February 2007

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, "reprehensible."

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 strengthened."

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 to be.

"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."