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Attorney General Opines On The Proper Role of Judges
Attorney General Alberto R. Gonzales condemned threats against judges
for their decisions, supported a judicial pay raise, and opposed an
Inspector General for the Judiciary, in a speech to the American
Enterprise Institute (AEI) in January. He also urged judges not to
substitute their views for the will of legislatures.
Gonzales told the AEI audience that three essentials will
preserve the Judiciary’s place in our constitutional democracy: that
the Judiciary remain independent, that judges understand and perform
their proper role in our society, and that people who believe in the
rule of law fill these important judgeships.
"It has been said many times that the greatness of the
American system of government—what has allowed it to thrive—is its
simple foundation in the rule of law,” Gonzales said. “And that
continues to be true today because of the protection afforded to the
rule of law by our great Judiciary."
Gonzales, who served as a justice on the Texas Supreme
Court before joining the Bush Administration, said he has gained an even
deeper and more robust appreciation for the Third Branch since being
appointed Attorney General nearly two years ago.
Although he cited judicial independence as "necessary for
our republic to remain strong, for our democracy to survive, and for
the rule of law to flourish," he was quick to define what judicial
independence is not. "Judicial independence does not mean complete
freedom from scrutiny or criticism," Gonzales said. "Judges’ decisions
may be criticized, and the nature of the job virtually guarantees it. . .
. Judges must resist the temptation to craft their opinions to avoid
criticism or to seek approval, whether from the press, the public, the
academy, or Congress."
Judges can help shield themselves from public opinion,
according to Gonzales, by deciding cases on neutral principles, "not by
considering factors, such as policy or the public mood, that are
appropriately considered by the politically accountable branches."
And while criticism comes with the judicial territory, "I
firmly believe," Gonzales said, "that judges should not be subjected to
retaliation for their judicial decisions, by budget cuts or through
misguided efforts like the recent Jail for Judges initiative in South
Dakota." He called threats to the safety of judges or their families,
According to Gonzales, judicial independence would be
strengthened if judges were paid more. ". . . [T]here should be some
meaningful effort to increase salaries to allow the Judiciary to attract
and retain the best legal minds—lawyers who could find far more
lucrative ways to ply their trade," he said. In his experience, many
potential judicial nominees have declined consideration for the federal
bench because they could not afford to serve. "I hope the Congress will
consider a meaningful pay raise for judges," the Attorney General told
the AEI, "so that future candidates for judicial office will not be
faced with that choice, and so that judicial independence will be
Gonzales also opposes the creation of an Inspector
General for the Third Branch, saying that if the Judiciary polices
itself, the other two branches should not intervene. He noted that the
Judiciary is making "commendable efforts" to ensure its integrity.
However, he also voiced concern that some judges have
lost sight of the role of the Judicial Branch as the Framers intended it
"A judge with life tenure who gives his own views on
political and policy matters greater weight than the considered
viewpoint of the elected representatives of the people, or who believes
he alone knows what is the best policy, can make great mischief. . . .
Respecting the prerogatives of the Executive and the Legislature, yet
strong and independent, the courts have a vital role in protecting our
democracy and the rule of law."