New Jersey State Bar Association - The voluntary Bar Association of New Jersey, serving members since 1899.

CONTACT:Barbara S. Straczynski
Director of Communications

Letter to the Editor The Federal Courts: A Bastion of Democracy

Dear Editor:

U.S. Attorney General Alberto Gonzales recently criticized federal judges who “apply an activist philosophy that stretches the law to suit policy preferences.” Apparently he is unhappy with federal judges whose decisions in cases touching on national security issues have displeased the White House. Gonzales added that judges must defer to the President and Congress in such cases and “will never be in the best position to know what is in the national security interests of our country.”

The Constitution of the United States provides for a system of checks and balances between the three branches of government to prevent the over-concentration of power in any one branch. The Attorney General seems to suggest that the judiciary acquiesce in the decisions of the White House and Congress in national security matters. This would be a dangerous trampling of the constitutional authority of the federal courts. The separation of powers is a delicate balance that must forever be maintained. When we begin to diminish that balance and trade constitutional rights for security, we threaten the foundations of our freedom, giving those who oppose us what they really want, an end to our constitutional democracy.

The Administration should stop its attempts to undermine judicial independence by wrapping itself in the cloak of national security every time it fails to get its way. As a former judge, the Attorney General should know that judges are in the best position to understand the mandates of our Constitution. Administrations come and go but the precepts of our Constitution have stood the test of time and must not be undermined.

Wayne J. Positan, Esq.

President, New Jersey State Bar Association