and that is a great educational tool and also it shows what is going on. the supreme court of the united states in the 1980's in richmond newspapers is virginia noted that the that a public trial belongs not just to the accused but to the public and the press indispensable attribute of an anglo--american trial." chief justice william howard taft put the issue into perspective stating -- quote -- "nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is subject

to intelligent scrutiny of their fellow man and to candid criticism." in the same feign, justice felix frankfurter said if the news media would cover the supreme court as thoroughly as it did the world series, it would be very important since public confidence in the judiciary hinges on the public's perception of k. it would certainly comprehend television and modern days and certainly justice frankfurter's use of the term media would include television as well. it is worth noting that justices have been frequently -- have frequently appeared on television. chief justice roberts and justice stevens appeared on "primetime," abc, justice ginsberg was on television,

justice meyers participated in "fox news sunday," a debate between justice scalia was available for viewing on the web. there is no doubt of the enormous public interest in what television -- in what the supreme court does when the case of bush v. gore was decided, the block surrounding the supreme court chambers across the green from the senate was loaded with television trucks. although the cameras couldn't get inside, there was tremendous public concern. and the decisions of the court are on all of the cutting edge issues of the day. the court decides executive power, congressional powrks defendant's rights, habeas corpus, civil rights, voting

rights, affirmative action, abortion, and the list could go on and on. in both the 109th and 110th congress, i introduced legislation calling for the court to be televised. twice it was reported favorably out of committee, but neither time reached the floor of the united states senate. and i intend to reintroduce the legislation and intend to -- to pursue it. a number of justices have commented about the television. justice stevens said that he favors televising the supreme court. he thinks, as he put it, that it is worth a try. justice ruth bader ginsburg said that she would support television and the cameras as long as it was tbafl to gavel,

justice alito noted that when he was on the third circuit, he voted in favor of televising the proceedings, but had a reservation saying that if confirmed, he would would want to consult with his -- with his colleagues about it justice kennedy has said that he thinks televising the court is inevitable. justice -- chief justice roberts left the question open. there is obvious sensitivity in the court if a colleague strenuously objects and such an objection has been launched by justice souter. can i tell you the day that you see a camera come into our courtroom, it is going to -- it is going to roll over my dead body. close quote. quite a dramatic statement. well, justice souter has announced his retirement.

and perhaps in the absence of that kind of strenuous objection, it would be a good time for the court to reconsider the issue. i intend to ask judge sotomayor in her confirmation hearing whether she agrees with justice souter, justice stevens in televise -- that televising the supreme court is worth a try. whether she agrees with justice breyer, that televising the proceedings is a valuable teaching advice. whether she agrees with justice kennedy, that televising the court is inevitable. and she can shed some light on the issue because her courtroom was part of a pilot program where it was televised. there was a program from 1991 through 1994 where the judicial conference evaluated a pilot program conducted in six federal

district courts an two federal circuits -- and two federal circuits and they found -- quote -- "overall attitudes of judges toward election, media coverage of civil procedures were neutral and became more favorable. the judicial centers conclusion also stated judges and attorneys who had experience with electronic media coverage under the program generally reported observing small or no effects of the presence of -- of camera presence when the participants in the proceedings courtroom to courtroom. i think those findings are a very solid step forward from some of the justices who have expressed concern of the dynamics of the court would be changed. with the ability to put a camera in a concealed position, the findings of the judicial center,

that is a solid argument in favor of proceeding, and, to repeat, i intend to continue to press the issue and the confirmation proceedings of judge sotomayor will be a good opportunity to ask her about her experience when she presided over a trial under the pilot program and to further develop the issue and perhaps to stimulate some.the presiding oft objection, so ordered. ing is session madam president, the nomination of a new justice to the supreme court has somewhat unexpectedly, i think, brought to our mind a core question both for the senate and the american people. that is, what, if any, is the appropriate role for foreign law to play in the interpretation of our constitution? meaning, should judges look at what other countries say when they are determining what are

our constitutional rights? this is not an academic question. it's a question that has the potential to impact our fundamental rights guaranteed to us by the united states constitution. until recent years the answer has always been understood to be "no." apart from a few rare circumstances and certainly never in the interpretation of the meaning of our precious constitutional rights. this traditional understanding has served to protect our constitutional rights by ensuring that judges remain true to the will of the american people not the will of foreign judges or courts. our system has been a critical component. our system has a critical component: moral authority. that moral authority comes from the basic concept that our law is a product of the will of the

people and through the people they chose to represent them. the constitution begins, "we the people do ordain and establish this constitution." and our laws are enacted by a congress, a body subject to the will of the people, composed of people elected by the people. we are accountable to the american citizens. the novel idea that foreign law has a place in the interpretation of american law creates numerous dangers and a number of academics and even federal judges are, i would say, seduced by this idea. judge sotomayor clearly shares in that judge. i'm somewhat surprised but it's true as i will discuss. her vision seems to be we should change our laws or listen to other laws and judges in sort --

and so the of merge them with the foreign law. that is the overt opinion. mr. koh who was just nominated and confirmed to the chief counsel of the u.s. state department, mr. koh is quite open about it, shockingly, really. i suggest if we become transnational we suffer two blows to our legal system. first the laws we are subject to would not be laws made by us. this would remind us of the boston tea party. the colonies objected to paying taxes but not just any taxes. they objected because the taxes were being imposed on them by the british parliament and they didn't have a voice in it. the complaint was taxation without representation. thus, the moral power of the american law to compel obedience

arises from the people's choice to enact it in the first place, that moral authority is undermined when we allow foreign law we had nothing to do with to impact our law. that is a pernicious thing, i suggest. secondly, it is not ever going to work in our good way. most countries don't have law, the truth be known. they have politics masquerading as law. trying to merge our system based on truth, the law and the evidence with these political legal systems will only result in our being shortchanged. we can reach agreements affecting mutual interests with foreign nations and adhere to them as long as we mutually agree to do so through treaties and other agreements but to submit ourself to their political policies while pretending we are merging our law with theirs is just plain foolishness.

it also creates confusion on a matter of utmost importance. the question is, who does the judge serve? the people of the united states or the people of the world or some individual country with whom they agree? or to the world community often referred to? furthermore, reliance on foreign law places our constitutional rights in jeopardy. there are great differences between american and foreign law on cherished rights protected by our constitution. the constitution's protection of free speech is probably unparalleled anywhere in the world. or in additions punish, sometimes, spirited debate on controversial matters. they call it sometimes "hate crime," and take action against speech and other things that we would allow without a single

thought or criminalize -- are criminalized in other countries. the constitution protects the right to keep in bear mines and other nations ban private gun ownership and the constitution allows for the death penalty. other nations reject the use of the death penalty even for violent killers while other nations have the death penalty and they impose it without do you process being carried out. yet this troubling potential for infringements on constitutional rights i would suggest is only the tip of the iceberg. first and foremost, reliance on foreign law creates opportunities for judges to undulling their policy preference. in a speech given to the puerto rico chapter of the american civil liberties union on april 28 of this year, 2009, just one day after having been contacted by the white house about the

possibility of a supreme court vacancy, judge sotomayor placed herself firmly on what i believe is the wrong side of this debate. stating in this speech -- quote -- "to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that's based on a fundamental misunderstanding. what you would be asking american judges to do is close their mines to good ideas." well, the requests our judges supposed to reflect are the requests that united states congress in the to be go. ones we enacted into law. not what was enacted in france or saudi arabia or china or any other place.

this is a matter of real respose. and this whole concept of foreign@@@@b'á'"'"bbd,' condemned although one judge on the supreme court defends it. but in her speech judge sonia sotomayor explains -- quote -- "the nature of the criticism of using international law comes from a misunderstanding of the american use of that concept of using foreign law and that misunderstanding is unfortunately, endorsed by some of our own supreme court justices. both justice scalia and justice thomas have written extensively criticizing the use of foreign and international law in supreme court decisions."

so she criticized justice scalia and thomas, who have expressed opposition to this. let me be blunt. i believe it's judge sotomayor, not the justices scalia and thomas, who are wrong. under her approach, a yuj is free -- has free rein to survey the world to find what they might consider to be good ideas, and then impose these views on the american people calling it "law." however, this is not the american system. our system requires judges to adhere to this constitution. to the statutes and to the legal precedent, to the end that justices follow the will of the people of our country, as expressed in our law. the constitution says we do ordain and establish this constitution of the united states, not some other.

judges aren't free to amend it by citing some other foreign constitution. i think this is a big deal. so they're not -- judges aren't free to indulge their own personal opinions about what good policy is. judges don't set policy. and to search for support for that in foreign law. despite judge sotomayor's claim at a duke law school panel discussion that -- quote -- -- f appeals is where policies is made. judges are not policy-makers. they are servants of the law if they're fulfilling their role properly. the law, as it is, not the way they might wish it to be. second, in reliance on -- reliance on foreign law causes confusion rather than clarification as to the state of american law. judge sotomayor claims that foreign law -- quote -- "can add to the story of knowledge relevant to the solution of a question." close quote.

paraphrasing supreme court justice ruth bader ginsburg, who pioneered this concept, she made those statements. and judge ginsburg's citation of it in cases and her defense of it in speeches is really -- has really led to this controversy which scalia and thomas have responded. so on the contrary, reliance on foreign law create creates conf. consider sotomayor's opinion in c.e.o. v. c.e.o. in the interpretation of a treaty. one of the few instances in which reliance on foreign law may be perfectly permissible. judge sotomayor repeatedly criticized the majority judges on the panel as parochial for consulting american dictionaries to understand the meaning of the -- of "custody" as determined by the hague convention on international child abduction

and then she relies on foreign interpretations of those words instead. yet the majority rightly rebuked judge sotomayor for relying on the scattered and divergent foreign legal cases on this subject. the majority even cites the supreme court precedent that warns against relying on foreign law, creates a state of confusion. third, the reliance on foreign law is also based on a misconception that judges, rather than elected officials, in the political branches of government play a role in advancing our nation's foreign policy. judge sotomayor states this -- quote -- "i share more the ideas of justice ginsburg and her thinking that unless american courts are more open to discussing the ideas raid by foreign cases and by

international cases, that we are going to lose influence in the world." close quote. but judges aren't diplomats, and it's a job of diplomats -- it's the job of diplomats to protect our standing in the world and they have to explain to the world why we rule the way rerule on our cases. that's their responsibility. reliance on foreign law blurs a distinction between domestic and foreign law undermining our ability to make democratic choices. the examples of the supreme court reliance on foreign law cited approvingly by judge sotomayor, involve the interpretation of the constitution dealing with purely domestic legal issues that do not and should not touch on any matter of international concern. for example, she approvingly cites the case of robert v. simmons in which five justices of the supreme court recently

rendered a decision based in part on their review of foreign law and concluded that our constitution declares that we cannot execute a violent criminal if that criminal is one day under 18 years of age when he killed someone or a group of people. there is enothinthere's nothinge constitution that says that. they found some foreign law to make an argument about what the constitution says about what age a state can set for a death penalty. i know we can disagree on what the age should be, but it's a legislative matter. the court in that case said it was looking to -- quote -- "evolving standard of decency that marked the progress of a maturing society" -- close quote. what kind of standard is that for a law? where do you find what the

maturing society now believes? do you check with china? do you check with iran? or maybe france? i mean, where do we do this? how do they define what this all is? the court concluded that the death penalty violated the eighth amendment, which prohibits cruel and unusual punishment when there are at least six or more references in the constitution itself. the capital crimes, to not taking life without due process, it's always been contemplated in the constitution that the death penalty is not cruel and unusual. that was for drawing such matters as that. if basic constitutional matters are subject to reconsideration, our constitution ceases to be the bullwork for our liberty -- the bulwark for our liberty it has always been.

the constitution will be weakened. its its authority and power will be diminished. yet this is precisely the view of foreign law advocated by judge sotomayor, who says that these courts who do this -- quote -- "were just using foreign law to help us understand what the concept meant to other countries and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking" -- close quote. well, i'm not sure tha -- did te judge conduct polls, worldwide polls of human thinking? how does a judge find out what the mainstream of human thinking is? in truth, many of the critics of

this idea have hit the nail on the head, i think. they say that all it does is allow a judge to look around the world to find somebody that agrees with them and use that as authority to do what they wanted to do all along. judge sotomayor not only advocates for reliance on foreign law, but she also goes a step further than justice ginsburg advocating for adoption of the techniques of foreign judges, even ones that serve to conceal the individual judge's reasoning process from public scrutiny. in her forward to the book "the international judge," which she was chosen to do the forward to, judge sotomayor states -- quote -- "the question of how much we have to learn from foreign law and the international community when interpreting our constitution is not the only one worth posing.

as the international judge makes clear, we should also question how much we have to learn from international courts and from their male and female judges about the process of judging and the factors outside the law that influence our decisions." close quote. in her speech in 1999, judge sotomayor expressed admiration for the french tradition of judicial panels, panels of judges, issuin issuing single ds commenting -- quote -- "with a single decision. there is less pressure on individual judges and less fear of reprisal for unpopular decisions." according to law professor william d. popkin, french legal opinions are anonymous -- unanimous and la connic laconic.

"the irony about french judicial opinion write something that minimal reason-giving allows frenches judges to conceal a bold judicial law-making role, perhaps even bolder than in the case of u.s. and english judges because of the lack of any formal notion of precedent." close quote. that's different from the american heritage of law. judges sign opinion. but we've seen at least three very significant opinions in recent years and months from judge sotomayor that were per curiam. no one judge assumed responsibility for the decision. and they were very short. so in a way, maybe she is following that. reareal surprisingly short on te case involving firearms, on the case involving the firefighters

in connecticut. they were very short opinions and not a lot of discussion in peper curiam. the problems with this tradition are cleemplet it makes it more difficult for judges to assess whether their legal reasoning was justified. only then can one see if proper principles are be followed. indeed, judge sotomayor may already be following that. as i noted with some of the per curiam opinions that we've seen. i have to say that the judge wants to -- more international law, not less. ominously, judge sotomayor states -- quote -- "international law and foreign law will be very impornt 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 this because, within the american legal system, we're commanded to interpret our law in the best way we can, and that means looking to what other anyone has said to see if it has persuasive value." close quote. the judge makes, i think, an audacious claim that the american legal system commands judges to look at foreign law and highlights the role of making decisions on unsettled cases. there have been and will be many differences between domestic and foreign law on matters that are fundamental. this is normal and understanding because different nations have different cultures, values, and legal systems. the united states should be independent to pursue its own individual choices expressed through the american people, through their elected officials,

to reach the fullest and richest expression of our exceptionalism as a nation. the american ideal of law is objectivity in deciding the case before the court. that case being sufficient for the day. this is unusual. most countries are not so restrained. to a much greater degree, foreign judges see themselves as policy-makers. in afghanistan -- in pakistan recently, the chief judge there was setting all kinds of policy in afghanistan. i thought it was most unusual. surely nothing like that would happen here, because we have a different heritage. and i would suggest that for an ambitious or strong-willed american judge, such freedom to search around the world to identify arguments thatht