Chertoff addresses power of judges at home and abroad

With increasing economic regulation and new national security challenges against terrorism, Homeland Security Secretary Michael Chertoff said judges will be treading into an area of decision making with little precedence. At the 2008 National Lawyers Convention by the Federalist Society for Law and Public Policy, Chertoff (who is not a member of the Federalist Society) said “with the emerging issues in national security, both domestically and over seas, the question of the judge’s proper role is once again going to come to the floor,” Chertoff said.

Judicial modesty, or restrictions on the ‘judicial creativity and manipulation’ of lawyers and judges, should be a “transparent, open, and objective process” said Chertoff. He added that partisanship should be subordinate to judicial modesty, even if it means passing law against one’s subjective interpretation of the law.

Chertoff described four problems that will arise from lack of judicial modesty: 1.) Private interpretation of an objective law, 2.) Deficient separation of power, 3.) Lawmakers’ skill sets aren’t adequate for all areas, and do not always have complete information (i.e. in the case of military strategy), 4.) Accepting rulings as authoritative and correct without legitimacy.