Attorney General Alberto Gonzales rapped federal judges Wednesday for ruling on cases that affect national security policy. Judges, he contended, are unqualified to decide terrorism issues that he said are best settled by Congress or the president.
In a sharply worded speech directed at the third, and equal, branch of the government, Gonzales outlined some of the qualities the Bush administration looks for when selecting candidates for the federal bench. He condemned what he termed activist judges with lifetime appointments who "undermine the right of the people to govern themselves."
In nominating a judge, "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," Gonzales said in the 20-minute speech to American Enterprise Institute, a Washington think tank. "That, for example, a judge will never be in the best position to know what is in the national security interests of our country."
Gonzales did not cite any specific activist jurists or give examples of national security cases.
Pressed later for examples, he noted that Congress approved the Military Commissions Act, which authorizes military trials for terrorism suspects, four months after the Supreme Court ruled the trials would violate U.S. and international law.
"I don't think the judiciary is equipped at all to make decisions about what's in the national security interests of our country," Gonzales said. "How would they go about doing that? They don't have embassies around the world to give them that information. They don't have intelligence agencies gathering up intelligence information. ... It was never intended that they would have that role."
Carl Tobias, a constitutional law professor at the University of Richmond in Virginia, said it is inevitable that courts would decide some of the most contentious questions involving national security.
"Some of the most difficult issues are about national security, how to balance national security and civil liberties - especially in the context of domestic surveillance and enemy combatants," Tobias said. "Those are critically important issues that the courts are being asked to resolve."
Gonzales, a former Texas Supreme Court justice, also characterized efforts to retaliate against unpopular rulings as misguided. He mentioned a failed South Dakota proposal to sue or jail judges for making unpopular court decisions.
He also urged Congress to consider increasing the number of federal judges to handle heavy workloads and to offer them higher salaries to lure and keep the best ones on the bench.