Hot Off the Press: Third Branch Unqualified to Make Decisions

In a speech to the American Enterprise Institute last week, Attorney General Alberto Gonzales uttered what the Associated Press called “his sharpest words” about judicial independence, the proper role of a judge, and judicial selection.

Much of Gonzales’s speech consisted of benign suggestions of universally accepted ideas (“judges cannot carry out their constitutional duties adequately when dockets are stretched to the breaking point”) and uncontroversial propositions (“the Judiciary must be strong and independent”). But after lulling his audience with tales of the “greatness of the American system of government” and the importance of the “rule of law,” Gonzales abruptly changed his tune. Invoking the spectre of the “activist judge,” Gonzales bemoaned the erosion of “the inherent limits” on the judiciary: “I don’t think the judiciary is equipped at all to make decisions about what is in the national interest of our country.” Before intervening in a detainee cases, Gonzales urged judges to ask themselves, “What do I know about…what is going on in Guantanamo?”

Gonzales touted the importance of independent judges and the rule of law, and then chided judges to defer to the executive branch. But isn't it one role of a "strong and independent" judiciary to ensure that the executive branch is constrained by the "rule of law"? Unfortunately, this contradiction was lost on the top lawyer for an administration which has -- on issues ranging from treatment of detainees to domestic wiretapping -- repeatedly asserted its “authority” to disregard our nation's laws.