This past summer proved to be a period of historic change for our nation. We saw the passing of a great Chief Justice of the United States, William Rehnquist, and a retirement announcement by another distinguished justice, Sandra Day O’Connor. We have also seen the President put forward two extraordinary choices to fill their seats and to carry on the great mission entrusted to our nation’s Supreme Court.
Few presidential decisions are more important than lifetime appointments to the federal bench. As you know, these appointments often represent a President’s most enduring legacy.
Almost two decades ago, for example, President Reagan had a similar opportunity to nominate a Chief Justice and Associate Justice at the same time. Though Chief Justice Rehnquist has passed on, the decisions of the Rehnquist Court will continue to guide our nation for decades.
Understandably our attention has been focused recently on nominations to the Supreme Court, but a President’s “judicial legacy” is not confined to appointments to that Court. Rather, a President’s greatest impact on our legal system may be his appointments to the lower courts. Of the millions of cases filed every year in state and federal courts fewer than 100 will ever be heard by the Supreme Court. In fact, the rulings that affect our daily lives are most often handed down by district judges and circuit courts. Today, I would like to talk a little bit about the importance of how we as a nation view the Constitution—and how important it is that our judges, and our debate about judges reflect the intent of our nation’s founders as well as that founding document.
President Bush has repeatedly made clear how seriously he takes his constitutional responsibility to appoint federal judges at all levels. He campaigned on the promise that, if elected, he would nominate conservative judges.
Five years later, the President is committed to keeping his promise. He has nominated judges he believes will not bend the law based on personal preferences but stand firm on the principals of judicial restraint... judges who adhere to the plain meaning of statutes, who faithfully apply the text of our Constitution, and who follow the law to the result it requires—no matter the policy or political ramifications.
As of a few weeks ago, this President had nominated and the Senate had confirmed 41 court of appeals judges and 172 district judges. Together, these judges will form a lasting part of President Bush’s legacy, putting into practice the ideal that judges must not legislate from the bench.
While these appointments alone would be an enduring contribution to the rule of law, two vacancies on the Supreme Court have provided the President a historic opportunity to shape the course of justice for years to come—an opportunity like the one President Reagan seized in elevating Chief Justice Rehnquist and appointing Justice Scalia.
President Bush has responded by nominating John Roberts and Harriet Miers. Chief Justice John Roberts has already been confirmed. His confirmation hearing testimony makes for a compelling civics lesson: He explained eloquently the appropriate role of a judge in our constitutional system. One of his responses is worth quoting at some length. He said:
I don’t think the courts should have a dominant role in . . . addressing society’s problems. It is their job to say what the law is . . . And, yes, there will be times when either the Executive Branch or the Legislative Branch exceeds the limits of their powers under the Constitution or transgresses one of the provisions of the Bill of Rights, and then it is emphatically the obligation of the courts to step up and say what the Constitution provides, and to strike down either unconstitutional legislation or unconstitutional Executive action.
But the Court has to appreciate that the reason they have that authority is because they’re interpreting the law, they’re not making policy, and to the extent they go beyond their confined limits and make policy or execute the law, they lose their legitimacy.
In voting to confirm Chief Justice Roberts, the Senate also confirmed the importance of the proper role of the unelected judiciary in our system of government.
The President’s other nominee to the Court, Harriet Miers, is likewise an extraordinary candidate.
Like virtually every other lawyer and judge who knows her well, I would describe Ms. Miers as an accomplished litigator, a careful advocate for her clients and a consummate professional—a woman who has always been well prepared to discharge every responsibility and meet every challenge.
She has proven herself to have many qualities that will benefit her on the Court. First, as a successful litigator of complex federal and state cases, she had to master every nuance of the legal arguments at issue. As an advocate she has demonstrated time and again the skill and intelligence to analyze a statute or regulation or defend a constitutional principal. She has the proven capacity to understand difficult legal concepts in various disciplines and to explain them in a persuasive manner to a judge or jury—the same skills that are essential when you sit on the bench and work with fellow judges.
Second, Ms. Miers’ work as Staff Secretary for the White House shows her disciplined legal mind and attention to detail. In this role, she was responsible for ensuring that no piece of paper went to the President unless it was perfect in form and content. To do this job, she had to master fully complex legal and policy issues. She had to understand and consider the context of every sentence of every document, including many that raised important constitutional issues such as federalism, freedom of religion, freedom of speech, the war on terror, and the separation of powers.
Finally, as the Counsel to the President Ms. Miers confronts daily constitutional issues, from advising on the constitutionality of proposed legislation to defending the institution of the Presidency under the principle of separation of powers. As her predecessor in that position, I know the substantive demands of that position and the trust being invested by the President.
For these and other reasons, I believe Ms. Miers is qualified to serve on the Supreme Court. But you do not have to take my word—listen to her words as she responds to questions in her confirmation hearings. The Senate—and the American public—will learn more then about Ms. Miers’ qualifications and her approach to judging. I believe her judicial philosophy is consistent today and will be in the future with the vision laid out by the President: that judges should interpret law faithfully, not make law creatively.
I urge the Senate to follow the example set in the Roberts hearing and provide a civil and efficient confirmation process—one that recognizes that, as the President said, “judging is different from politics.” And I urge the Senators and the American people not to rush to judgment—to wait until all the facts are in and not make a decision based upon one snippet or a single news story.
The confirmation process has been fundamentally changed by technological changes that allow the instantaneous and costless spread of information. In this age of the 24-hour news cycle of blogs, talk radio, and cable news, there is a seemingly constant vacuum to be filled with new information on the nominee. Much of this revolution is for the good, as it allows the public to develop a more informed view. But there are harmful effects as well. Unsubstantiated rumors, false allegations, and distorted facts can be spread with impunity by those who don’t take the time to check the facts—as well as by those who affirmatively seek to mislead. And once such baseless claims and innuendo are made, the Internet ensures that they take on a life of their own and can never be fully rooted out.
In light of these changes, those who traffic in information owe all Americans a duty to act in good faith, to avoid circulating falsehoods, and to verify information before broadcasting it. The careers and reputations of good people depend on that. And I urge the Senate to exercise discipline in its consideration of judicial nominations. It is important that amidst all of the static surrounding a nominee, the Senate focus on the characteristics that are essential to good judging, seek out reliable information, and maintain the dignity of a process that is essential to our democracy.
A dignified and fair confirmation process is important not only in filling seats on the Court, but in presenting us with an opportunity for a robust national discussion about judicial philosophy. In our constitutional system, the importance of judicial restraint—the idea that judges interpret the law, not make it—cannot be overstated. The consent of the governed rests at the very core of our government. But judging is consistent with this democratic principle only insofar as judges faithfully interpret the laws and the Constitution that have been adopted through democratic processes.
Within our system of self-government, the judiciary plays a vital but often-misunderstood role. As Chief Justice Marshall explained in Marbury v. Madison, “it is emphatically the province and duty of the judicial department to say what the law is.” But that was true only to the extent that the judiciary was implementing duly enacted laws that represented the people’s will.
James Madison said in Federalist 49: “The people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived.” Therefore, when judges import their personal preferences into constitutional decisionmaking, it is as inconsistent with democratic ideals as if the judge had ignored the clear text of a statute.
I have been a judge, so I am well aware that a court’s real source of power is its legitimate role in our constitutional system. If a court strays from this role, its decisions will not command respect – nor should they. And the surest way for courts to cede legitimacy is to ignore the will of the people as enshrined in the Constitution and in statutes—that is, for an unelected and unaccountable branch to impose its policy preferences on the nation. To do so is to undermine the consent of the governed, to deny the people their rightful ability to express their will—our will—through the democratic process.
The framers of the Constitution conceived a separate branch of government where judges would be independent and impartial. Of course, independence means federal judges are relatively unaccountable. So this system only works when the judiciary respects its place in it—which is why President Bush has sought to appoint judges who do not come to the bench with an agenda. This is not to say that a judge cannot have personal views on a subject, but judges must be disciplined and not allow those views to affect their decisions. Some believe that the courts, including the Supreme Court, sometimes do impose their own policy preferences. I’d like to mention two judicial practices that I believe are unwise because they can lead to this result. The first is the use of foreign law in constitutional interpretation; the second is undue reliance on legislative history in statutory interpretation.
I am troubled by a growing tendency to rely on the laws and judicial decisions of foreign nations in interpreting the United States Constitution. This is problematic for at least two reasons.
First, it is anti-democratic. Foreign judges and legislators are not accountable to the American people. If our courts rely on a foreign judge’s opinion or a foreign legislature’s enactment, then that foreign judge or legislature binds us on key constitutional issues.
Second, reliance on foreign law in constitutional interpretation is unworkable. There are 191 members of the United Nations and even more judicial systems, all operating with different substantive laws. If an American judge wants to find a law consistent with his or her personal opinion, it can be found. Chief Justice Roberts in his confirmation hearing compared this to looking over the crowd and picking out one’s friends. As a practical matter, it may be impossible for even the most conscientious judge to avoid being arbitrarily selective in the use of foreign law.
The same analogy Chief Justice Roberts used to question reliance on foreign law has been used by certain Justices and others to caution judges against ignoring a statute’s plain meaning based on a claim that the text does not reflect the legislative intent. Congress, a democratically accountable branch, expresses its will through the words that Members of Congress ultimately agree upon after negotiation and then present to the President for his signature. That is the process set forth in the Constitution, and Congress should be held strictly accountable for the words they use in a statute. After all, the words of statutes are all that ordinary Americans have to measure their conduct against.
If the statute’s text turns out to be inconsistent with the legislative will, Congress can amend the statute. But for judges to ignore the statute’s plain meaning and look instead to legislative history invites the same type of picking and choosing of supportive statements that makes reliance on foreign law so fundamentally anti-democratic. The temptation is to seize on a bit of legislative history consistent with one’s personal policy preference. When a judge gives in to that temptation, he or she undermines the legitimacy of the judiciary and moves us further from a government of, by, and for the people.
I believe the President has sought to nominate federal judges who understand these points, who believe in the appropriate role of the judiciary in our constitutional system, and who seek to uphold the rule of law through judicial restraint.
We in the Executive Branch honor the principles I’ve described by assisting the President in nominating judges of that sort. The Senate honors those principles by confirming those judges after fair and dignified hearings. I believe that decades from now, when we consider the decisions of the judges and justices nominated by President Bush, we will be proud of the contributions they have made to upholding the rule of law and to our system of constitutional government. In my opinion, that is the best legacy any President could achieve.