Remarks as prepared for delivery
Thank you, Marc for that introduction and for your eight years of service as an AUSA, your service at Main Justice, and now your leadership as United States Attorney.
Thank you also to the nine attorneys from your team who are here with us.
I also want to thank your fellow U.S. Attorneys:
- Peter Deegan and four attorneys from his team,
- Cody Hiland,
- Dak Kees, and
- Ron Parsons.
Thank you also to Justice Gorsuch, and my good friends and former colleagues Senator Grassley and Chairman Goodlatte. Bob, we’re going to miss you in a few months—but you’ve earned a happy retirement.
I also want to thank the Deputy Marshals for providing security.
Thank you to Chief Judge Smith for your remarks and for the opportunity to be with you and the distinguished members of the court.
On behalf of President Donald Trump, I want to thank you all for your service to this country.
As judges and advocates, you have the opportunity every day to observe and respect and affirm our constitutional structure, and so I want to begin with this Administration’s commitment to that constitutional structure.
First and foremost the President is adding excellent judges to the federal bench.
For this Circuit, he has appointed Judge Grasz, Judge Stras, and Judge Erickson, who was confirmed almost unanimously. I look forward to their many years of distinguished service.
I believe that President Trump’s judicial philosophy is a major reason he was elected.
He laid out a thoughtful vision of what judges should do and he had the courage to put out an actual list for the voters to see. That was serious, transparent, and it was unprecedented.
He told the American people that he wanted judges who would respect text, history, and the role of the coequal Branches.
President Trump has kept his promise: he has nominated faithful, restrained judges.
In a few weeks, the Senate will consider the nomination of Circuit Judge Brett Kavanaugh to the Supreme Court.
Judge Kavanaugh attended Yale and Yale Law School. He was Notes Editor of the Yale Law Journal. He was a Bristow Fellow in the Office of the Solicitor General. He was chosen for a prestigious Supreme Court clerkship for Justice Kennedy.
He served in the Department of Justice, as Associate White House Counsel, and then as White House Staff Secretary. He was a partner at Kirkland and Ellis for four years.
He has served as a D.C. Circuit judge for the last 12 years and since 2009 he has been the Samuel Williston Lecturer in Law at Harvard Law School. He has adjudicated more than 1,500 cases and written 300 opinions.
This is an impeccable resume by any measure. He has experience at the highest levels in the private sector, the Executive Branch, and the Judiciary. He has won respect at every level.
We are in the midst of the largest document production for a Supreme Court nominee in history.
Congress has already received 200,000 pages of records from his time as an attorney in the White House, breaking the record set by Justice Gorsuch of 180,000 pages.
I think those records and his hearing will confirm what his reputation already tells us: that Judge Kavanaugh will be a truly great Supreme Court Justice.
Make no mistake, we at the Department of Justice know the importance of good judging. As a young Assistant United States Attorney and United States Attorney, I had the pleasure to try cases almost every day before great judges.
And a great federal judge is a wonder—a marvel of history, objectivity, integrity, and consistency in law. It is where law is embodied. Nowhere in the world has such a high level of consistent adjudication been achieved. Indeed, it is the wonder of the world.
As Senator on the Armed Services Committee I traveled to many hot spots around the world and often became involved in U.S. efforts to create effective legal systems in far off countries. We sent Department of Justice specialists, State Department officials, and Department of Defense legal officers in large numbers. Our people were smart, truly dedicated to the task, and courageous.
But the reality is that we cannot simply transfer our system—a thousand years in the making—arising out of our heritage to another country and culture that has had no such experience. In one country, one of our brilliant and well-known generals had installed new judges that he felt were honest and our advisors were teaching them our practices, even the exclusionary rule.
We were raised in the British system. John Adams defended British soldiers in a jury trial before the American Revolution. Edmund Burke declared that he’d heard that more copies of Blackstone’s Commentaries were sold in the colonies than in the mother country.
So you can know that this Attorney General recognizes and appreciates the high performance of our federal courts, and how unusual it is in all the world. We must recognize its value for freedom, integrity and prosperity and defend this system resolutely. We respect our courts, and honor our system of jurisprudence and appurtenances appertaining there to.
I am the top lawyer for the Executive Branch. It is a co-equal branch. It too is entitled to proper respect from the courts. Our Assistant U.S. Attorneys, advocating for legal positions—even if the judge may not agree—are due proper respect.
Judges are not sent from Olympus. They are not always correct. Indeed, our appeals in a number of cases have borne fruit in whole or in part.
Some of the erroneous rulings have been quite costly to the taxpayers, have delayed executive action, and have engendered criticism of the President, and the Department of Justice, in the media and various groups.
I’ve gotten kind of used to it myself. I may have withdrawal symptoms when it’s over.
Sometimes we have faced impassioned judges that have attacked the motives of our attorneys, our client agencies and the Attorney General himself—me.
Now we have judges recalling a presidential stump speech made two years ago to psychoanalyze a lawfully drafted order.
We have a government to run. It is not the duty of the courts to manage this government or to pass judgment on every policy action the Executive Branch takes.
I don’t think it’s improper to raise this question. If courts are to be respected for their role, the courts must respect the roles of the two other co-equal branches; and, be respectful of the constitutional structure set up by our Founders.
At the Department of Justice, we are working for that through our litigating positions.
One example of that is our defense of the travel order. That was an issue of constitutional structure. Congress passed a statute and the President followed it—and a judge blocked it.
As someone once said, ‘a judge on an island in the middle of the pacific ocean.’
In another structure case, Lucia v. SEC, we took the extraordinary step of reversing positions from that of the previous administration.
We argued successfully before the Supreme Court that administrative law judges are not just Executive Branch “staff”—but “officers” who needed to be accountable to the President. As with the other three cases on which we’ve reversed positions, we prevailed. The vote was 7 to 2.
We are also defending the constitutional structure of the federal government against nationwide injunctions—orders by a single district judge that block the entire Executive Branch from enforcing or implementing a statute, regulation, executive order, or policy.
You could also call them “non-party injunctions” or “global injunctions”—because they apply across America or even the world, and grant relief, whether they want it or not, to those who are not parties to the case.
Scholars have not found a single example of this type of remedy in the first 175 years of the Republic. But the Executive Branch has been hit with 22 in less than two years’ time in office.
It’s not as though there weren’t legal controversies before 1963. There were many. They were hotly contested. But nobody issued a nationwide, limitless injunction.
And yet today, each of the more than 600 federal district judges in the United States can enjoin a law or regulation throughout the country—regardless of whether the other 599 disagree.
Plaintiffs against the government only need to win once to stop a national law or policy—whereas the government needs to run the table to carry out its policies.
In truth, it prevents judges from considering the question, and provides the benefits of class certification without the procedural protections of Rule 23.
This goes beyond politics. This has been a problem for administrations of both parties. Until President Trump, the President with the most limitless injunctions was President Obama. Before him, it was President Clinton.
The Department of Justice—under Democratic and Republican administrations alike—has been consistent for decades that nationwide injunctions gravely threaten the rule of law.
When a court grants relief to parties not before the court, it dramatically undermines the ability of the President to carry out the will of the elected Branches and the voters.
Although the government may appeal, possibly all the way to the Supreme Court, that can take months.
Indeed, despite efforts to expedite the matter, it took 18 months before the Supreme Court was able to swat down the travel ban injunction.
In the meantime, the President is blocked from governing the Nation as the voters elected him to do.
To be sure, we have been successful in many of these appeals.
In one of the sanctuary city cases, Chicago sued and obtained a nationwide injunction that the Attorney General could not place minimal conditions on law enforcement grants to states and cities. The conditions requested cooperation with federal law enforcement before releasing those judged to have possibly violated our immigration laws.
We were pleased that the Seventh Circuit eventually limited that nationwide preliminary injunction to Chicago, but in the meantime other cities and other jurisdictions—and Members of Congress—were frustrated that cities had to wait for months before they got their expected money.
There are other signs that courts are beginning to recognize what Justice Thomas wrote in his concurrence in the travel order case: Nationwide injunctions “take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”
But from the Executive Branch’s perspective, relief from the problems of non-party injunctions cannot come too soon.
Our Constitution has governed us from the horse and buggy age to the digital age. Ours is the oldest and most resilient constitution in the world. We don’t need conservative judges or liberal judges. As Chief Justice Roberts testified, we just need judges to adjudicate disputes, calling the balls and strikes as they are without taking sides in the game.
But we must be vigilant to our Constitution's design and to its most central feature: the separation of powers.
That is what the American people rightly expect from those who enforce the laws of the United States.
It is an honor beyond words to serve as the Attorney General of this great Republic. I do my best every day to fulfill my responsibilities honestly and effectively.
Thank you for having me today and for your continued dedication to the rule of law.