated that she too does not believe in judicial objectivity; her views on this topic seem similar to those espoused by Lasswell and McDougal.

Unlike the ideas contained in the Declaration of Independence and the Bill of Rights, the "demands" that Lasswell and McDougal sought to advance were not based on natural law or any notion that rights are God-given. A book published in 1980³ by these authors lists over thirty pages of these so-called "rising demands of mankind" and corresponding problems in modern society. Some "demands" listed by Lasswell and McDougal are hardly objectionable (such as "freedom from terrorist activity"!); however, others "demands" represent a social agenda that a majority of Americans do not support . . . like the right to guaranteed income, a right to "merciful euthanasia" and a concept of "United Nations citizenship."

Other rights advocated by Lasswell and McDougal might sound harmless on their face but, at a deeper level, may suggest a vision for government authority that is so obsessed with implementing these common "demands" of mankind, that it tramples more basic liberties like the right to own and control property and freedom of thought and expression. Some of these questionable "demands" include "freedom from wasteful use of resources," "freedom from public and private conditioning" (sounds like the government would to scrutinize what is being taught in homes and private institutions!) and "freedom from misinformation."

The language that Lasswell and McDougal employed to describe their theories and to communicate ideas to other scholars is cumbersome and opaque. For those not immersed in New Haven thought, trying to read their works is akin to learning to read in a new language; it is a slow, challenging process. Recent New Haven scholarship continues this tradition, often so full of jargon and methodological discussions that readers can easily miss subtle clues (and occasional clear statements) that reveal the radical side of New Haven thought.⁴

Lasswell and McDougal believed that lawyers and judges need to act first and foremost as responsible citizens of the worldwide community, rather than of their own countries. They believed that deprivations of these global "demands" in any one country affected all of humanity and that traditional diplomacy of nation-states was inadequate to address these problems (the founders of the YSWPO believed the demarcation between national and global law was no longer viable).

As a solution, Lasswell and McDougal advocated a global view of human rights under which citizens of any country could enforce their global rights in the courts of their own country, or before a global tribunal that would have authority over all countries. They advocated a world judicial system that would enforce the New Haven vision of global human rights.

Some aspects of this philosophy might sound like harmless utopian thought, except for the fact that Myers and Lasswell hoped to achieve this vision, in part, though the decisions of judges, who in their view need not respect the precedent and tradition of their own legal system. Basically, Myers and Lasswell advocate a global human rights revolution to be achieved, in part, through the court systems of each country. Some of their agenda presses for changes that Americans would support (Lasswell and McDougal were critical of Communism); however, much of their philosophy does not square with the US Constitution and our American legal tradition.

4. What Evidence is there that Judge Sotomayor's Supports New Haven Legal Philosophy? Her comments on "empathy" and her direct statements that no judge is "objective" are consistent with New Haven thinking, as is her fascination with international tribunals. Just two years ago, she wrote the forward to a book that contains profiles of international judges. In this forward, she implicitly supported the practice of citing foreign law in US Constitutional cases (a practice that can keep the Constitutional door open to global notions of human rights!). She also stated that "we should also question how much we have to learn from international judges about . . . the factors outside of the law that influence our decisions."⁵ Judge Sotomayor's reference to "factors outside of the law" is consistent with New Haven school thinking, which emphasizes the need for lawyers to pursue a global public policy of human rights, even if this means disregarding legal precedent. Given the overall consistency of Judge Sotomayor's statements and writings with some aspects of New Haven thought, it seems likely that Judge Sotomayor has been significantly influenced by, and perhaps still privately espouses and supports the objectives of this philosophy.

Most recently, Judge Sotomayor's comments before the ACLU in Puerto Rico (April 2008) sounded several themes found in the writings of scholars who espouse the philosophy of the New Haven School; however, most of her remarks were presented in a neutral way, so it is hard to determine what her views on these issues really are. On the other hand, in this Puerto Rico speech, Judge Sotomayor expresses the view that US courts should study the reasoning of foreign courts in deciding the "unsettled issues" of US jurisprudence (for a transcript of her remarks in

Puerto Rico, see: http://video.nytimes.com/video/2009/06/10/us/politics/1194840839480/speech-to-the-a-c-l-u-of-puerto-rico.html)

5. More Clues to Judge Sotomayor's Philosophy. The writings of W. Michael Reisman may also offer some additional clues as to the Judge's legal philosophy. He was her faculty advisor when she served as the Managing Editor of the YSWPO and has remained a leading spokesman for New Haven jurisprudence after the deaths of Lasswell and McDougal. Reisman wrote in 1987, that one possible way to enforce global human rights standards would be to use domestic courts and legislatures of each country.

The absence of agencies and institutional arrangements for the enforcement of law is the central problem in contemporary international protection of human rights and in international law in general. . . . Why not view domestic courts as functional international courts?⁶

This view is also similar to the approach explored in an article she edited for the YSWPO, written by Thomas Schweitzer. This article discussed the prospects for forcing the US Government to comply with UN Security Council Resolutions by filing lawsuits in US courts (see http://judiciary.senate.gov/nominations/SupremeCourt/Sotomayor/upload/Supplemental-Attachment-1-Article-By-Thomas-Schweitzer.pdf). This is also similar to themes Judge Sotomayor discussed in Puerto Rico in April 2009; her remarks were ostensibly intended to be balanced and objective statements of US law, that US citizens do not have the ability to seek redress in US courts of rights under international treaties.