Luncheon Remarks

Remarks given by Hon. Patricia Wald

Alliance for Justice’s Justice First! Luncheon

Wednesday, May 28, 2008

Washington, DC

This is an overwhelming honor made more so by the gathering of friends of all seasons – from the Legal Services days of the lat 60s (the law reform unit’s, lawyers, mostly women, crammed into a small office on 5^th St above the bailbondsmen); my public interest and D.C. Bar colleagues of the 70s, Carter Administration friends from the Department of Justice and the Hill, DC Circuit comrades and former law clerks, NGOers from that eternally optimistic community of relentless activists, campaigners of recent vintage and especially my husband Bob who endured and supported me through it all, and my litigator son Doug.  Just your being here makes it an unparalleled celebration.  It’s been a life, for sure.

            Nan tells me I have five minutes top, so I will forego chronicling the daunting challenges out there to our country’s constitutional principles, to our reinstatement in the global community of democratic nations, to the desperately needed change in our governance.  And I will talk only a little about courts, where I have spent my happiest and most satisfying years.  Independent courts are our unique contribution to the worlds jurisprudence.  It is the paradigm of our courts as ultimate guardians of the constitution and protectors of individual rights from official abuse that the most promising among the newly emerging countries of Eastern Europe and Africa have taken as models, going their own ways as to form and relationships with the other branches of government.  It was the courts that our Founding Fathers looked to to insure that the republic would remain free.  Yet now it is the courts that carry their constitutional burdens most insecurely.  They risk foundering from forces without and within. “The players come again,” as one of my favorite mystery writers titled her book.  Those who challenge our judiciary speak of “unelected,” “activist,” “imperious,” “countermajoritarian,” “freewheeling,” “undemocratic” jurists flouting the will of voters and elected officials.  They erect verbal “halls of shame,” stopping just short of threatening impeachment for judges who persist in rejecting their views.  As Ruth Marcus of the Washington Post pointed out recently, serious issues about the judiciary do abound that cry out for serious discussion.  How much deference should the courts give the other branches of government, particularly the Executive, and most critically in times of national crises?  How much deference to the Legislature in its efforts to calm economic spasms?  Where is the golden mean between national security and individual liberty?  Look hard but the answers are not spelled out in the text of the Constitution.  They require the talents of hundreds of good men and women in the judiciary to interpret that document to give words meaning in today’s world.  One can only hope that if (I prefer to say when) change and a new politic comes to Washington, the judiciary will recover its rightful place in the constitutional solar system.

            One thing I declare with certainty – a robust democracy is defined by a robust judiciary, with courts wielding powers fairly but fearlessly, reinforcing our constitutional integrity, and fending off overreaching by other branches of government.  That of course is the ideal evidenced, in my view, by Brown v Board, Loving v Virginia, Lawrence v Texas, Roe v Wade, Hamdi and Hamden.  I recognize that in the view of others these cases have given rise to accusations of “legislating from the bench” and never-ending demands for judicial restraint.  Yet these same critics do not censure the courts for going too far in overturning dozens of Congressional regulatory enactments, insisting fastidiously that Congress legislate in specific ways to make its clear intent enforceable, in erecting convoluted definitions of standing to keep injured persons out of court, and in uttering bizarre interpretations of doctrines like preemption to block states and private parties from moving to remedy wrongs in areas the federal courts have themselves abandoned.

            My conclusion in all of this is that the President’s power to nominate and the Senate’s to advise and consent on the appointment of judges are the only realistic outside influences (apart from impeachment and denial of resources) that constitutionally can be brought to bear on the independence of judges.  That is how the system is supposed to work but as I have often written in the past the process is by definition imperfect: nominations are heavily if not exclusively influenced by politics and philosophy; I think it a fair observation that few federal judges on the bench today would be there if a different Administration were in power at the time they were appointed; entire courts – my own former court is no exception – change majorities and public perceptions as political cycles change; so obviously does the Supreme Court.  Precedent is important but thee are so many new issues without guiding precedent that new judges almost inevitably portend new law.  Much more attention and thought needs to be given to making the confirmation process a more incisive inquiry, not so much in trying to extract the nominees substantive positions as in ascertaining their preferred modes of interpretation, constitutional and statutory, their attitudes toward access to the courts, principles of review and deference to the other branches.  I think the time is long past and the stakes too high for nominees to be allowed to refuse to discuss anything they have not already written or ruled upon.  Senators in turn should regard their powers to confirm as requiring a probing look into not only basic qualifications such as intelligence and personal integrity, but temperament, experience, openmindedness, breadth of exposure to the the issues of the day.  It is not enough for the inquiry to determine only that the nominee is smart and has no personal vices, (or has humbly renounced them.)  Voters too ought to give thought to those past jurists Presidential candidates cite as their models for future judicial appointments – currently from one candidate we have Chief Justice Roberts, Justices Scalia and Alito and from another Justices Harlan, Brandeis, Jackson and Warren. Those examples may be worth a thousand campaign slogans Alliance for Justice has played a major sometimes lonely role in past judicial nomination sand confirmations, introducing into the proceedings provocative, sometimes uncomfortable but always relevant information.

            Finally, I have one other worry about the courts.  That is what I see as increasing pressure to remove from their jurisdiction critical issues of liberty and security that dominate our post 9/11 era.  The Executive and the Congress as well, have too often been complicit in efforts to contract judicial reach.  And the courts have sometimes, alas almost too eagerly, relinquished their own delegated constitutional powers.  As a result they have been barred from treaty interpretation and applications invoked by the intended beneficiaries of those treaties, they have been denied by the executive and Congress the right to exercise the writ of habeas corpus for Guantanemo detainees, the “state secrets” privilege, originating in the courts themselves, has been extended to dismiss entire actions, by genuinely abused and injured citizens at the behest of the Executive and Congress has been told by the Executive it cannot legislate to redraw the critical lines between liberty and security, the courts have been cautioned by Congress not to rely on scholarly or judicial sources outside the United States – even to interpret international obligations; executive privilege has been reflexively raised to bar access by Congress and the courts to key information on possible executive abuses.  Government information has been excessively overclassified, often to keep it out of the hands of the press and the people.  The federal courts which have done a quite remarkable job of prosecuting and trying national security cases without violations of either security or due process are threatened with displacement by new, more restrictive and more secretive national security courts.  Once these new restrictions are incorporated into our law, the habeas experience suggests that they are very difficult to repeal.  We should all be concerned about these thousand cuts on the face of the federal courts.  Whoever he or she may be, the new President must be called upon to acknowledge and rethink this alarming prospective shrinkage of our most fundamental constitutional protections.

    So that’s it: I do love and treasure our judicial heritage; I am honored by the privilege given me to share in its history; and I am grateful for the diligence of the Alliance for Justice in its relentless efforts to preserve its strengths.  I hope next year to be sitting where all of you are, applauding the start of a new era for the courts and for all of America.  Thank you again.