McConnell Says Supreme Court Justice Should Apply Laws, Not Make Them

Louisville, KY  — U.S. Senate Republican Leader Mitch McConnell delivered the following convocation address (as prepared for delivery) Saturday, May 9 at the University of Louisville Brandeis School of Law:

“Thank you for that very kind introduction. And thank you, Dean Chen, Dean Sealing, and members of the faculty, for giving me the honor of addressing the Class of 2009.

“A convocation address should be more enjoyable than most speeches I get to give, as the serious issues we face in Washington continue to mount. Take the growing public health concern over the swine flu.

“Just a day after Vice President Biden said he wouldn’t go anywhere in confined places, like an airplane or a subway, because of the swine flu, he rode a train from Washington to Delaware.

“Do you know what that means? Not even Joe Biden listens to Joe Biden.

“No, the vice president is a friend of mine, and we served alongside each other in the Senate for more than 20 years. Right alongside us, and still in the Senate today, is Senator Chris Dodd. The senator from the state of Connecticut is a proud graduate of U of L Law, Class of 1972.

“As you are moments away from receiving the degrees you have dedicated years of your lives to earn, take a look around. Remember your classmates. You’re probably going to be hearing about them — and from them — in the years to come.

“The University of Louisville Brandeis School of Law is a fine legal institution, and the men and women you meet here are the instigators and the innovators of the future.

“Graduates from U of L Law have gone on to serve the state of Kentucky in the legislature, the governor’s mansion, and on the Supreme Court. They are at the highest ranks of the law and business.

“Perhaps in not too short of time, a U of L Law graduate will ascend to the Supreme Court of the United States, and bring as much credit on this great school as Louis Brandeis once brought to his hometown.

“As you’ve heard, the highest court in the land has an opening. With Associate Justice David Souter’s retirement, President Obama will nominate and the Senate will debate the confirmation of someone new to take his place.

“Advice and consent for a president’s pick for the high court is one of the Senate’s most important duties, and one we take seriously. I’ve been fortunate to take part in several Supreme Court confirmations in my time in the Senate — including twice for chief justice, and for David Souter himself.

“With that experience, I’ve got some thoughts on what kind of jurist is best suited for our nation and its most esteemed court, as well as what process for Senate confirmation is fairest to the court, the nominee, and the country.

“It’s no secret to anyone who’s followed my career that I believe the role of a judge is to apply the law as written, not create law from the bench. To borrow a phrase from the Chief Justice of the United States, who visited our university recently, judges ought to be like umpires at a baseball game — they don’t make the laws, they apply them.

“Perhaps the best expression of this sentiment can be found in the oath of office every federal judge in America, by law, must take before ever hearing a case. That oath reads:

‘I…do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me…under the Constitution and laws of the United States. So help me God.’

“To answer a calling like that takes certain attributes. A superb intellect and legal ability. The highest personal and professional integrity. A wise, balanced temperament.

“And an appreciation that the Constitution grants judges life tenure so they can faithfully interpret the law, free from the political influences that informed those who wrote the law. Not so they can insert their own policy preferences into the law.

“Those are the qualities America has always looked for in its federal judges. Just as Americans deserve equal treatment in any court, America deserves judges at every level who will hear the cases before them fairly and impartially.

“Luckily for us, men and women who have these qualities, and who have demonstrated them through years of experience, are out there. They come from varied backgrounds, ways of life and regions of the country.

“Others, however, have a very different view of a judge’s role. Their view holds that interpreting the law as written, without favor for any particular policy or preference, should be abandoned in favor of pursuing policy outcomes that the judge prefers.

“They believe that judges should exercise the authority of legislators without having to bear the responsibility of legislators — that is, accountability to the people. That is not the concept of a judge the Founders envisioned.

“On the contrary — it’s one they emphatically rejected. Or as Justice Felix Frankfurter would put it one and a half centuries later, “The highest exercise of judicial duty is to subordinate one’s personal pulls and one’s private views to the law.”

“Yet, some politicians and jurists who hold the contrary view are very open about it.

“One senator on the Judiciary Committee, during a past debate over a Supreme Court nominee, said ‘we need to know whose side he is on.’

“One federal circuit court judge stated plainly that the court ‘is where policy is made,’ before adding, apparently sarcastically, ‘I should never say that.’

“I could cite even more examples. But what concerns me is where the president stands on this important question.

“During the campaign, then-Senator Obama said his criteria for picking a judge were not legal brilliance or a judicious temperament, but “empathy” — empathy, that is, for particular parties or groups over others. And the president emphasized that point again last week.

“This idea of “empathy” sounds appealing at first. After all, judges — especially those on the Supreme Court — hold a lot of power. And they ought to take care to use their power wisely.

“But you can see the problem with this view if you ever find yourself in front of a court and you’re not arguing for the party or group for whom the judge is empathetic. Suppose you happen to have, objectively, a very good case under the law. What fairness can you expect if the judge was appointed based on the ability to “empathize” with the opposing party?

“And anyone who’s ever been unfairly judged understands why “empathy” should not trump the rule of law.

“After all, empathy is mentioned nowhere in the inscription carved on the top of the Supreme Court building, which reads, “equal justice under law.” And nowhere is it mentioned in the judicial oath taken by our federal jurists.

“The president has many qualified candidates for the Supreme Court to choose from. And he certainly has the right to pick any one he chooses.

“But the Senate has an equally important part to play. And the impartiality of judges is one principle the Senate must vigorously defend.

“The Senate owes the American people and the nominee a full, free and fair debate. And as soon as a name is sent up Pennsylvania Avenue, I will work to ensure they get one.

“The next justice will immediately face several challenging, but critically important legal questions that will have an impact on our national and homeland security.

“One of those will be the constitutional rights of foreign fighters captured on the battlefield in the War on Terror.

“Perhaps to evade such thorny legal questions, the current administration has announced a deadline to close the secure detention facility at Guantanamo Bay within nine months — without having any kind of plan to contain these deadly killers.

“I hope it does not take that step without a plan to make America safer as a result. And I certainly hope it does not transfer these terrorists to American soil. Such a move will likely raise more legal questions than it settles. And it will increase the risk to the American people.

“The men housed at Guantanamo are ruthless killers. Americans deserve to know that their leaders are as serious about their safety as they are about the symbolism of shutting down Guantanamo.

“In a related matter, many in the legal community are watching the fallout from the administration’s decision to selectively declassify a number of the so-called CIA interrogation memos. I’ve spoken on this issue before, so let me say it again here:

“It was a mistake for the administration to reveal to al Qaeda terrorists the interrogation methods they can expect to face if captured. Releasing those memos has made America less safe.

“Now the administration has another important decision to make. Some are calling for the prosecution of the lawyers who had the difficult task of providing legal advice on a critical national-security measure at the onset of a new type of war.

“Punishing government lawyers for giving their honest legal opinions will diminish the intelligence community’s ability to protect the American people. It will deter intelligence professionals from relying on such opinions in the future. And it will discourage those who write them from giving their best legal advice.

“That could include some of you, who may one day go on to important posts in the intelligence community, the White House or the Justice Department.

“So I call on President Obama to speak out forcefully against prosecuting lawyers who gave legal advice.

“And on this issue, I’m proud to say I’m bipartisan. The president should protect not only the lawyers who served in the Bush administration, but also those serving in his own.

“Thanks to the efforts and sacrifice of many, we have gone nearly eight years without another terrorist attack on American soil. With our country united, that success can continue.

“But giving in to the urge to punish by prosecution would divide us at a time when it is essential we present a united and determined front to our enemies.

“The constitutional rights of foreign fighters, Guantanamo Bay, the role of a justice on the highest court in the land — these are serious issues. As lawyers, you will have the privilege of shaping them, as you launch your legal career.

“And if that prospect makes you excited, thrilled, even a little nervous — congratulations. You’ve chosen the right profession.

“Starting today, your life as a lawyer means a lifetime of tackling issues vital to our country.

“When your future comes, remember the opportunity began here, at the University of Louisville.

“Dean Chen, Dean Sealing, members of the faculty: Congratulations on continuing a proud tradition of discovery, discourse and discipline at the Louis D. Brandeis School of Law.

And congratulations to the Class of 2009 as you receive your degrees and step forward to a life of the law.

“Thank you.”