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Chief Justice John Roberts Jr. has made his strongest plea yet for judicial independence, even warning fellow conservatives to back off from attacking judges for unpopular decisions. Speaking Sept. 28 and 29 before a historic D.C. gathering of federal and state judges, lawyers, academics, and business leaders aimed at preserving a “fair and independent” judiciary, Roberts recalled former President Ronald Reagan’s definition of a judge’s duties. “The judge’s commitment to the preservation of our rights often requires the lonely courage of a patriot,” Roberts quoted Reagan as saying 25 years ago. “To the extent that attacks on judicial independence come from conservative quarters, I would commend to those quarters the words of the leading conservative voice of our time.” But Roberts also said attacks on the judiciary are “utterly bipartisan,” and a key to warding off such attacks is to use “self-restraint” in decision-making. “Judges are insulated from political pressure precisely because they are not supposed to be making political decisions but deciding cases according to the rule of law,” said Roberts. But the chief justice urged all to defend the judiciary. “Just as attacks on judicial independence come from all parts of the political spectrum, so should the defense of judicial independence.” At the same conference, sponsored by Georgetown University and the American Law Institute, Attorney General Alberto Gonzales offered similar remarks, defending the judiciary while warning judges not to overstep their authority. “It is essential that judges be courageous enough to do the right thing, motivated solely by a respect for the law, undeterred by criticism or the possible outcome of the next election,” said Gonzales. But he urged judges to retain “a proper sense of judicial humility.” Though he couched his comments in largely general terms, Gonzales went on to criticize high court rulings that have struck down Bush administration wartime measures. The Constitution gives the courts “relatively few tools” to intervene in military and foreign policy, Gonzales said, adding, “Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review.” While blended with implied criticisms of some decisions, the defense of the judiciary by Roberts and Gonzales was a notable response from two top Bush appointees to recent sharp criticisms, mainly by Republican lawmakers, of federal judges. Even as the conference was getting under way, the House Judiciary Committee endorsed a bill that would create an inspector general to oversee disciplinary complaints against federal judges — an idea that was bitterly criticized in corridor discussions throughout the conference. But the conference also focused on problems facing state courts, besieged by increasingly costly and political judicial elections. Though the consensus of the more than 200 participants was that judicial elections should be eliminated, there was equal recognition that these elections are here to stay in most of the 39 states that have them. Other areas of consensus were the need for enhancing jury service, increasing legal services to the poor, and improving public understanding of the courts. Participants urged the chief justice to give an annual “state of the judiciary” address that would highlight court developments in a visible way to parallel the president’s State of the Union address. Another measure urged by many, according to Stanford Law School professor Pamela Karlan, who summarized ideas offered by participants, was allowing broadcast coverage of Supreme Court hearings. “You are your own best advertisement for judicial independence,” Karlan said to the justices in attendance. The conference was conceived and launched by retired Justice Sandra Day O’Connor and Justice Stephen Breyer. At various times during the day-and-a-half-long meeting, five other Supreme Court justices attended, along with numerous state chief justices. Seeking to expand the discussion beyond lawyers and judges, O’Connor also persuaded the likes of billionaire investor Warren Buffett and Washington Post Chairman Donald Graham to attend. If O’Connor was the unstoppable force organizing the event, Breyer was its motivational speaker, offering an impassioned speech on Thursday that sought to explain the need for independent courts in terms that citizens could understand. Fair courts, independent from politics and pressure, are the key to economic and political stability, Breyer said. “You want prosperity? You want judges.” Businesses, he said, need to rely on enforceable contracts to expand. And when the Court tackles controversial issues ranging from abortion to the outcome of a presidential election (as in Bush v. Gore), Breyer said the public’s trust in the courts explains why its decisions will be obeyed. “No paratroopers — none. No bullets. No rocks thrown in the streets. That’s not what you do in the United States. It’s the rule of law.”
Tony Mauro can be contacted [email protected].

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