National security and the rule of law.

• Author: Mukasey, Michael B.

I have long had a deep respect for the Federalist Society and for its principles, and so I feel particularly privileged to be at this podium tonight. For over twenty-five years, the members of this Society have committed themselves to vigorous and open debate about the pressing legal issues of our day and how they ought to be resolved under the constant and durable provisions of our Constitution. The Federalist Society is committed to taking the Constitution seriously and understanding it to be a legal document, rather than an empty vessel to be filled by the policy preferences of those who happen to be wielding the pen at any given moment. On this evening, I want to applaud your contributions to the nation's legal culture and your efforts particularly over the past eight years to elevate the discourse surrounding the most important legal and policy issues facing our nation.

It is my privilege to be here tonight with such distinguished guests, including members of the Supreme Court and the rest of the judiciary. There are also dozens of lawyers here who have served their country during this Administration, some of whom have now returned to the private sector and some of whom I have had the pleasure of working with during my tenure at the Justice Department. There are likely others in attendance who will have the opportunity to serve in the new Administration, all of which is a testament to those who founded this Society and who have a great deal to be proud of. The principles of the Society you founded have inspired a generation of lawyers and are now inspiring the next generation.

As we near the end of this Administration and as we approach the first transition that our government has seen since the attacks of September 11, 2001, I would like to focus on the successes of this Administration that relate to matters that concern this Society, the legacy that will remain when this Administration leaves office, and on a matter relating to our national security that I think should continue to receive the attention of this Society.

Perhaps of most obvious interest to the members of the Federalist Society are the judges and Justices whom the President has appointed to the federal bench. As the President recently explained to the Cincinnati chapter of this Society, he has sought out "judges who would faithfully interpret the Constitution-not use the courts to invent laws or dictate social policy." (1) With the help of many in this room, the President has succeeded in this effort and appointed many well-qualified and accomplished judges who have understood their role in interpreting--not writing--the laws.

Most notably, the President has appointed two members of the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito. These men are no strangers to the people in this room--indeed, they both spoke to this Society last year. Both of these remarkably accomplished Justices will continue to serve the Nation for many years to come, and we are grateful not only for their service but also for their approach to the difficult questions of constitutional law and statutory interpretation that the Court faces each Term. The President is rightfully proud of his selection of both of these men, and the Federalist Society should be proud of the role it played in supporting their nominations.

The President also has nominated, and the Senate has confirmed, many other well-qualified judges throughout the federal courts. Unfortunately, still other good and well-qualified people were denied the same opportunity. We have seen the nominations of skilled, experienced, and well-respected candidates delayed or frustrated through procedural tactics. Quite frequently, it has been hard for these nominees to receive a vote in the Senate or even a hearing before the Judiciary Committee. For those who never received a vote or even a hearing, I offer my profound regret. You deserved better.

Tonight, however, we should take note of our successes. Indeed, this Administration's judicial legacy includes sixty-one judges appointed to the courts of appeals and 261 judges ap pointed to the district courts. The President and the members of his Administration leave office in January, but these good judges will remain in place, many for decades to come.

The Federalist Society should be proud of the role it played in supporting these judges, but it also should be proud of the basis on which it did so. As the members of this Society recognize, the core meaning of judicial independence is independence from the political pressures and fashions of the moment. Otherwise, judges become simply politicians who are independent only in the sense that they have life tenure and so are not subject to the discipline of the political process--namely, elections. Although judges are appointed through a political process, once they take the oath they are confined to exercising a power that is, under Article III, judicial only. Which is to say, one that should involve a faithful, not a fanciful, reading of the laws and the Constitution.

I want to turn to another subject which I have taken from Day One to be my most solemn responsibility as Attorney General. That is ensuring that we put into place the institutions we need to keep our country safe from the continuing threat posed by al Qaeda and other international terrorists.

On September 11, 2001, nineteen terrorists inflicted the most catastrophic attack on our homeland since Pearl Harbor. What made that attack so devastating was not simply the toll inflicted on our country, but the idea that nineteen lightly armed terrorists could murder nearly 3000 Americans. The reality of such asymmetric warfare required...