"American law does not permit the use of foreign law or international law to interpret the Constitution," Judge Sonia Sotomayor declared at one point in her confirmation testimony last month.

"Foreign law cannot be used as a holding or precedent or to bind or to influence the outcome of a legal conclusion interpreting the Constitution," she asserted at another point.

"I will not use foreign law to interpret the Constitution," she said at a third point.

But there was much less than meets to eye to Sotomayor's apparently categorical assertions. They seemed to say that she would never engage in what has become the five more liberal justices' practice of relying in part on foreign and international law to interpret the Constitution. But it's clear when one reads all the way through her various, somewhat muddled statements on the subject that she would do just that.

The key to the apparent contradiction is Sotomayor's redefinition of the word "use." It calls to mind Bill Clinton's classic word game: "It depends on what the meaning of the word 'is' is."

Sotomayor's statements that she would not "use" foreign law in constitutional interpretation turn out to mean only that she would not use it "in the sense of relying on decisions of foreign courts as binding or controlling precedent" (emphasis added), as she specified in her post-testimony, off-camera answers to senators' written questions.

That's a little bit like a baseball pitcher vowing not to "use" knuckleballs to win a game, when all he means is that he won't rely exclusively on knuckleballs, but rather will throw some fastballs and curveballs too.

It's clear from Sotomayor's post-testimony written answers, as well as from her April 2009 speech to the ACLU of Puerto Rico, that she would consider foreign court decisions -- precedents, that is -- "as a source of ideas... informing our understanding of our own constitutional rights."

At the outset of her ACLU speech, Sotomayor said: "I always find it strange when people ask me, 'How do American courts use foreign and international law in making their decisions.' And I pause and say, 'We don't use foreign or international law; we consider the ideas that are suggested by international, foreign law."

She added that "to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system" and endorsed the idea of Justice Ruth Bader Ginsburg "that, unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world."

Finally, Sotomayor cited with approval a 5-4 Supreme Court decision, Roper v. Simmons, in 2005, that she said "looked... to foreign law to help" reinterpret the Eighth Amendment ban on "cruel and unusual punishment." In Roper, Justice Anthony Kennedy and the four more liberal justices overruled a 1989 decision in holding that the Eighth Amendment prohibits imposition of the death penalty on juvenile murderers.

Unlike Sotomayor's more conservative critics, I'm not sure that the Court should never rely even to a small extent on foreign or international precedents in deciding what punishments are "cruel and unusual." The Court has ruled since 1958 that the meaning of those words depends on "evolving standards of decency," not on what was considered cruel and unusual in 1791. The justices have also said repeatedly in recent decades that in determining what's "unusual" -- which unlike other constitutional language seems almost to invite international comparisons -- it's proper to consider foreign as well as domestic law.

So there was some logic to the majority's reliance in Roper on its finding that "the United States is the only country in the world that continues to give official sanction to the juvenile death penalty."

But this is also extremely slippery ground. Roper leaned on foreign law in part because the American "consensus" against juvenile executions that the majority purported to find was illusory: Twenty of the 38 death penalty states had continued to authorize (although they rarely imposed) such executions.

Against that background, as Justice Antonin Scalia wrote in his dissent, the logic of Roper boils down to using "the subjective views of five members of this Court and like-minded foreigners" to override democratically adopted state laws in the name of interpreting a 218-year-old constitutional amendment.

And as I wrote in my March 5, 2005 column, "if international standards are to be our guide, what of the facts that -- by decree of the Supreme Court -- the United States alone broadly bars prosecutors from using illegally seized evidence; is one of only six countries to allow abortion on demand until the fetus is viable; and is quite exceptional in requiring strict separation of church and state."

How would liberals like it if a conservative Court were to overrule liberal precedents on those issues as out of step with the international community?

As for the Ginsburg-Sotomayor advocacy of citing foreign precedents to avoid losing influence in the world, that comes perilously close to suggesting the Court should act to alleviate the embarrassment of some justices and judges -- especially when they attend glittering international conferences -- at their foreign peers' resentment of American voters' indifference to their views.

In a 2003 decision upholding racial preferences at the University of Michigan Law School, Ginsburg (joined by Justice Stephen Breyer) wrote a concurrence citing with approval two international agreements -- one of which the U.S. has refused to ratify -- as support for the "temporary" (meaning for many decades) "maintenance of unequal or separate rights for different racial groups." See my March 8, 2004 column.

Not that Scalia's "originalist" definition of "cruel and unusual" is any less problematic. Leaving it entirely to elected officials to discern "evolving standards of decency," Scalia says that the Court should uphold any punishment deemed constitutional at the time of the founding. But that would make the Eighth Amendment virtually a dead letter. Back then, children as young as 7 could be executed, among other punishments now universally deemed barbaric.

I don't know whether Sotomayor's use -- make that "consideration" -- of foreign law will be as loosey-goosey as Ginsburg's. But I'm pretty sure that the nominee took pains to keep those who watched her testimony from learning exactly what her approach is.

To be sure, Sotomayor did testify that "the question of use of foreign law is different than considering the ideas that it may on an academic level provide" (emphasis added). But there is nothing "academic" about relying in part on foreign law to justify changing the meaning of the U.S. Constitution.