I recently had occasion to review the international law jurisprudence of Judge Merrick Garland as part of an evaluation prepared by the American Bar Association’s Standing Committee on the Federal Judiciary of the professional qualifications of Judge Garland to be the next Associate Justice of the Supreme Court of the United States. The Standing Committee, which has conducted independent and comprehensive evaluations of the professional qualifications of nominees to the federal bench since 1953, considers nominees’ integrity, professional competence, and judicial temperament (but not his or her ideology or judicial philosophy), and then issues a rating of either “Well Qualified,” “Qualified,” or “Not Qualified.” (A backgrounder is here). In so doing, the Committee relies on the assessments of a range of stakeholders, including: federal and state judges (with all circuits represented), lawyers in private practice and government service, law school professors and deans, legal services and public interest lawyers, and community leaders, among others. Stanford Law School convened one such Academic Reading Group, chaired by my colleague Professor Bernadette Meyler. Not surprisingly, the Standing Committee rated Judge Garland as “Well Qualified” and generated a glowing evaluation of his professional qualifications.
Judge Garland on International Law
In terms of substance, the bulk of Judge Garland’s “international law” cases actually involve a US statute: the Foreign Sovereign Immunity Act, or FSIA (28 USC § 1602, et seq.), appearing at times in tandem with the act-of-state doctrine. The latter is a common law rule of decision that directs US courts to avoid questioning “the validity of public acts (acts jure imperii) performed by other sovereigns within their own borders.” (FromRepublic of Austria v. Altmann, 541 U.S. 677, 700 (2004)). It is not, however, a principle of complete abstention, nor is it a bar to suit whenever a case touches upon foreign affairs issues. “Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them” as the court found in W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400, 409 (1990).
Judge Garland has had occasion to cite and apply international law in the narrowest sense, mostly in the form of treaties that have been ratified (or not, on one occasion) by the United States, although there are some passing references to customary international law in his opinions as well. In engaging in the process of treaty interpretation, Judge Garland adheres to the methodology established by the Vienna Convention on the Law of Treatiesof May 29, 1969 — a treaty that the United States has not yet ratified, but that is regularly relied upon by US judges — and marshals a wide variety of relevant sources, including the records of the negotiations that produced the treaties, or the travaux préparatoires, other states parties’ interpretations of the treaty, and the international context in which the treaty was promulgated. He cites foreign law judiciously, for example to reveal the way in which the United States’ multilateral treaty parties have construed and enforced shared treaty language. See Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (with Justice Antonin Scalia, dissenting: “When we interpret a treaty, we accord the judgments of our sister signatories ‘considerable weight’” (citations removed)). Only one of Judge Garland’s prior opinions involved the Alien Tort Statute, which often serves as a vehicle for US judges to adjudicate international law. That suit had not yet reached the stage in which the sufficiency of the substantive claims were at issue, however, so how Judge Garland would apply Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), remains to be seen.
Given the relative paucity of his international law opinions, it is difficult to draw broad conclusions about Judge Garland’s approach to international law, particularly with respect to some of the more contentious doctrinal issues, such as the justiciability of customary international law, the force of non-self-executing treaties, and the relevance of international or foreign law to constitutional interpretation. To the extent that he does consider international law, however, Judge Garland articulates positions that are well within the mainstream interpretive approach. The cases also reveal Judge Garland to be willing and able to adapt ordinary domestic rules to extraordinary international events and to keep US courts open to victims of grave violations of international law where US law allows it.
Read the full post at Just Security.
- Publication Type:Other Writing
- Publication Date:07/12/2016