Sunday, March 19, 2017
Earlier this month, the Congressional Research Service published its comprehensive analysis of Judge Neil Gorsuch's judicial record. Readers of this blog will be particularly interested in his perspective on the citation of foreign and international law, an issue that has been a flashpoint for recent Supreme Court nominees.
As the CRS report points out, Justice Scalia, whose seat Gorsuch would fill, was outspoken in his opposition to looking at comparative jurisprudence -- or at least, his opposition to citing such comparative material. In contrast, the CRS survey finds that Judge Gorsuch has not had much occasion to address this issue in his time on the 10th Circuit Court of Appeals. Footnote 665 of the CRS analysis cites three cases involving international law in which Judge Gorsuch has been involved. Perhaps the most notable of these is Habyarimana v. Kagame, in which the widows of two murdered African heads of state charged Rwandan President Paul Kagame with their deaths under the Alien Tort Statute and the Torture Act. Judge Gorsuch was part of the panel, not the author of the opinion, but the panel agreed with the US government's amicus submission that head-of-state immunity shielded Kagame from the suit.
In a more run-of-the-mill case of the type that even Justice Scalia would find warrants citation to treaty law, Judge Gorsuch wrote the opinion in U.S. v. Jolivet, construing a treaty between the U.S. and Canada concerning transfer of prisoners. Judge Gorsuch relied on prior circuit precedent as well as the wording of the relevant treaty to determine that the law of the country receiving the transfer governs the length of the remaining sentence of imprisonment.
Given that Justices Kagan, Breyer, Kennedy, Sotomayor and Ginsburg have all stated that there is an appropriate role for foreign and international citation in Supreme Court jurisprudence, the addition of a new justice to the Court will not alter the majority position. But watch for this issue to come up in Judge Gorsuch's hearings as advocates review not only the nominee we have now, but anticipate the possibility of future Court openings with nominees who espouse the judicial version of President Trump's isolationist policies.