WASHINGTON – Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime.
He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president's pre-eminent role in foreign affairs. "The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime," the attorney general told a conference on the judiciary at Georgetown University Law Center.
"Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review," Gonzales said.
And he said the independence of federal judges, who are appointed for life, "has never meant, and should never mean, that judges or their decisions should be immune" from public criticism.
"Respectfully, when courts issue decisions that overturn long-standing traditions or policies without proper support in text or precedent, they cannot — and should not — be shielded from criticism," Gonzales said. "A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches."
His audience included legal scholars and judges, including Justice Clarence Thomas, one of the Bush administration's most reliable supporters on the Supreme Court.
The attorney general did not refer to any specific case or decision but only to wartime, military and foreign affairs cases in general.
Gonzales has sent Justice Department lawyers into federal courts from coast to coast defending Bush's detention of terrorist suspects at Guantanamo Bay, Cuba, his plans to try some of them before military tribunals and his use of the National Security Agency to wiretap Americans without court warrants when they communicate with suspected terrorists abroad.
Over administration objections, the Supreme Court ordered that detainees could challenge aspects of their imprisonment in federal courts and overturned Bush's plans for military tribunals, forcing Bush to ask Congress to approve a new version of the panels.
A handful of federal district judges either ordered an end to the warrantless wiretapping or agreed to hear court challenges to it. Opponents of the plan argue the NSA program violates the Foreign Intelligence Surveillance Act's requirement that the government get a warrant from a court that meets in secret before wiretapping Americans to gain intelligence information.
The administration contends that despite the statute's language, the president has inherent authority from the Constitution to order such eavesdropping without court permission. Justice lawyers also have argued that the challenges to the NSA program should be thrown out of court because trials would expose state secrets. Most of the judges' rulings and proceedings have been stayed pending appeal.
Gonzales also said he thought more states should move away from having judges stand in partisan elections to keep their seats. Gonzales himself as a Texas Supreme Court justice "had to raise enough money to run print ads and place television spots around the state in order to retain my seat."
In such contested elections, "most of the contributions come from lawyers and law firms, many of whom have had, or will have, cases before the court," Gonzales said. "The appearance of a conflict of interest is difficult to dismiss."
He noted favorably that some states have adopted other ways of picking judges, including merit selection and appointment with simple up-or-down retention elections rather than contested campaigns. With polls showing many voters think judges can be swayed by campaign contributions, Gonzales said, "If Americans come to believe that judges are simply politicians, or their decisions can be purchased for a price, state judicial systems will be undermined."