Good afternoon. Being an American citizen is an incredible blessing. We live in the greatest country on the face of the earth…the most powerful, influential society in history. When I travel, I see, taste and hear America’s influence on other cultures and institutions. Our nation is unrivaled as the beacon of hope, the champion of justice. We are the ally first called upon in times of crisis.
One of the many reasons for America’s greatness is our system of government. And what has allowed our system of government to thrive is its simple foundation in the rule of law. For many of you, law school is when you become acquainted with the concepts and principles that support our legal system and that our Founding Fathers embraced. As lawyers, you will play an important role in protecting the rule of law, and from time to time your work will be judged by the men and women who serve as judges.
Before your time at SMU, you may have heard of jurists like Marshall, Jackson, Warren, Brennan, Rehnquist, and O’Connor. But here, you will study in depth, the great decisions of these and other learned judges. You will see that judges have taken very different approaches to the job of judging. It is those differences I want to discuss with you today.
In doing so, however, I want you to keep in mind that judges are not the sole residents of the universe of the law. Each of the three branches of government will affect your lives as lawyers and as citizens.
Take, for example, the legislative branch. The study of the lawmaking process, and how statutes are to be understood and applied, becomes more important for lawyers every day. When federal law was first codified, in 1873, it fit into one volume that was 3 ½ inches thick. Today, the U.S. Code contains 46 volumes that take up ten and a half feet of shelf space.
The work of the Executive Branch will be a big part of your life too. Some here may already be familiar with Administrative Law and the Code of Federal Regulations. These administrative rules come not from Congress or the courts, but from the Executive Agencies. They have the force of law. How much administrative material is there? Well, the Federal Register, which is the “rough draft” of the Code of Federal Regulations, is printed every day. Over the course of 2006, it ran through 78,727 pages—more than 30 times as many as in 1936, when the Federal Register was created.
Throughout the rest of my talk, I will revisit the Legislative and Executive Branches. But the interpretation and application of the law is still the final domain of judges, and so I want to talk seriously about what an American judge should be.
I have seen the judiciary from the inside, as a Justice on the Texas Supreme Court. And over the past six years—first as White House Counsel and then, for the past two years as Attorney General, I have gained an even deeper appreciation for the Third Branch. My federal jobs have required me to give advice to the President as he fulfills his constitutional obligation to select federal judges; and, particularly as Attorney General, I feel a responsibility to ensure that the United States is represented before the nation’s courts by solid, dependable lawyers and with the best possible legal arguments. In short, there has not been a day for many years in which I have not given serious thought to the role of the Judiciary.
What are federal judges supposed to do? How are they supposed to do it?
The Framers of the Constitution started us on firm footing. They constructed our Judiciary by vesting the power of judicial appointment in the President, “with the Advice and Consent of the Senate.” The Framers wanted a limited judiciary which could not roam around issuing decrees to address whatever problems they might encounter. Federal jurisdiction turns on whether a question amounts to a “Case” or “Controversy.” Federal courts—unlike many state courts—can’t give legal advice—not even, as President Washington learned, if the President himself asks.
I see three essentials to allowing our Judiciary to live up to the Framers’ ideals, and thereby remain the cornerstone of our constitutional democracy.
First, the Judiciary must be strong and independent. Second, for the rule of law in America to remain an example for the world, judges must understand and perform their proper role in our democratic society, as the Framers intended. And third, the very best people must fill these important judgeships—people who believe in the rule of law.
I. JUDICIAL INDEPENDENCE
Democracy depends on the rule of law. The rule of law depends on a strong, independent Judiciary. But what does “independent” mean? What “judicial independence” does not mean is complete freedom from scrutiny or criticism. Judges’ decisions will be criticized. After all, the “case and controversy” requirement guarantees that every case will have a loser.
The Framers granted federal judges lifetime tenure precisely so that they would be insulated from the pressures of criticism—the kinds of pressures that politicians do respond to. As Alexander Hamilton put it in Federalist 78, life tenure is the “best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
But life tenure is not enough. Judges can maintain their independence (and avoid the worst criticism) by deciding cases on neutral principles – leaving factors like policy or the public mood to voters and the politically accountable branches.
Let me be clear: Criticism comes with the territory, but it is simply wrong for judges to be subjected to retaliation for their judicial decisions, whether by budget cuts or through misguided efforts like the recent Jail for Judges initiative in South Dakota. I’m glad that the people of South Dakota agree with me—they defeated this initiative in November.
And it should go without saying that threats to the safety of judges or their families are reprehensible.
II. THE PROPER ROLE OF A JUDGE
Now, it is not enough for the courts 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 Framers’ vision of the role of the Judicial Branch.
I do not believe they ever intended for the Judiciary—the Supreme Court or any court—to make policy. Remember Hamilton’s famous words, again from the Federalist Papers: “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.”
Judicial decisions have been obeyed historically 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 reduce the Judiciary’s credibility and authority.
In contrast, a judge who humbly understands the role of the courts in our tripartite system of government renders decisions 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 him. In so doing, that judge strengthens respect for the Judiciary, upholds the rule of law, and permits the People – through their elected representatives – to decide the issues of the day.
Chief Justice Roberts explained it well: “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 send 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.”
This makes for a strong democracy. It makes the People responsible for their choices. If our elected representatives make foolish decisions, we should not expect the judges to clean up the mess—we should vote Congress or the President out of office. That is the Constitution’s method for keeping control in the hands of the People—and keeping our limited government limited.
I also am concerned about judges who imagine they see a constitutional solution to every societal ill. 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—much less every policy question—that might arise.
Democracy is well-served when a court says, in effect, “the Constitution simply takes no position on this issue.” That means that the Constitution, far from forcing one result on us, instead permits the People to choose the rule they think best.
But constitutionalizing an issue takes it out of the democratic process. Some principles are outside the bounds of politics—we cannot establish a national church, for example. And courts must protect individuals from the tyranny of the majority—that’s what the enumerated rights are for.
But beyond these parameters, courts must not stop a self-governing democracy like the United States from using the normal legislative process – the process the Constitution itself enshrines – to make the decisions of the day.
Remember that 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.
Activist judges – those who on a pretense substitute their own views for the will of the legislatures – can, of course, find some rationale to support any desired outcome. They can find some quote to support their viewpoint in legislative history. Or, from a footnote in an earlier decision, they can extrapolate 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.
Problems along these lines are not the fault of judges alone. Yes, judges must understand their proper role and strive not to subvert the democratic process. But leaders of the political branches should not pass the buck on 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.
Sure, reelection might be easier if the laws that Congress passes are uncontroversial because they are vague. But this is an abdication of duty, and this far-too-common occurrence puts the courts in an untenable position. If it is dangerous for judges to remove policy discussions from the political sphere, then the political branches themselves should avoid encouraging that tendency.
HABEAS CORPUS AS AN INTER-BRANCH ENTERPRISE
Throughout our Nation’s history, the branches of our government often have struck the proper, constitutional balance in crafting and applying the law. I’d like to briefly discuss one example—the law of habeas corpus—where we have a tradition of proper allocation of authority among the branches, but in which a risk of upsetting the balance remains.
You have learned—or will learn—in your course in Federal Courts, that habeas corpus has a constitutional foundation, but that most of the law is statutory in nature.
The jurisprudence of habeas corpus has confused many law students—and lawyers—over the years. Some of the confusion has to do with the distinction between habeas corpus rights protected by the Constitution, and the habeas corpus rights protected by statute. This is an easy mistake to make, even though the Supreme Court has worked hard to make the distinction clear. In Rasul v. Bush, the case involving an enemy combatant held at Guantanamo, for example, the Court explicitly limited its holding to the habeas petitioners’ statutory rights.
I want to step back for a minute to stress that habeas corpus is vital and cherished in either form. To say that they are different is not to say that either is unimportant.
Turning first to the Constitution. The “Suspension Clause” reads as follows: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
The Constitution does not define the “Privilege of the Writ of Habeas Corpus.” But the Framers didn’t need to. We call habeas corpus the “Great Writ” for a reason—it is among the most cherished legacies of the Anglo-American legal tradition. Our Founding Fathers read Blackstone and history. Habeas corpus was not an obscure concept—it was a clear one, a bedrock principle of the common law.
The Constitution, in other words, presupposes—and protects—American citizens’ right to access the Writ of Habeas Corpus as it existed under the common law in 1789. The Supreme Court has said as much. And Chief Justice Marshall, in the famous case of Ex Parte Bollman, also suggested that Congress authorized habeas review in the federal courts in the Judiciary Act of 1789, precisely because Congress felt a constitutional obligation to ensure the availability of habeas.
But the story does not end there. I have emphasized to you how all the branches of government affect the law—something surprisingly easy to miss in law school casebooks.
Habeas corpus is no exception. In addition to the constitutional protection of the ancient writ, Congress and the President working together can expand—and have expanded—the scope of statutory habeas corpus. As a result, statutory habeas corpus affords vastly greater protection than did the common law. The Judiciary, in turn, by obeying the statutes, guarantees habeas petitioners the rights that the elected branches want our citizens to have.
Statutory habeas corpus protections authorize the courts to probe more deeply, and in more circumstances, than does the core constitutional privilege. We can look to historic English and early American case law to understand the scope of constitutional habeas. But for petitioners who seek habeas review today, this is entirely academic – our democracy has extended federal habeas remedies far beyond the Constitution’s guarantees, and beyond what Congress first authorized by statute in 1789. Federal courts are not tethered to the old common law cases when they must decide what new law contemplates—they are instead bound by more protective statutes.
Congress has always been faithful to the obligation our Constitution placed upon it—to preserve the ancient Great Writ. But the scope of statutory habeas can be and has been modified, restricted, or expanded depending on national needs and the political mood of the country. It is the political branches who decide and adjust the precise contours of statutory habeas from time to time. But in this process, petitioners have always received far more than they could claim under the Constitution alone.
Today, our Nation remains engaged in the global War on Terror. The three branches of our government have been asked to think further about the availability of habeas corpus—not just for Americans, but for foreign enemies who are captured and detained abroad.
Congress and the President, acting within the scope of their constitutional authority, have addressed this question. The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 created a regime allowing for review of the detention of alien enemy combatants—a regime that would fully satisfy the constitutional right to habeas corpus even if those detainees were entitled to it—which they are not according to the Supreme Court. Now the courts are being asked to rule that Congress and the President cannot restrict statutory habeas rights for alien enemy combatants detained outside the United States.
On this issue, as with every other, the Judiciary must remain faithful to the principles of restraint I have described above.
III. JUDICIAL SELECTION
So who should be the men and women entrusted with these important judicial powers?
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, and why the President has promised to select judges who understand the proper role of the Judiciary. As his Attorney General, I am charged with helping him find such people.
Let me tell you how we do not find them. We do not ask about their political views. Because judges are expected to set them aside when they don their judicial robes, these views are irrelevant.
Of course, judges are human beings. They will be tempted to abandon judicial philosophy on cases they care about. The good ones resist—and will apply even a misguided law as drafted, trusting democracy to fix that law.
Nor do we ask how a judge would rule in particular cases or on particular legal issues. As Chief Justice Roberts and Justice 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 not yet before him. Good judges keep an open mind in every case. They listen to both parties’ arguments, read the briefs, study the applicable law, and only then reach a conclusion about what the law requires.
Moreover, it would undermine the independence of the judiciary for a judicial candidate or nominee to promise his vote to anyone on any issue. That would be grossly unfair to the parties if such a case later arose. Imagine being the plaintiff in a case where the judge had already 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.
Does the candidate understand the respective roles of our branches of government?
Does he understand the boundaries of Article III of the Constitution?
Does he understand the inherent limits that make an unelected Judiciary inferior to Congress or the President in making policy judgments? That, for example, judges’ institutional competency does not include determining 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 must be sure 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.
Selecting 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.
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. Likewise, all of us are privileged to have the opportunity as officers of the court to promote the rule of law. As lawyers we have no greater responsibility.
Thank you. May God bless you all, and may He continue to bless the United States of America.
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