‘Rule of Lawyers,’ Not ‘Rule of Law’ Gaining Ground Abroad, Chertoff Says

By Kevin Mooney | November 21, 2008 | 5:58pm EST

Homeland Security Director Michael Chertoff (Photo Courtesy of Dept. of Homeland Security)

(CNSNews.com) – People who champion judicial restraint, “judicial modesty,” must engage political leaders overseas to checkmate the influence of activist judges who are using international law to push their agenda, said Homeland Security Director Michael Chertoff at the Federalist Society’s annual meeting in Washington, D.C., on Thursday.
The Federalist Society is comprised of conservatives and libertarians interested in the current state of legal order.
At a time when global trade, global travel, and the global war against terrorism are paramount, the United States cannot afford to withdraw from participation in international legal proceedings, even when foreign judicial bodies behave in a manner offensive to America’s interests, said Chertoff.
Counter-terrorism efforts that require international cooperation in areas involving finance and information exchange show that avoiding international law is not an option, he said.
“I don’t think the withdraw-and-retreat model will serve us well,” said Chertoff. “I have talked to my colleagues, not just lawyers, but government ministers and political leaders, and they are increasingly intrigued and interested in this debate.
“They are increasingly concerned about what is the right role for the judiciary and lawyers. I think there will be fertile ground for a vigorous, intelligent and honest debate about these issues,” he said.
A good starting point would be Eastern Europe, where the population has a “keen appreciation for liberty and a very keen appreciation for democracy,” Chertoff said. The argument for “judicial modesty” – not judicial activism – can be “planted and nourished” in this part of Europe, he said.
Unfortunately, the trend toward judicial activism has accelerated in other parts of Europe in ways that are detrimental to the United States, warned Chertoff, adding that it is leading toward a culture of “rule of lawyers” instead of “rule of law.”
There are many examples of this “judicial immodesty” at play in Thailand and Turkey, said Chertoff.  
The Supreme Court in Thailand, for example, removed almost the entire cabinet and a former prime minister from their elected positions based on “minor failings,” according to an independent research group, said Chertoff.
A similar court-driven effort to dislodge elected officials was also launched in Turkey, where the majority government survived by one vote.
“When I read headlines about judges banning political parties and saying the majority of political leaders are unfit or unable to hold office, it does raise questions about whether the role of judge as seen overseas is quite [the same] as the role of modesty we see here at home,” said Chertoff.
The Federalist Society has made gains in promoting “judicial modesty” in America, he said, but Europe needs the same type of effort.
There are four main flaws connected with the practice of judicial activism, which harm the cause of freedom and democracy, said Chertoff. Those flaws include the following:
1)      Judicial activism allows for private discretion and private interpretations of the law separated from a transparent, open and objective process.
2)      Judicial activism allows for judges to violate the separation of powers and to step beyond constitutional structures that provide them with the authority to have the final word.
3)      Judicial activism can push judges into areas where they lack competency and the right mix of skills. (Chertoff cited foreign policy decisions and intelligence gathering operations as examples where the judiciary should be reticent to interject itself.)
4)      Judicial activism could be also be damaging to the legitimacy of the court system over the long term. Judicial rulings are accepted as final and authoritative so long as judges act in a dispassionate, detached manner that elevates the law above political considerations.
Proponents of a restrained judiciary must be consistent in their views, even when it means particular decisions cut against their own ideological preferences, Chertoff warned.
This point was not lost on Andrew Connors, a second-year law student with Liberty University, who attended the meeting.
“It’s important to maintain coherence as it pertains to the proper role of the judiciary,” Connors said. “So long as the judge is upholding the law as it is written – that must be honored and respected, even if means you’re not pleased with public policy end of it.”
At Liberty Law School there are many students keen on Second Amendment rights and are concerned about the direction President-elect Barack Obama might take in this area, said Connors.
Obama “has talked about imposing restrictions on the cheap importation of ammunition, and this has been cause for concern,” said Connors. “But there’s not a constitutional question here about imports. So if a court were to uphold this kind of policy, I don’t think it would be appropriate to criticize the ruling. The objections should instead be directed toward the political branches.”
Connors also said he was pleased with the way the Federalist Society sought to include opposing viewpoints as a way of enriching the debate. This has been a goal of the organization since it was formed 26 years ago, Eugene Meyer, the Federalist Society president, told CNSNews.com.
“We make every effort to promote vigorous, civil debate that includes all sides,” Meyer said. “You can sharpen your own arguments once you know what the arguments are on the other side.”

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