Gonzalez Talks More Drivel in Run Up To President's Indictment

The alleged perjurer-war criminal Gonzalez quoted from the Federalist Papers about what government may be come.

If only he head read about the incorrect perception the Founders had about the President; and contrast that with the tyranny of the Bush Administration.

As Addington has done with the Constitution, Gonzalez is picking and choosing without focusing on the express language of the Constitution; or the abuse of power of this President.

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Links
Ref American Chronicle

Ref Speech

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Executive Not Delegated Power To Define What Is Or Is Not A Good Judge

Only the Congress has the power to impeach. Gonzalez is making a statement about the prospective qualities of a judge which relate to an attorney.

The President has no power to have any input to whether someone is or is not a good judge. That power rests solely with the Judge; and with the House and Senate if they decide the judge should be removed.

The Attorney was not granted any power to make comments on what is or is not a good judge.

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Executive Not Delegated Any Power To Define Judiciary Rules

The President and Attorney General were never delegated any power to make comments on what is or is not a "fair" rule.

Because the attorney general has publicly commented, in his official capacity on the Judiciary, the Judiciary may make public comments on the qualifications of the President and Attorney General: They should be impeached.

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Executive Never Delegated Any Power To Decide The Conditions Upon Which The Judiciary Is Or Is Not Supported To Do Its Job

The Judiciary is a separate branch of government. There is nothing in the Constitution which deletes to the President any power to deny justice; or block the Judiciary from doing its job.

Justice shall be provided, regardless whether the US government does or does not pay for it.

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These Comments Are Disingenuous

Executive officers were not delegated power to preach to other branches how they should or should not do their job.

The Executive cannot credibly speak about what others should "understand," when it is the President who does not understand the Separation of Powers; and the limited role the Executive has.

Mr. Gonzalez wants judges to be safe from retaliation, budget cuts and enjoy their judicial independence so long as the third branch of government understands its limited role as he defines Article 111 of the Constitution.

The Executive has no basis to decide whether the Judiciary is or is not perceiving its role correctly. That is a power only delegated to the House on impeachment.

The Executive was not delegated any power to have a double standard on whether it does or does not view its power as being limited. The Executive, like the Judiciary, has one power.

Constitution Did Not Delegate To Executive Power To Make Judiciary Independence Condition Upon Executive Consent

It is outrageous that, upon the whim of the Executive, Gonzalez is suggesting that, if the Justices do not cooperate with an arbitrary standard, that they should be subject to intrusion, retaliation, or budget cuts.

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Executive Denied Power to Speak On Judicial Power

The law is the law. When the President uses combat troops outside what the Congress supports, that is illegal.

The Executive is denied the power to remove the Judiciary from exercising its judicial review. The Executive was not delegated any power to deny the Judiciary from doing what the Constitution permits.

The judiciary per Mr. Gonzales has no business messing with policy decisions affecting "national security," made by Congress or the President.

The Constitution did not delegate to the President any power to disguise his illegal activity as a "power"; nor pretend that his assertion of Legislative-Judicial powers was something other than what it is: Illegal.

The Executive cannot hide his illegal assertion of Judicial- or Legislative- powers as something that is a "policy." All communications prior to that disclosure is admissible, and may not be protected by Executive Privilege. The President is asserting an illegal power of superior position above the Judiciary. He was never delegated this power.

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Ref Speech.

Original With Comments Added

Prepared Remarks of Attorney General Alberto R. Gonzales at the
American Enterprise Institute
Washington, D.C.
January 17, 2007
Good morning, and thank you. I am pleased to be here with you today to talk about the federal Judiciary.

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. We ignore it, and twist the law to create new powers.

And that continues to be true today because of the protection afforded to the rule of law by our great Judiciary. We ignore them.

While my reverence for judges and the Judiciary originated in law school and were molded during my service as a justice on the Texas Supreme Court, I have gained an even deeper and more robust appreciation for the Third Branch since being appointed Attorney General nearly two years ago. If we hide enough, the Judiciary is powerless.

The Framers of the Constitution truly were inspired in constructing the Judiciary the way they did: Appointment by the President "with the Advice and Consent of the Senate"; So inspired, that we make US Attorneys leave early so we can fill the position without consulting Congress.

jurisdiction to hear only real "Cases” or “Controversies"; Letting us commit crimes if we can hide the case

life tenure during "good Behaviour." Which on the House can decide, and the President has no power to decide

My remarks today will focus on what I see as three essentials to allowing our Judiciary to continue to live up to the ideals of the Framers and preserve its place as the cornerstone of our constitutional democracy. My comments are considered official policy because I have not adequately disclaimed them as my own views.

First, the Judiciary must be strong and independent. Not as strong as Addington's commitment to create non-sense.

Second, for the rule of law in America to continue to be an example for the world, judges must understand and perform their proper role in our democratic society, as was intended by the Framers. The President has now power to tell anyone what to think. That is Cheney's job: Propaganda!

And third, the very best people must fill these important judgeships—people who believe in the rule of law. Harriet Miers was so good, we fired her.

I. JUDICIAL INDEPENDENCE

A strong and independent Judiciary is necessary for our republic to remain strong, for our democracy to survive, and for the rule of law to flourish. The President has no power to make Judicial statements in signing statements.

To understand what I mean by independence, let me first clarify what independence is not. Independence is not what the President is doing.

Judicial independence does not mean complete freedom from scrutiny or criticism. The President is not above accountability for war crimes.

Judges' decisions may be criticized, and the nature of the job virtually guarantees it. President's may be impeached for asserting judicial power.

After all, in every court case there will be a loser. The President likes to hide from court, and lose on the battlefield. My boss is retarded.

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. President's shall decline to temptation to make signing statements that assert Judicial power.

The Framers granted federal judges lifetime tenure precisely so that they would be insulated from these sorts of pressures. The President, despite no lifetime appointment is insulated from reality.

Alexander Hamilton put it plainly in Federalist 78 when he wrote that lifetime tenure "during good behaviour" is the "best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws." The President's bad behavior can be punished with impeachment, prosecution, removal, and post-Presidency punishment including war crimes adjudication.

Judges also can help to maintain their independence, and shield themselves from public opinion, 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. Judges are judges; President's are Presidents.

Let me be clear about one thing. Up until now, I have not been clear in my mind what I am saying>

While criticism comes with the territory, I firmly believe 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. This does not mean the President opposes retaliation.

Some have also suggested creating an Inspector General for the Judiciary who would answer to Congress. Why not have a public affairs for the Justice so he can issue statements responding to stupid AG public speeches?

I oppose this idea. We prefer the wisdom of judges to be removed from the President.

The Judiciary should police itself, and if it does, the other two branches should not intervene. When the Judiciary is confused, the President will abuse his power.

I believe the Judiciary is making commendable efforts to ensure its integrity. I believe the President is God.

Justice Breyer’s recent review is a good example. Justice Breyer is being pointed to as a scapegoat.

And it should go without saying that threats to the safety of judges or their families are reprehensible. The President prefers to put lackeys on the Supreme Court who will be intimidated with legal non-sense.

I believe that judicial independence also would be strengthened if judges were paid more. Paid more attention.

I'm not going to argue that federal judges are not earning a livable wage. Judges who have ten children have other things on their mind.

And I'm not going to argue that the government can or should match dollar-for-dollar the potential private sector salaries these dedicated men and women could make. If we reduce their salaries more, we can get good district attorneys who will do the President's dirty work.

But there 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. If lawyers were rewarded for their independence, not for their political loyalty, that might help.

As Chief Justice John Roberts noted in his year-end report on the federal Judiciary, "If judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice, the Framers' goal of a truly independent Judiciary will be placed in serious jeopardy." This argument is meaningless: Justice Roberts took a pay cut; or is Roberts saying the Judiciary is in double jeopardy?

Over the years, I have talked with too many potential judicial nominees who have politely declined consideration precisely because they did not feel they could afford to serve. Who would want to serve when their legal opinions are ignored?

I hope the Congress will consider enacting a meaningful pay raise for judges, so that future candidates for judicial office will not be faced with that choice, and so that judicial independence will be strengthened. No money, no justice.

The Congress also should enact legislation to create more judgeships to handle the overwhelming workload now clogging our court system. Maybe if there were more judges, there would be fewer cases per judge.

Judicial workloads in most federal courts continue to increase, including crushing caseloads in the southwest border districts. Why not make more districts?

There is a strong, and appropriate focus on detaining more undocumented aliens here illegally in this country, yet very little attention on the downstream impact upon the workload of our prosecutors and judges. The President asks uncooperative prosecutors to resign early. Let's hear it for justice and independence.

Congress has not passed a comprehensive judgeships bill since 1990, despite tremendous increases in the number of cases being filed. The President's party refused to act.

This is just a variation on inadequate pay for the tremendous work of federal judges. Make the courts smaller, and make more of them.

Again, judges cannot carry out their constitutional duties adequately when dockets are stretched to the breaking point. The President is happy that the judges are not doing their job on FISA.

II. THE PROPER ROLE OF A JUDGE The Proper role of a President.

Now, it is not enough for the courts only to be strong and independent. Judges also must understand their role in our system of limited government. The President does not understand this, why should judges do something the President refuses to do?

I am concerned that some have lost sight of the role of the Judicial Branch as the Framers intended it to be. The President has lost sight as well.

I do not believe the Framers ever intended for the Judicial Branch – the Supreme Court or the lower courts – to make policy. Neither is the President allowed to make rules, issue judicial opinions.

It is worth recalling Hamilton's famous words, again from Federalist 78: "The Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." The Federalist Papers thought the President was our friend; he is not.

In arguing that states should ratify the Constitution, Hamilton sought to allay the concerns of those who feared that courts would endanger the political accountability of lawmakers or Executive Branch officials. Times have changed; we need a New Constitution.

In effect, he said, "Don't worry, courts won't be capable of arrogating to themselves the power of law- or policy-making."They said that about the President as well.

Of course, the power and authority of courts – whether to improperly take policymaking power for themselves or to engage in legitimate decision making – is dependent upon the weight of their judgment. This is not correct: The judicial authority is absolute.

That is, it depends on their credibility with the public and the other branches of government. Wrong, the Legislature may not check the Judiciary by ignoring it.

Judicial decisions are obeyed, in large part, because the judgment of the federal Judiciary is respected. The President does not respect the Judiciary.

But it is perhaps underappreciated that when courts apply an activist philosophy that stretches the law to suit policy preferences, they actually reduce the credibility and authority of the Judiciary. Credibility is a meaningless constraint or variable. The President has stretched the law to suit his policy preferences and has reduced the authority of the president.

In so doing, they undermine the rule of law that strengthens our democracy. The President is guilty.

In contrast, a judge who humbly understands the role of the courts in our tripartite system of government decides cases based on neutral principles. This President is not humble, but arrogant.

He generally defers to the judgment of the political branches, and respects precedent – the collective wisdom of those who have gone before. This President creates illegal precedent.

In so doing, that judge strengthens respect for the Judiciary, upholds the rule of law, and permits the people – through their elected representatives – to make choices about the issues of the day. Wrong, We the People can make choices regardless what the US government says. Our Power is infinite, the US government's power is finite.

It is no accident that the person President Bush chose to head the Judiciary, Chief Justice Roberts, made this point in terms all Americans could understand: "Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire." Chief Justice Roberts is not an umpire, he's a judge. Try another analogy. Umpires can eject bad players, like the President from the game.

When judges uphold laws enacted by Congress and actions taken by Executive Branch officials, they are sending a very clear message to the American people: "You have chosen this path, and it is presumed to be the right one because you have chosen it." When President ignore laws enacted by the Congress the actions are presumed wrong.

If the American people disagree with a law Congress has enacted or a policy of the Executive Branch, they have the right to vote Congress or the President out of office. They can also crate a New Constitution, and prosecute the US government officials for war crimes.

That is the method by which the Constitution keeps control in the hands of the people and keeps our limited government limited. The President ignores this.

It is my strong belief that activist judges who take that power into their own hands do not serve the Constitution or the people well. Activists Presidents who take the law into their own hands do not serve the People or Constitution well either, and should be removed from office.

They fundamentally misunderstand the role of a judge. The President misunderstands the Constitution.

I also am concerned about judges who imagine they see everything in society addressed in the Constitution. Who, specifically believes this?

It is worth remembering that the Constitution is a very brief document. The President illegally uses what is brief to expand power infinitely.

It defines the structure and authority of the federal government and protects a limited list of sacred rights. Limited rights are more easily ignored.

It does not, and was never intended to, address every legal issue that might arise in our nation’s history.The President has illegally filled the vacuum.

Democracy is well-served when the Court says, in effect, "the Constitution simply does not comment on this issue." Where there is no comment, the President has no power.

In contrast, constitutionalizing an issue takes it out of the democratic process. Signing statements are a means of circumventing democracy.

If the people disagree with a court decision based on the law, they have a remedy in the political process. They May lawfully create a New Constitution; and can legally ignore the Powers which are not related to the issue at hand.

Through their elected representatives, they can change the law. They can also change the President with impeachment, prosecute him, and forward evidence of war crimes to the German war crimes prosecutor.

But once a court declares a law to be unconstitutional or prohibits some agency action on constitutional grounds, it is limiting the options of the people. No, by providing clarity, it is defining what the President and Congress can or cannot do. Clarity assists. The People have infinite options. Decisions are about choosing something, and eliminating an option.

Such a step should be taken only where it is clear that the Constitution has truly spoken on the issue and forbidden what the political branches have determined to do. Where there is no Executive power, the President may not legally assert power.

Of course, if a law or an agency action is unconstitutional, then judges, consistent with their oaths of office, should not hesitate to strike it down or prohibit it. The FISA court has been illegally denied the power to do this.

But courts should exercise extreme caution. Why shouldn't President's be cautious?

Members of Congress and Executive Branch officials take an oath to uphold the Constitution just as judges do. This President violates his oath daily.

Courts that rush to invoke the Constitution to strike down the actions of the other branches sell short the wisdom and the prerogatives of the legislature, the President, and the people. This President ignores the laws.

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. The President does this all the time.

The Framers understood this. Hamilton said, "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature." The President does this with signing statements.

Activist judges – those who on a pretense substitute their own views for the will of the legislatures – can find some rationale to support any outcome they desire. The President does this.

They can find in legislative history some quote to support their viewpoint. Addington did this with the Iran-Contra affair.

They can find a footnote in an earlier decision, and extrapolate from that a new principle despite what the language of the law itself says. Cheney and Bush do this with signing statements.

But in the end, distorting history or precedent to support a pre-determined outcome weakens the Judiciary, undermines the rule of law, and harms our democracy. The President is doing this.

Courts must protect people from the "tyranny of the majority." This President keeps the courts out of legal issues they should review.

That is certainly true. Indeed, the President is a tyrant.

But we must also guard against the tyranny that results when unelected activist judges Presidents —both on the right and on the left—undermine the right of the people to govern themselves. The President is doing this as well.

As we recently have seen, under our system of government, no legislative majority can expect to last forever. The President could be impeached.

And no President can serve more than two terms. Thank God; only eight years, and then he will give us excuses to prosecute him for illegal activity.

As long as the people retain the power, I have faith that they will exercise it prudently. This President does not have faith in We the People, calling them incapable.

When power is held by a few, however, we face a far greater danger. When there is ultimate power with the President, as is the case here, we have the greatest danger.

There is a fundamental difference between the tyranny of the majority and the will of the people. The President hopes the confusion will distract attention from his tyranny.

Congressional majorities do not get to run roughshod over the Constitution, but if at the ballot box the people have decided they favor your policy goals, then you get a chance to set policy. The President runs roughshod over the Constitution.

Right now the Democrats control Congress. The Republicans are evil.

Where they have the votes to enact laws supporting their policies, they should be free to do so without contradiction from activist judges Presidents who disagree with those laws on policy grounds. The President should not contradict Congress.

Now, just as judges Presidents must understand their proper role and strive not to subvert the democratic process, leaders of the political branches should not pass difficult questions to the Judicial Branch because they are unwilling to make tough choices or because they don’t have the votes to enact clear language to advance their policy agenda. This President refuses to play by this rule.

This far too common occurrence puts the courts We the People in an untenable position.

If there is a danger in judges Presidents removing policy discussions from the political sphere, then the political branches themselves should avoid encouraging that tendency.

III. JUDICIAL SELECTION

As I discussed earlier, the Constitution wisely protects federal judges from retaliation by providing them life tenure and forbidding Congress from reducing their pay. This Presidents ignores the laws he does not want the judges to give him bad news about.

Short of the extraordinary measure of impeachment, the only true check on judicial over-reaching is the judges themselves. They can be prosecuted for criminal activity by Grand Juries, disbarred, and left to wander the halls of Congress asking for a Committee Assignment. Oh, did I say that?

This is why the President and I view it as so important to select judges who embrace a philosophy of judicial restraint. The President doesn't want judges who think too much.

The President promised during both of his election campaigns to select judges who understand the proper role of the Judiciary in our constitutional democracy. This President does not understand his role.

As his Attorney General, I am charged with helping him find such people. I looked in the Mirror, and cannot find them.

It is worth noting how we do not go about determining who shares the President’s vision of a good judge. Notice "do not go about" -- selecting

We do not ask about a candidate’s political views. We already know that buy their Campaign contributions.

Because judges are expected to set them aside when they don their judicial robes, these views are irrelevant. Not really.

Of course, to set aside personal views and rule according to the law is not always easy. This President views himself as being above the law; that is not difficult.

All judges will be tempted to abandon judicial philosophy on cases they care about. The President abandons his oath on laws he does not care about.

The good ones resist. Bad Presidents cannot resist evil.

Indeed, the good ones will apply a misguided law as it exists and trust democracy to fix that law. The Bad Presidents ignore the law calling it misguided.

Nor do we ask how a judge would rule in a particular case or on a particular legal issue. We look for judges who will be silent about Presidential abuse of power.

There are good reasons for this. We like the Judges to be silent.

First of all, as Justices Roberts and Alito explained so well during their confirmation hearings, it would be inappropriate for a judicial candidate or nominee to predict how he would rule in a case that is not before him. Especially when the counsel for that firm works with their wife; and they have a hard time explaining the dinner parties with the firm that put the CIA officers into Eastern Europe to commit the abuses. Oh, did I say that?

Good judges keep an open mind in every case. Bad presidents are mindless

They listen to the arguments of both parties, read the briefs, study the applicable law, and only then make a decision about what the law requires. They also look at evidence, review the Constitution -- things this President refuses to do -- look at reality.

Moreover, it would be inappropriate for a judicial candidate or nominee to make a promise to the President or to me or to the Senate about how he would rule on an issue. The law is the law; Presidents are Presidents; and the Constitution is the Constitution.

This would undermine the independence of the Judiciary and would be grossly unfair to the parties if such a case later came before that judge. To ignore the law, this President is unfair, and asserts judicial power.

Imagine being the plaintiff in a case assigned to a judge who already had promised to rule against you. Kind of like being a prisoner at Guantamamo.

What we do look for, in addition to sterling legal qualifications and upstanding character, is a general philosophy of restraint. The President is not restrained.

We try to determine whether a candidate understands the respective roles of our branches of government. Something the President does not understand.

We want to know whether he understands the boundaries of Article III of the Constitution. This President does not understand that either.

We want to determine whether he understands the inherent limits that make an unelected Judiciary inferior to Congress or the President in making policy judgments. Something the President does not comprehend on his sole Executive Power.

That, for example, a judge will never be in the best position to know what is in the national security interests of our country. We the People are in the best position to know this President is a threat to this nation's democracy.

That a judge cannot hold hearings or conduct studies to understand all the possible implications of a policy decision. The President has cursory reviews of the legal issues; something only judges can do.

We want to know whether he understands how judicial activism undermines democracy. The President wants to undermine it.

And we need to know that he can put aside his personal views when he takes the bench. The President cannot put aside his personal views.

A judge who understands the importance of these principles will take the right approach in every case. The President does not understand these principles.

I believe that selection of judges in this mold benefits everyone, especially Congress. If only the President were screened and monitored; they could be with a New Constitution.

Fundamentally, judges who respect the rule of law respect the right of legislatures to make the law. Presidents should respect the law and the SOLE POWER of the Legislature to make law. This one does not.

Under our Constitution, the President has the prerogative to nominate judges who agree with this philosophy. He does not have the prerogative to ignore the law.

Of course, it is the Senate’s responsibility to decide whether to confirm the President's nominees. The Senate may conclude the President is not fit to remain in office.

But I think it is fair to note that when the Framers provided for nominations to proceed with the advice and consent of the Senate, they assumed that body would at least consider the nominees. No, this is incorrect: The Senate is not required to do anything.

Today there are too many vacancies on the federal bench nationwide. The President has a problem -- too many seats, and not enough judges. What's his plan?

Many of these have been designated “judicial emergencies” by the Administrative Office of the U.S. Courts. The President doesn't look at the Constitution as an emergency.

For the Judiciary to be strong, it must be fully staffed. For the President to be competent, he must have a brain, Tin Man.

Allowing vacancies on the bench to go unfilled does great damage to the courts in the short and long term – and it does not reflect well on the Senate. Neither does the President's defiance of the law -- it is a bad position of the Senate to be there, but not reviewing the President's misconduct.

The President has nominated, and is continuing to nominate, strong candidates to fill these vacancies, and we look forward to working with the Senate to confirm them. The Senate is looking at the Presidents' guilt.

The Framers left us a great and powerful legacy when they created our Judiciary. The President has ignored this.

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. The President ignores the courts.

President Bush has sought to nominate judges who appreciate this role. So?

I believe he has chosen men and women who do honor to the institution of the Judiciary and to the Constitution. They do what the President refuses.

They are men and women we can all be proud of. Hooray, let's have an impeachment of the President.

Thank you. You're welcome, Gonzalez. How's that war crimes defense coming along?

May God bless you all, and may He continue to bless the United States of America. The President has not.


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Original

Prepared Remarks of Attorney General Alberto R. Gonzales at the
American Enterprise Institute
Washington, D.C.
January 17, 2007
Good morning, and thank you. I am pleased to be here with you today to talk about the federal Judiciary.

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. And that continues to be true today because of the protection afforded to the rule of law by our great Judiciary.

While my reverence for judges and the Judiciary originated in law school and were molded during my service as a justice on the Texas Supreme Court, I have gained an even deeper and more robust appreciation for the Third Branch since being appointed Attorney General nearly two years ago.

The Framers of the Constitution truly were inspired in constructing the Judiciary the way they did: Appointment by the President "with the Advice and Consent of the Senate"; jurisdiction to hear only real "Cases” or “Controversies"; life tenure during "good Behaviour." My remarks today will focus on what I see as three essentials to allowing our Judiciary to continue to live up to the ideals of the Framers and preserve its place as the cornerstone of our constitutional democracy.

First, the Judiciary must be strong and independent. Second, for the rule of law in America to continue to be an example for the world, judges must understand and perform their proper role in our democratic society, as was intended by the Framers. And third, the very best people must fill these important judgeships—people who believe in the rule of law.

I. JUDICIAL INDEPENDENCE

A strong and independent Judiciary is necessary for our republic to remain strong, for our democracy to survive, and for the rule of law to flourish. To understand what I mean by independence, let me first clarify what independence is not.

Judicial independence does not mean complete freedom from scrutiny or criticism. Judges' decisions may be criticized, and the nature of the job virtually guarantees it. After all, in every court case there will be a loser. 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.

The Framers granted federal judges lifetime tenure precisely so that they would be insulated from these sorts of pressures. Alexander Hamilton put it plainly in Federalist 78 when he wrote that lifetime tenure "during good behaviour" is the "best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws."

Judges also can help to maintain their independence, and shield themselves from public opinion, 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.

Let me be clear about one thing. While criticism comes with the territory, I firmly believe 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.

Some have also suggested creating an Inspector General for the Judiciary who would answer to Congress. I oppose this idea. The Judiciary should police itself, and if it does, the other two branches should not intervene. I believe the Judiciary is making commendable efforts to ensure its integrity. Justice Breyer’s recent review is a good example.

And it should go without saying that threats to the safety of judges or their families are reprehensible.

I believe that judicial independence also would be strengthened if judges were paid more. I'm not going to argue that federal judges are not earning a livable wage. And I'm not going to argue that the government can or should match dollar-for-dollar the potential private sector salaries these dedicated men and women could make. But there 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.

As Chief Justice John Roberts noted in his year-end report on the federal Judiciary, "If judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice, the Framers' goal of a truly independent Judiciary will be placed in serious jeopardy."

Over the years, I have talked with too many potential judicial nominees who have politely declined consideration precisely because they did not feel they could afford to serve. I hope the Congress will consider enacting a meaningful pay raise for judges, so that future candidates for judicial office will not be faced with that choice, and so that judicial independence will be strengthened.

The Congress also should enact legislation to create more judgeships to handle the overwhelming workload now clogging our court system. Judicial workloads in most federal courts continue to increase, including crushing caseloads in the southwest border districts. There is a strong, and appropriate focus on detaining more undocumented aliens here illegally in this country, yet very little attention on the downstream impact upon the workload of our prosecutors and judges. Congress has not passed a comprehensive judgeships bill since 1990, despite tremendous increases in the number of cases being filed. This is just a variation on inadequate pay for the tremendous work of federal judges. Again, judges cannot carry out their constitutional duties adequately when dockets are stretched to the breaking point.

II. THE PROPER ROLE OF A JUDGE

Now, it is not enough for the courts only to be strong and independent. Judges also must understand their role in our system of limited government.

I am concerned that some have lost sight of the role of the Judicial Branch as the Framers intended it to be.

I do not believe the Framers ever intended for the Judicial Branch – the Supreme Court or the lower courts – to make policy. It is worth recalling Hamilton's famous words, again from Federalist 78: "The Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them."

In arguing that states should ratify the Constitution, Hamilton sought to allay the concerns of those who feared that courts would endanger the political accountability of lawmakers or Executive Branch officials. In effect, he said, "Don't worry, courts won't be capable of arrogating to themselves the power of law- or policy-making."

Of course, the power and authority of courts – whether to improperly take policymaking power for themselves or to engage in legitimate decision making – is dependent upon the weight of their judgment. That is, it depends on their credibility with the public and the other branches of government. Judicial decisions are obeyed, in large part, because the judgment of the federal Judiciary is respected.

But it is perhaps underappreciated that when courts apply an activist philosophy that stretches the law to suit policy preferences, they actually reduce the credibility and authority of the Judiciary. In so doing, they undermine the rule of law that strengthens our democracy.

In contrast, a judge who humbly understands the role of the courts in our tripartite system of government decides cases based on neutral principles. He generally defers to the judgment of the political branches, and respects precedent – the collective wisdom of those who have gone before. In so doing, that judge strengthens respect for the Judiciary, upholds the rule of law, and permits the people – through their elected representatives – to make choices about the issues of the day.

It is no accident that the person President Bush chose to head the Judiciary, Chief Justice Roberts, made this point in terms all Americans could understand: "Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire."

When judges uphold laws enacted by Congress and actions taken by Executive Branch officials, they are sending a very clear message to the American people: "You have chosen this path, and it is presumed to be the right one because you have chosen it."

If the American people disagree with a law Congress has enacted or a policy of the Executive Branch, they have the right to vote Congress or the President out of office. That is the method by which the Constitution keeps control in the hands of the people and keeps our limited government limited. It is my strong belief that activist judges who take that power into their own hands do not serve the Constitution or the people well. They fundamentally misunderstand the role of a judge.

I also am concerned about judges who imagine they see everything in society addressed in the Constitution. It is worth remembering that the Constitution is a very brief document. It defines the structure and authority of the federal government and protects a limited list of sacred rights. It does not, and was never intended to, address every legal issue that might arise in our nation’s history.

Democracy is well-served when the Court says, in effect, "the Constitution simply does not comment on this issue." In contrast, constitutionalizing an issue takes it out of the democratic process. If the people disagree with a court decision based on the law, they have a remedy in the political process. Through their elected representatives, they can change the law.

But once a court declares a law to be unconstitutional or prohibits some agency action on constitutional grounds, it is limiting the options of the people. Such a step should be taken only where it is clear that the Constitution has truly spoken on the issue and forbidden what the political branches have determined to do.

Of course, if a law or an agency action is unconstitutional, then judges, consistent with their oaths of office, should not hesitate to strike it down or prohibit it. But courts should exercise extreme caution. Members of Congress and Executive Branch officials take an oath to uphold the Constitution just as judges do. Courts that rush to invoke the Constitution to strike down the actions of the other branches sell short the wisdom and the prerogatives of the legislature, the President, and the people.

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. The Framers understood this. Hamilton said, "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature."

Activist judges – those who on a pretense substitute their own views for the will of the legislatures – can find some rationale to support any outcome they desire. They can find in legislative history some quote to support their viewpoint. They can find a footnote in an earlier decision, and extrapolate from that a new principle despite what the language of the law itself says.

But in the end, distorting history or precedent to support a pre-determined outcome weakens the Judiciary, undermines the rule of law, and harms our democracy.

Courts must protect people from the "tyranny of the majority." That is certainly true. But we must also guard against the tyranny that results when unelected activist judges—both on the right and on the left—undermine the right of the people to govern themselves.

As we recently have seen, under our system of government, no legislative majority can expect to last forever. And no President can serve more than two terms. As long as the people retain the power, I have faith that they will exercise it prudently. When power is held by a few, however, we face a far greater danger. There is a fundamental difference between the tyranny of the majority and the will of the people.

Congressional majorities do not get to run roughshod over the Constitution, but if at the ballot box the people have decided they favor your policy goals, then you get a chance to set policy. Right now the Democrats control Congress. Where they have the votes to enact laws supporting their policies, they should be free to do so without contradiction from activist judges who disagree with those laws on policy grounds.

Now, just as judges must understand their proper role and strive not to subvert the democratic process, leaders of the political branches should not pass difficult questions to the Judicial Branch because they are unwilling to make tough choices or because they don’t have the votes to enact clear language to advance their policy agenda. This far too common occurrence puts the courts in an untenable position. If there is a danger in judges removing policy discussions from the political sphere, then the political branches themselves should avoid encouraging that tendency.

III. JUDICIAL SELECTION

As I discussed earlier, the Constitution wisely protects federal judges from retaliation by providing them life tenure and forbidding Congress from reducing their pay. Short of the extraordinary measure of impeachment, the only true check on judicial over-reaching is the judges themselves. This is why the President and I view it as so important to select judges who embrace a philosophy of judicial restraint.

The President promised during both of his election campaigns to select judges who understand the proper role of the Judiciary in our constitutional democracy. As his Attorney General, I am charged with helping him find such people.

It is worth noting how we do not go about determining who shares the President’s vision of a good judge. We do not ask about a candidate’s political views. Because judges are expected to set them aside when they don their judicial robes, these views are irrelevant.

Of course, to set aside personal views and rule according to the law is not always easy. All judges will be tempted to abandon judicial philosophy on cases they care about. The good ones resist. Indeed, the good ones will apply a misguided law as it exists and trust democracy to fix that law.

Nor do we ask how a judge would rule in a particular case or on a particular legal issue. There are good reasons for this. First of all, as Justices Roberts and Alito explained so well during their confirmation hearings, it would be inappropriate for a judicial candidate or nominee to predict how he would rule in a case that is not before him. Good judges keep an open mind in every case. They listen to the arguments of both parties, read the briefs, study the applicable law, and only then make a decision about what the law requires.

Moreover, it would be inappropriate for a judicial candidate or nominee to make a promise to the President or to me or to the Senate about how he would rule on an issue. This would undermine the independence of the Judiciary and would be grossly unfair to the parties if such a case later came before that judge. Imagine being the plaintiff in a case assigned to a judge who already had promised to rule against you.

What we do look for, in addition to sterling legal qualifications and upstanding character, is a general philosophy of restraint.

We try to determine whether a candidate understands the respective roles of our branches of government.

We want to know whether he understands the boundaries of Article III of the Constitution.

We want to determine whether he understands the inherent limits that make an unelected Judiciary inferior to Congress or the President in making policy judgments. That, for example, a judge will never be in the best position to know what is in the national security interests of our country. That a judge cannot hold hearings or conduct studies to understand all the possible implications of a policy decision.

We want to know whether he understands how judicial activism undermines democracy.

And we need to know that he can put aside his personal views when he takes the bench.

A judge who understands the importance of these principles will take the right approach in every case.

I believe that selection of judges in this mold benefits everyone, especially Congress. Fundamentally, judges who respect the rule of law respect the right of legislatures to make the law.

Under our Constitution, the President has the prerogative to nominate judges who agree with this philosophy. Of course, it is the Senate’s responsibility to decide whether to confirm the President's nominees. But I think it is fair to note that when the Framers provided for nominations to proceed with the advice and consent of the Senate, they assumed that body would at least consider the nominees.

Today there are too many vacancies on the federal bench nationwide. Many of these have been designated “judicial emergencies” by the Administrative Office of the U.S. Courts. For the Judiciary to be strong, it must be fully staffed. Allowing vacancies on the bench to go unfilled does great damage to the courts in the short and long term – and it does not reflect well on the Senate.

The President has nominated, and is continuing to nominate, strong candidates to fill these vacancies, and we look forward to working with the Senate to confirm them.

The Framers left us a great and powerful legacy when they created our Judiciary. 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. President Bush has sought to nominate judges who appreciate this role. I believe he has chosen men and women who do honor to the institution of the Judiciary and to the Constitution. They are men and women we can all be proud of.

Thank you. May God bless you all, and may He continue to bless the United States of America.