American Enterprise Institute

January 17, 2007

[Edited transcript from audio tapes]

9:30 a.m.	Registration	(please arrive early for security and ID check)
10:00	Introduction:	Christopher DeMuth, AEI
	Address:	U.S. Attorney General Alberto R. Gonzales
11:00	Adjournment

Proceedings:

CHRISTOPHER DEMUTH:  Ladies and gentlemen, good morning.  Welcome to the American Enterprise Institute and to this speech by Attorney General Alberto Gonzales entitled, “Democracy and the Third Branch.”  His talk is obviously about judges and the judiciary.  He was once a judge himself, a justice of the Texas Supreme Court before his appointment by President Bush to be White House counsel in 2001. 

In critical respects, he is still a judge.  The Attorney General has many important responsibilities -- advising the President on legal and constitutional issues, evaluating proposed legislation and bills, resolving legal disputes within the executive branch.  But most important by far is the just enforcement of the laws of the land.  The federal, criminal and civil law is so vast, and in many respects is so general and open-ended that deciding which cases to bring and not to bring to trial on behalf of the United States, and which judicial decisions to appeal and on what grounds, involves discretion on the part of the Attorney General and his subordinates and involves the exercise of wisdom in farsightedness that is very like that exercised by judges in robes. 

The Attorney General is a native of the Lone Star State.  He graduated from Rice and from Harvard Law School.  He practiced law with Vinson and Elkins and held a variety of leadership positions in civic Latino and legal institutions before his appointment as Texas’s 100th secretary of state in 1997 and to its supreme court in 1999.  Please give a warm welcome to Attorney General Alberto Gonzales.

ATTORNEY GENERAL ALBERTO GONZALES:  Good morning.  I’m pleased to be here to talk with you about the federal judiciary, which is extremely important to me personally, and quite frankly, to my role as Attorney General.  It has been said many times that the greatness of the American system of government, what has allowed it to thrive, is its simple foundation in the rule of law.  That continues to be true today because of the protection afforded to the rule of law by our tremendous judiciary. 

Now, while my reverence for judges and the judiciary originated in law school and were molded during my service as a justice on the Texas Supreme Court, I have gained a deeper appreciation and understanding for the third branch since becoming an Attorney General nearly two years ago. 

The framers of the Constitution truly were inspired.  Think about it; this is something that I know when I travel around the world.  The way that they construe the judiciary, the way they did: they did it by appointment by the President, "with the advice and consent of the Senate," jurisdiction to hear only real "cases” or “controversies," life tenure during "good behavior." 

My remarks today will focus on what I see as three essentials to allowing our judiciary to continue to live up to the ideals of the Framers and preserve its place as a cornerstone of our constitutional democracy.  First, the judiciary must be strong and independent.  Second, for the rule of law in America to continue to be an example for the world, judges must understand and perform their proper role in our democratic society, as was intended by the Framers.  And third, the very best people must fill these important judgeships, people who believe in the rule of law. 

Let us take each one of these in order.  A strong and independent judiciary is necessary for our Republic to remain strong, for our democracy to survive and for the rule of law to flourish. 
And to understand what I mean by independence, let me first clarify what independence is not.  Judicial independence does not mean complete freedom from scrutiny or criticism.  Judges' decisions may be criticized and the nature of the job virtually guarantees it.  After all, in every court case there will be a loser.  Judges must resist the temptation to craft their opinions to avoid criticism or to seek approval, whether from the press, the public, the academy, or Congress. 

The Framers granted federal judges lifetime tenure precisely so that they would be insulated from these sorts of pressures.  Alexander Hamilton put it plainly in Federalist 78 when he wrote that lifetime tenure "during good behavior" is the "best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws."  Judges also can help to maintain their independence and shield themselves from public opinion by deciding cases on neutral principles, not by considering factors such as policy or the public mood that are appropriately considered by the politically accountable branches.

Let me be clear about one thing.  While criticism comes with the territory, I firmly believe that judges should not be subjected to retaliation for their judicial decisions, by budget cuts or through misguided efforts like the recent “jail for judges” initiative in South Dakota. 
Some have also suggested creating an inspector general for the judiciary who would answer to Congress.  I oppose this idea.  The judiciary should police itself and if it does, the other two branches should not intervene.  I believe the judiciary is making commendable efforts to ensure its integrity.  Justice Breyer’s recent review is a good example.  And it should go without saying that threats to the safety of judges or their families are reprehensible. 

I believe that judicial independence also would be strengthened if judges were paid more.  I'm not going to argue that federal judges are not earning a livable wage.  I'm not going to argue that the government can, or should, match dollar-for-dollar the potential private sector salaries these dedicated men and women could make.  But there should be some meaningful effort to increase salaries to allow the judiciary to attract and retain the best legal minds – lawyers who could find far more lucrative ways to ply their trade.  As Chief Justice John Roberts noted in his year-end report on the federal judiciary, "If judicial appointment ceases to be the capstone of a distinguished career and, instead, becomes a stepping stone to a lucrative position in private practice, the Framers' goal of a truly independent judiciary will be placed in serious jeopardy." 

Over the years, I have talked with too many potential judicial nominees who have politely declined consideration precisely because they do not feel they could afford to serve.  I hope that Congress will consider enacting a meaningful pay raise for judges so that future candidates for judicial office will not be faced with that choice, and so that judicial independence will be strengthened. 

The Congress also should enact legislation to create more judgeships to handle the overwhelming workload now clogging our court system.  Judicial workloads in most federal courts continue to increase, including crushing caseloads in the southwest border districts.  There is a strong and appropriate focus on detaining more undocumented aliens here illegally in this country, yet very little attention on the downstream impact upon the workload of prosecutors and judges.  Congress has not passed a comprehensive judgeships bill since 1990, despite tremendous increases in the number of cases being filed.  This is just a variation on inadequate pay for the tremendous work of federal judges.  Again, judges cannot carry out their constitutional duties adequately when dockets are stretched to the breaking point. 

Now, it is not enough for the courts only to be strong and independent.  Judges also must understand their role in our system of limited government.  I’m concerned that some have lost sight of the role of the judicial branch as I believe the Framers intended it to be.  I do not believe the Framers ever intended for the judicial branch -- the Supreme Court or the lower courts -- to make policy.  It is worth recalling Hamilton's famous words, again from Federalist 78: "The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will be least in a capacity to annoy or injure them."  In arguing that states should ratify the Constitution, Hamilton sought to allay the concerns of those who feared that courts would endanger the political accountability of lawmakers or Executive Branch officials.  In effect, he said, "Do not worry, courts will not be capable of arrogating to themselves the power of law or policy-making." 

Of course, the power and authority of courts, whether to improperly take policymaking power for themselves or to engage in legitimate decision making, is dependent upon the weight of their judgment.  That is, it depends on their credibility with the public and the other branches of government.  Judicial decisions are obeyed in large part because the judgment of the federal judiciary is respected.  But it is perhaps underappreciated that when courts apply an activist philosophy that stretches the law to suit policy preferences, they actually reduce the credibility and the authority of the judiciary.  In so doing, they undermine the rule of law that strengthens our democracy. 

In contrast, a judge who humbly understands the role of the courts in our tripartite system of government decides cases based on neutral principles.  He generally defers to the judgment of the political branches and respects precedent -- the collective wisdom of those who have gone before.  In so doing, the judge strengthens the respect for the judiciary, upholds the rule of law, and permits the people, through their elected representatives, to make choices about the issues of the day.  It is no accident that the person President Bush chose to head the judiciary, Chief Justice Roberts, made this point in terms all Americans could understand:  "Judges are like umpires.  Umpires do not make the rules, they apply them.  The role of an umpire and a judge is critical.  They make sure everybody plays by the rules.  But it is a limited role.  Nobody ever went to a ball game to see the umpire."
 
When judges uphold laws enacted by Congress and actions taken by the Executive Branch officials, they are sending a very clear message to the American people:  "You have chosen this path, and it is presumed to be the right one because you have chosen it."  If the American people disagree with a law the Congress has enacted or a policy of the Executive Branch, they have the right to vote Congress or the President out of office.  That is the method by which the Constitution keeps control in the hands of the people and keeps our limited government limited. 
It is my strong belief that activist judges who take that power into their own hands do not serve the Constitution or the people well.  They fundamentally misunderstand the role of a judge. 

I am also concerned about judges who imagine they see everything in society addressed in the Constitution.  It is worth remembering that the Constitution is a very brief document.  It defines the structure and authority of the federal government and protects a limited set of sacred rights.  It does not and was never intended to address every legal issue that might arise in our nation’s history.  Democracy is well-served when the Court says, in effect, "The Constitution simply does not comment on this issue." 

In contrast, constitutionalizing an issue takes it out of the democratic process.  If the people disagree with a court decision based on the law, they have a remedy in the political process.  Through their elected representatives, they can change the law.  But once a court declares a law to be unconstitutional or prohibits some agency action on constitutional grounds, it is limiting severely the options of the people.  Such a step should be taken only where it is clear that the Constitution has truly spoken on the issue and forbidden what the political branches have determined to do.
 
Of course, if a law or an agency action is unconstitutional, then judges, consistent with their oaths of office, should not hesitate to strike it down or prohibit it. But courts should exercise extreme caution.  Members of Congress and Executive Branch officials take an oath to uphold the Constitution just as judges do.  Courts that rush to invoke the Constitution to strike down the actions of the other branches sell short the wisdom and the prerogatives of the legislature, the President and the people of the United States. 

A judge with life tenure who gives his own views on political and policy matters greater weight than the considered viewpoint of the elected representatives of the people or who believes he alone knows what is the best policy can make great mischief.  The Framers understood this.  Hamilton said, "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the Legislature." 
Activist judges, those who on a pretense substitute their own views for the will of the legislatures, can find some rationale to support any outcome they desire.  They can find in legislative history some quote to support their viewpoint.  They can find a footnote in an earlier decision and extrapolate from that a new principle, despite what the language of the law itself says.  But in the end, distorting history or precedent to support a pre-determined outcome weakens the judiciary, undermines the rule of law, and harms our democracy.
 
Courts must protect people from the tyranny of the majority; that is certainly true.  But we must also guard against the tyranny that results when unelected activist judges, both on the Right and on the Left, undermine the right of the people to govern themselves.  As we recently have seen under our system of government, no legislative majority can expect to last forever, and no president can serve more than two terms.  As long as the people retain the power, I have faith that they will exercise it prudently.  When power is held by a few, however, we face a far greater danger.  There is a fundamental difference between the tyranny of the majority and the will of the majority.  Congressional majorities do not get to run roughshod over the Constitution, but if at the ballot box the people have decided they favor your policy goals, then you get a chance to set policy.  Right now, the Democrats control Congress.  Where they have the votes to enact laws supporting their policies, they should be free to do so without contradiction from activist judges who disagree with those laws on policy grounds. 

Now, just as judges must understand their proper role and strive not to subvert the democratic process, leaders of the political branches should not pass difficult questions to the judicial branch because they are unwilling to make tough choices or because they do not have the votes to enact clear language to advance their policy agenda.  This far too common occurrence puts the courts in an untenable position.  If there is a danger in judges removing policy discussions from the political sphere, then the political branches themselves should avoid encouraging that tendency. 

Now, as I have discussed earlier, the Constitution wisely protects federal judges from retaliation by providing them life tenure and forbidding Congress from reducing their pay.  Short of the extraordinary measure of impeachment, the only true check on judicial over-reaching is the judges themselves, this is why the President and I view it so important to select judges who embrace a philosophy of judicial restraint. 

The president promised to the American people during both of his election campaigns to select judges who understand the proper role of the judiciary in our constitutional democracy.  As his Attorney General, I’m charged with helping him find such people.  It is worth noting how we do not go about determining who shares the President’s vision of a good judge.  And I have been through hundreds of judicial interviews.  We do not ask about a candidate’s political views because judges are expected to set them aside when they don their judicial robes; these views are irrelevant as far as I’m concerned. 

Of course, to set aside personal views and rule according to the law is not always easy.  All judges will be tempted to abandon judicial philosophy on cases they really care about.  The good ones resist; indeed, the good ones will apply a misguided law as it exists and trust democracy to fix that law.  Nor do we ask how a judge would rule on a particular case or on a particular legal issue, and there are good reasons for this.  First of all, as Justices Roberts and Alito explained so well during their confirmation hearings, it would be inappropriate for a judicial candidate or a nominee to predict how he would rule on a case that is not before him.  Good judges keep an open mind in every case.  They listen to the arguments of both parties, read the briefs, study the applicable law, and only then make a decision about what the law requires.  Moreover, it would be inappropriate for a judicial candidate or nominee to make a promise to the President or to me or to the Senate about how he would rule on an issue.  This would undermine the independence of the judiciary and would be grossly unfair to the parties if such a case later came before that judge.  Imagine being the plaintiff in a case assigned to a judge who already had promised to rule against you. 

What we do look for, in addition to sterling legal qualifications and upstanding character, is a general philosophy of restraint.  We try to determine whether a candidate understands the respective roles of our branches of government.  We want to know whether he understands the boundaries of Article III of the Constitution.  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; that, for example, a judge will never be in the best position to know what is in the national security interests of our country; that a judge cannot hold hearings or conduct studies to understand all the possible implications of a policy decision.  We want to know whether he understands how judicial activism undermines democracy.  And we need to know that he can put aside his personal views when he takes the bench.  A judge who understands the importance of these principles will take the right approach in every case.  I believe that selection of judges in this mold benefits everyone, particularly Congress.  Fundamentally, judges who respect the rule of law respect the right of legislatures to make the law. 

Under our Constitution, the President has the prerogative to nominate judges who agree with this philosophy.  Of course, it is the Senate’s responsibility to decide whether to confirm the President's nominees.  I think it is fair to note that when the Framers provided for nominations to proceed with the advice and consent of the Senate, they assumed that body would at least consider the nominees. 

Today there are too many vacancies on the federal bench nationwide.  Many of these have been designated “judicial emergencies” by the Administrative Office of the U.S. Courts.  For the judiciary to be strong, to remain strong, it must be fully staffed.  Allowing vacancies on the bench to go unfulfilled does great damage to our courts in the short and long term, and it does not reflect well on the Senate.  The President has nominated, and is continuing to nominate, strong candidates to fill these vacancies, and we look forward to working with the Senate to confirm them. 

The Framers left us a great and powerful legacy when they created our judiciary.  Respecting the prerogatives of the Executive and the Legislature, yet strong and independent, the courts have a vital role in protecting our democracy and the rule of law.  President Bush has sought to nominate judges who appreciate this role.  I believe he has chosen men and women who do honor to the institution of the judiciary and to the Constitution.  They are men and women I think we can all be proud of. 

I want to thank you for giving me the opportunity to share with you just some of my views about judges.  This is a very important issue and I look forward to your questions.  Thank you very much.

[Applause]

MR. DEMUTH:  As the Attorney General said he would be happy to take a few questions.
 
ELAINE MITTLEMAN:  Hi.  I’m Elaine Mittleman a graduate of Michigan Law School. 
My question is: legal commentators have discussed recently that so-called shrinking docket at the Supreme Court and the use of the cert pool.  Do you have a philosophy or position about whether there is some ideal range of numbers of cases granted for review?  And also, if there should be a broader set of criteria than just simply a split in the circuits as to what cases are considered important to review by the Supreme Court?

AG GONZALES:  I have some.  Obviously , I would pay a great deal of deference to the court in deciding how to set its own agenda, how to set its own docket.  I know that Chief Justice Roberts certainly in connection with our early discussions with him -- and I think he also expressed during his hearings, I believe, and certainly afterwards during remarks he has made around the country -- has expressed a desire to look carefully at the shrinking number of cases heard by the court in recent years and to see whether or not the court can take on more cases. 
There are some very important issues that Americans care about, and obviously the war on terror has produced a number of very difficult questions that we ask the courts to resolve.  And so I think I have a great deal of confidence in our new Chief and I’m sure he will work well with the other members of the Supreme Court.  They will take the cases they believe the court ought to be considering.  At the end of the day I think every court does every term is they take the cases they believe are worthy to be considered by the members of that court. 

SUZANNE GOLDENBERG:  Good morning, sir.  I’m Suzanne Goldenberg from the Guardian newspaper.  I was hoping you could comment more directly on the decision of the Supreme Court regarding Guantanamo…

AG GONZALES:  Which decision?  Rasul, Hamdan…?

MS. GOLDENBERG:  Well, for example – yes, on the military commissions, sort of ruling those as unconstitutional in the context of your remarks just now.

AG GONZALES:  I’m not sure that the court [said that].  I do not think that the decision was based on constitutional grounds.  I think what the court said -- and we will take Rasul -- was that there was a statutory right to habeas for individuals at Guantanamo because of the level of control at Guantanamo.  They did not take a position as to whether or not there is a constitutional right to habeas. 

That is the reason why Judge Roberts in the recent Hamdan decision at the district court level declared that because the Military Commissions Act, which took away statutory habeas, Mr. Hamdan did not have the right to habeas because he was outside the United States.  If you look at the Supreme Court press, there is no constitution right to habeas.  That is our position that we have argued. 

With respect to Hamdan, the court announced that Common Article III did apply with respect to our conflict with Al Qaeda and the Taliban, despite contrary determination, and the court made the determination because Congress had spoken with respect to procedures relating to military commissions that the President had to follow those procedures unless there was a compelling reason not to.  And so based upon that decision, we went to the Congress and we got authorization from the Congress to do military commissions under a set of procedures.  We got further clarification regarding the application of Common Article III.  What does it mean to our men and women on the frontlines protecting America?  We responded to both those decisions and we adjusted our conduct accordingly, and obviously we respect the decision of the Court and we will do what we need to do within the law as certainly -- provided guidance by the Supreme Court to protect this country.

MS. GOLDENBERG:  [Off-mic]

AG GONZALES:  I stand by that statement.  I think that judges should exercise care in making decisions about to what is in the best interest of the national security of our country.  That, quite frankly, is a responsibility of those of us in the Executive Branch.  Of course, the Legislative branch has a role to play in that as well.  I think there should be deference. 

I think it is easy for me to say because I’m in the Executive Branch, but I try to imagine myself being a judge and getting some of these difficult questions presented to me.  What do I know about what is going on in Afghanistan, or what is going on in Guantanamo?  I think there has to be a recognition of the limits of the information you could possibly have.  That is the way our system of government was set up. 

I think that the judiciary should pay respect and owes a degree of deference to certain kinds of decisions and judgments and conclusions made by the legislative and executive branches, who ultimately are accountable to the American people.  If they make a bad judgment, they reach the wrong conclusion, the American people can do something about it.  But if a judge does it, it is much, much more difficult. 

HADLEY ARKES:  Hadley Arkes, Amherst College.  Actually, on the way to my question, let me just try to reinforce your answer from another angle.  I do not think there is any principle running deeper in the American regime than the notion of government by consent -- than the point that the security of the American people can never be placed in the hands of officers, whether in the parliament or on unelected judges, who bear no direct responsibility to the lives that are at stake.  I thought that position would be even clearer, and I was wondering at the time why the administration did not try to draw a sharper line.  You went to Congress to get Hamdan overruled in effect.  But I was wondering why you did not draw a sharper line and accuse the judges of going quite beyond independence to inserting themselves in places where judges really have no authority. 

But in that vein about judicial activism, the President often mentions that, and of course we also want to ask the President, “What cases do you have in mind?”  Now, I gather from what you said that you had Hamdan in mind.  Could we ask you that kind of question?

AG Gonzales:  You may ask me anything you want.

[Laughter]

MR. ARKES:  On that question of activism, are there any cases you might mention where you think that problem is exemplified?

AG GONZALES:  No, I’m not going to criticize any particular judges or criticize particular cases from this podium.

MR. ARKES:  [Off-mic]

AG GONZALES:  We do not talk about specific cases.  We do not do that. 

MR. ARKES:  [Off-mic]

AG GONZALES:  And that is a good question, because what we are trying to do is try to ascertain, try to judge how someone is going to their job not just next month but next year, 15 years, 20 years from now.  This is not science; it is really an art.  When people come in to interview, they, of course -- they read what we say.  People are going to feature interviewees; they are going to read this speech in terms of what we look for and so they will come in and they will be ready to spat out, regurgitate what I have said here, and, obviously, that is the minimum. 

But we also ask questions.  We give them an opportunity to articulate principle, to give us an opportunity to impress us with their analysis, their interpretation of the appropriate role of the judiciary in our system of government.  We just do the very best that we can, because we really mean it.  We do not think it is appropriate to ask questions about decisions, to ask question about policy or politics.  We just do not do it.  We do not give them hypotheticals. 

With respect to the first part of your question regarding Hamdan and why we did we not take it on, I think some would say that we sort of responded to it.  We went to the Congress.  The Supreme Court said we have jurisdiction to hear these cases, in which the Congress -- and the Congress agreed that the court should not have jurisdiction to hear some of these cases.  I would certainly call that a response to the decision by the court. 

PETER SCHOETTLE:  I’m Pete Schoettle from Brookings.  Thanks very much for coming.  I’m an immigrant here.  And I, unlike most people in this room, chose this country, I’m a naturalized American citizen.  I also had the privilege of representing the United States abroad as a Foreign Service officer.  Now one of the huge great things this country has done for the world is human rights.  And whenever I was overseas in tough places behind the Iron Curtain, Cold War and so on, I felt proud to represent the US because of what we have given to the world in human rights. 

And my question to you is the specific case of Padilla.  In other words, how can an American citizen be locked up for years without access to a court?  I’m not talking about Guantanamo, I’m not talking about cases in Afghanistan.  An American citizen, I would say that the action of locking up American citizens without giving them due process in a court has really tarnished our standing overseas. 

AG GONZALES:  There is a lot that I would like to respond to in that question.  First of all, with respect to Mr. Padilla, we are currently on litigation in his case.  I’m not going to say much about it, other than I will say that the last court to look at the question as to the legality of his detention was a Fourth Circuit ruling in our favor -- and in fact the President had the authority to do what he did with respect to that particular case. 

So that was the last word with respect to his detention.  I am concerned about our image overseas.  I’m concerned about the perception that somehow the United States is not fully committed to the rule of law, is not fully committed to the protection of human rights.  I think we could have done a better job certainly at the outset in being more forthcoming and explaining what we are doing, why we are doing it, to come out more forcefully and denounce some of the accusations that were being made about what we were doing.

Obviously, things like Abu Ghraib -- the occurrences there -- did not help us, and we condemn it, and 99 percent of our soldiers overseas are outstanding professionals.  They know what the rules are; they operate by the rules.  But when you have that one percent that engage in conduct that we saw at Abu Ghraib, it has been extremely, extremely damaging to the United States. 

And so, certainly, when I travel overseas I always talk to the media.  I always try to visit with groups like this one and have a dialogue about what we are doing and why.  I understand there is a perception problem, a media problem that we have to deal with because, quite frankly, we need the help of our friends and allies around the world to win this war on terror.  We cannot do it alone.  As great as the United States is, we need their help.  And, of course, we cannot be successful in this war against terrorism without the support of the Muslim community, the Muslim leadership.  They can be extremely helpful, particularly here in America, but they need to understand what we are doing.  They need to be reassured that in fact what we are doing is consistent with our values and consistent with the rule of law. 

REBECCA CARR:  My name is Rebecca Carr.  I’m with Cox Newspapers.  The blogosphere was alive yesterday with reports that the Bush administration is forcing out federal prosecutors across the country, US attorneys across the country, 11 so far, particularly the one in San Diego who took on the Duke Cunningham investigation.  Could you address the allegations that your office is being political in removing these US Attorneys?  And you just mentioned that you have a perception problem.  Is this part of that perception problem?

AG GONZALES:  Well, I’m not going to talk about individual personnel decisions.  It is not fair, quite frankly, to the specific US attorney.  I’m not going to talk about it publicly, certainly not from this podium.  I will say as a general matter, every US attorney serves at the pleasure of the President of the United States, as do I.  We can be asked to leave at anytime, anywhere, for any reason.  We all understand that when we signed up for this job. 

US attorneys by statute serve for a term of four years.  Each of these US attorneys who have been in the news have served for four years.  They have in essence served their terms.  We operate a huge organization, the Department of Justice.  And like any big organization, I have an obligation from time to time to evaluate whether [we can] do better in certain areas.  I think the American people expect that I would do everything I can to insure that we have the best possible people at the most critical positions around the United States. 

US attorneys are extremely valuable to the Department of Justice and to the administration.  They are my face.  They are the face of the administration in local communities.  I care very much about the leadership we have in those positions.  And so this notion that this was done without a great deal of care or consideration is one that is just simply not true.  So that is my answer to your question. 

TED FRANK:  Ted Frank, AEI.  Following up on Professor Arkes’s question, one of the reasons Hamilton said in Federalist 78 that the judiciary is the least dangerous branch was because of what was described in Federalist number 81 where, if the judiciary overreaches, Congress has the power to remove judges who overreach.  You mentioned that to your view, impeachment is an extraordinary remedy.  I was curious what remedy do you see for judicial overreach and judicial activism and whether the administration plans to take any steps in terms of asking Congress to remedy individual cases or anything of that nature.

AG GONZALES:  I think it is extraordinary in that it rarely happens.  Judges are extremely sensitive to any kind of criticism, based on my experience and just based on what I have been told.  They certainly understand and they are certainly aware of when there is public criticism or concern about a decision that they have rendered.  And so I think that the best -- certainly one, I think, important “check” upon the judiciary is to have these kinds of conversations, a dialogue, about what is the appropriate role of the judiciary in our society. 

I really mean it when I said judges should expect to be criticized.  If a decision is, in fact, lawless, if it is not based upon plain meaning of a statute of the Constitution I think it is appropriate to question, “Why did you reach this outcome?”  And so I think having these kind of discussions, even I do not agree with the level of rhetoric that sometimes occur in the Congress about a particular judicial decision, I think when Congress expresses concerns about a particular decision, I think judges hear that.  I think they genuinely hear it.  They understand it and I think there is a reconsideration about, perhaps, future decisions. 

PHIL LEVY:  Thank you.  Phil Levy, AEI.  Mr. Attorney General, I want to come back to your statement about the special deference set that justices ought to grant in cases involving national security and make sure I was clear on what the basis that you are arguing for is.  Is it the importance of the issues?  Is it the complexity of the issues?  Is it the prevalence of classified information? 

AG GONZALES:  I think it is simply an understanding of the appropriate role of each of the branches of government.  I do not think the judiciary is equipped at all to make decisions about what is in the national interest of our country.  How would they go about doing that?  They do not have embassies around the world gathering up information.  They do not have intelligence agencies gathering up intelligence information. 

So how are judges supposed to gather up the information, the collective wisdom of the entire Executive branch?  How are they going to gather up that information and make a determination as to what is in the national security interest of our country?  They are not capable of doing that.  They are not equipped to do that.  And the reason is because it was never intended that they would have that role; otherwise, I would think they would have been given the tools.  They do not have those tools because it is not their role and it was never intended to be their role.

MR. DEMUTH:  One last question.

TED GOLDMAN:  Ted Goldman from Legal Times.  Can you confirm roughly the number of judges in the federal circuit level that you intend to nominate over the next two years?  I understand this is supposed to be akin to what Clinton did in the last two years.  And, secondly, can you articulate in your mind precisely the types of judges that will not get through the Senate Judiciary Committee now led by Senator Leahy, and how you are going to walk the line between judges that you will find acceptable and he will find acceptable?

AG GONZALES:  Listen, you will have to ask Senator Leahy as to the second question in terms of what kind of judges will not get through.  Ask that to Senator Leahy.  I will answer the first question.  President Clinton, during his last two years in office with a Republican-controlled Senate, had 15 circuit court judges and 57 district court judges confirmed during his last two years with the opposing party controlling the Senate. 

We are in a similar situation; we are in the last two years of a Republican president, a Senate controlled by Democrats.  We obviously would be delighted to get 15 circuit court judges and 57 district court judges confirmed during these last two years.  We are going to be working as hard as we can to get as many nominations up to the Senate as quickly as we can, and then we look forward to sitting down with members of the Senate and try to get many of these good people confirmed.

MR. DEMUTH:  Mr. Attorney General, thank you for coming to AEI.  Thank you for your presentation.

AG GONZALES:  Thank you very much.