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The Spectacle Blog
I really, really wanted to avoid any more posts on Gingrich this week, but the way he is demagoguing the judicial issue is just awful. I have looked and looked and can’t find a single respected legal/judicial expert — left, center, or most importantly, solidly conservative — who thinks Gingrich is on the right track in proposing A) subpoenaing judges to appear before Congress; B) having Congress consider impeaching judges for bad decisions (I editorialized against this idea when Tom DeLay proposed it years ago, so this has NOTHING to do with my feelings about Gingrich’s candidacy); C) having Congress eliminate judgeships to get rid of problematic (i.e. liberal) judges; D) having the president unilaterally decide he can ignore Supreme Court rulings. These are just horribly anti-constitutional ideas. Ed Whelan of the Ethics and Public Policy Center says so. Roger Pilon of CATO says so. Former GOP attorneys general say so. Ann Coulter (despite her bombast, a pretty good lawyer) says so. I could cite lots of other names in the conservative legal firmament (I chose those three just to give a sense of the breadth of the opposition to Gingrich’s idea, from traditionalist conservative to libertarian to eclectic); the point is that Gingrich is WAY off base here.
I say this as somebody deeply involved in the wars over the judiciary, for years, always on the solidly conservative side (for instance, I am 99.999 percent sure I was the first in print or cyberprint, something like six or seven months before the spots opened up, to write that Sam Alito would be the perfect choice for a S. Court judgeship). I agree with Gingrich that the imperial judiciary must be reined in. I am a firm advocate of passing laws to restrict the jurisdiction of various courts. That is an explicitly constitionally allowed option that just hasn’t been used. But Gingrich’s suggestions would completely upend the spirit of the Constitution and its balance of powers — not just recalibrate that balance, to bring judges back into line, but instead actually scramble everything in a way that would promote anarchy. If it were a serious proposal, it wouldn’t be conservative, but outrageously and dangerously radical. I don’t think it’s a serious proposal, though. I just think it’s Gingrich pandering and demagoguing, trying to stop his slide in the polls.
View all comments (38) | Leave a comment
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Bob K.| 12.19.11 @ 6:41PM
Yes he is pandering and demagoguing! Again! That is how he campaigns. That is how he thinks! Whatever charges the synapses inside his cranium at the time his mouth is open falls out as an inchoate thought that will never be completely formed as a useful idea!
Dai Alanye | 12.20.11 @ 12:43PM
The problem isn't merely that the courts are encroaching upon the legislative branch. A bigger problem is that Gingrich believes initiating a war between the branches of government is the best way to correct this.
The biggest problem is that during an election where the main issue - the winning issue - is the economy, Gingrich can't be prevented from bringing up extraneous matters like moon mining and disciplining the courts.
Al Adab| 12.20.11 @ 1:54PM
Dai:
Focus, as you say, is an issue. So is the activist Presidency envisioned by Newt. While he is a great strategist and idea man, that is not the same as being the Chief executive.
For too long we have expected The President to present as some sort of temporary dictator who proposes legislation, rules by exec order and commands the other ostensibly co-equal branches of government to obey his will.
A certain tension between branches is healthy but not to the extent proposed. Each has a particular funcion, a role, in the overall governance of the nation. No single one is the voice from Olympus ruling the people.
mzk1| 12.22.11 @ 7:01PM
Yes, but it's too late. The Courts have so abused their authoritity we need radical surgery. But this needs very careful work to make sure hte people are on our side. "Bad cases make bad law", and we would need a case where the public is outraged to get this to work. We are living in the days of Dred Scott and we don't need another Civil War.
That being said, Newt is NOT the one to do it; Ann is correct about that. Also, he is unlikely to follow through.
I like Quinn, but I don't understand why constitutionalists suddently ignore Original Intent on this issue.
Rob| 12.19.11 @ 6:52PM
Article III of the Constitution states in part re the powers delegated by the states to the judiciary: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior... In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Unless the term "good behavior" is up to judges themselves to define, it may be defined by Congress, which is also granted the power to make "Exceptions" and "Regulations" re the exercise of judiciary power. Presumably, then, Congress further has the power to examine the record of particular judges in order to determine whether such judges have acted in accordance with Congressional requirements re such "good behavior," "Exceptions," and "Regulations," so that Congress could properly decide whether or not any individual judge needs to be removed from office for violation of such requirements. In general, Congress does not have the constitutional authority to question any individual judge except in relation to such constitutionally-specified requirements (so far as I am aware). Gingrich may have a more substantive definition of "good behavior" so that it would include not only, say, taking bribes, but also ideological misconduct. I wonder how case law and sources familiar to the founders may help us understand the public meaning intended by the founders and the states signified by the relevant constitutional terms.
Zack| 12.19.11 @ 7:17PM
Ideological misconduct? Sounds like something from North Korea. Equating "good Behavior" with "good political views" is a bridge too far.
mzk1| 12.22.11 @ 7:02PM
Making decisions based on their own feelings instead of the law and Constituion is judicial misconduct and grounds for impreachment. Judicial Activism is not an ideology; it is a form of tyrrany.
Kevin| 12.19.11 @ 6:56PM
Gingrich is not wrong. The elitist snobs like the author of this piece are.
Controse| 12.20.11 @ 1:45PM
What is the harm in having Judges explain and defend to Congressmen how culture shifting "new law" decisions such as Roe v. Wade are derived from our nations founding principles as prescribed in our founding documents? Surely the author doesn't believe the incredibly small number of life-tenured elite lawyers otherwise known as federal judges are to define by their decisions what kind of society we are to have in America. When the courts change our culture it is time to restore balance by blunting the reach of the courts. The author stimulates chuckles by sighting statements by esteemed members of the legal priesthood to persuade his readers Newt has got it wrong. Members of the elite legal priesthood are the problem. Counter Newt on the merits or lack there of of his specific statements on the matter with arguments of your own if you have an interest in the problem of judicial law making.
mzk1| 12.22.11 @ 6:48PM
I like Quinn, but this argument makes no sense. The Federalist papers say the Court is the weakest branch. If it is not, something is wrong.
Impeachment is one of the "Checks and balances" given by the constitution. Judicial activism strikes me as a prefectly good ground for impeachment. And where does the Constitution allow for Judicial review? The President and Congress can ignore the court in their own spheres of influence if they disagree regarding the Constitution.
Otherwise, what checks or balances on the Court are there? Appointment power is not enough; the little I have read of the federalist papers tells me that the current role of the court is NOT the one envisioned by the writers of the Constitution. Quotes ot the contrary are welcomed.
Wayne| 12.19.11 @ 7:12PM
Of course we know that the US court system is defending the constitution. How can we possibly think anything is wrong.
L. Ross| 12.20.11 @ 8:04AM
Nice. I can smell the sarcasm through the screen.
RJ| 12.19.11 @ 7:18PM
I have been rooting for Gingrich since Perry flamed-out and his charge against the judiciary acting beyond its authority is legitimate, but I shudder at his solution.
There is no need to subpoena judges to explain their reasoning because they write judicial opinions to provide such explanations.
Impeachment for judges is based on high crimes and misdemeanors, not bad decisions. The appeals process has been developed to handle errors in law.
I suppose you could shut-down courts, but only if there wasn't a need for them due to less law suits. To turn around and open a new replacement court just isn't going to fly.
Regarding bad judges, I would be open to giving the Supreme Court authority to remove judges which it concludes violates judicial ethics, but we really don't want to have Congress (think of Nancy Pelosi, Barney Frank, Barbara Boxer, et. al) determine what is the right judicial holding. It would make the outcome much more political than it is today.
Unless Perry gets much better in a hurry, I still think Newt is our best choice, but his dialogue on the judges has me worried about another charge in the wrong direction (e.g. his past support for global warming & Freddie Mac/Fannie Mae). It also makes him an easy target for charges of extremism.
Rick V.| 12.19.11 @ 7:41PM
Bob Dole, John McCain and next it's either Gingrich or Romney. We are guaranteed four more years of the worst president ever. But as bad as Obama is, the Republicans can't find a candidate that can locate his or her own ass with both hands. Words fail me; the future of America looks bleak. That's four more years of Holder, of Reid, of the whole damned bunch. The American political system has failed the American people.
Mike w| 12.19.11 @ 8:45PM
You are absolutely correct. The whole two party system has failed. When a weasel like newt is our front runner. Newt who tried to make puerto Rico our 51st state, a man who supports amnesty, a man who sits with pelosi to advocate cap and trade.
Are you freaking republicans serious?
Larry| 12.20.11 @ 4:34AM
Only if a dunderhead like you stays home and forgets to vote! That is absurd to say that any of these guys is worse than Obama, completely absurd. Any of those running has a chance to beat the heck out of Obama in November 2012. Who would you run out there as a Presidential candidate? Maybe even Donald Duck could win. Not! Use your head; unless you want to run - but given your inability to think, I wouldn't even vote for you for dog catcher.
Kitty| 12.19.11 @ 8:38PM
Read what William Jacobson at Legal Insurrection has to say on the subject:
http://legalinsurrection.com/2.....-about-it/
sjccoach| 12.19.11 @ 9:31PM
He may be wrong but at least he takes a stand. Look at how the RINOs have rolled over on the confirmations of Kagan and Sotomeyor. Gingrich attacks which is something the RINOs like McCain, Graham and Romney refuse to do. Attacking at least forces the left to defend their judicial activists. The country suffered no harm when Andrew Jackson made his famous statement ont he First National Bank Court Case. "Justice Marshall has made his ruling now let me see him enforce it".
Kingofthenet| 12.20.11 @ 12:31AM
So in a Nutshell, Instead of THREE branches of Govt. We go with 2+?
L. Ross| 12.20.11 @ 8:24AM
Sadly, we don't have 3 equal branches of government. We have one branch which has subordinated the other two. Our current checks and balances are not working.
Larry| 12.20.11 @ 4:31AM
As a lawyer myself, I can hold forth on this subject. Newt's principles here are admirable. Some of his solutions are impractical. But indeed, the Federal judiciary in this country has far more power than it deserves or is allowed, in my opinion.
There are only several ways at this point to curb that power: (1) eliminate a number of federal courts altogether - part of the reason that federal courts claim they are "overworked" is that they make a lot of new work for themselves with decisions that increase the amount of litigation (the Supreme Court, especially "Sandy baby" O'Connor, was and is notorious for her "penumbras" that have vastly increased litigation on Constitutional matters, including the First Amendment Establishment Clause jurisdiction); (2) strip jurisdiction of certain matters before the Federal courts and the Supreme Court; and (3) yes, impeachment of judges who make consistently and flagrantly bad decisions - I can think of Anthony Kennedy, who should be the first one to go once Gingrich is elected, for his decision in the Boumidienne case, wherein the Supreme Court stood for the proposition that enemy alien combatants have habeas corpus rights. That judicial usurpation of Congress's and the President's war powers under the Constitution should be ignored.
So there is much to do. This is a crisis situation, I believe; not politics as usual. This calls for fairly radical measures. I will go down fighting for Gingrich's right to do this as President.
Controse| 12.20.11 @ 1:56PM
Hear, hear! Well said. Let's all quibble about the details but Newt is a genuine leader bringing this festering problem to America's attention. A judge voids the votes of eight million plus Californians on the question of same sex marriage. Surely the author of this post knows deep down this can't be permitted in a democracy.
Maxwell| 12.21.11 @ 7:04AM
Larry, I am not a lawyer & I don't play one on TV ( I have wanted to use that line for a long time), I'm a programmer. Just looking at my state (Jersey) we don't have CCW because the Supreme Court of Jersey doesn't think the Second Amendment applies to the individual.
Second, try reducing the funding of 'at need' schools., that is inner city schools. If not enough funds are available from property tax collection the state has to kick in. If the state does not supply enough to make up any short fall the courts get involved. We all knows gets the short end of the stick on that deal.
Last, as for school funding, Paul Mulshine of the Star Ledger of New Jersey has documented this problem many times. I'm not holding my breath for Chris Christie to appoint conservative judges like Mike Carroll.
Good thing I'm not in charge, the whole lot of our court would be out on their ear.
JP| 12.20.11 @ 7:48AM
Gingrich is wrong. But Quinn is not totally correct. Congress passed a law in 2006 that explicitly backed the President's constitutional authroity to act as Commander in Chief. It also explicitly removed the court's jurisdiction on this matter. A few years later SCOTUS rendered an opinion that gave foreign born terrorists habeus corpus rights. This opinion was in direct violation of what Congress passed in 2006. In this case, the courts not only negated the authority of the Executive Branch, but ignored Congressional authority. Congress has the authority to limit the jurisdiction of the courts - especially if they infringe upon the authority of the other 2 branches.
Mike 3/505| 12.20.11 @ 8:00AM
I originally thought Newt was correct in his pronouncement. I went and reviewed the applicable constitutional chapters, paragraphs... He is indeed correct.
However, once I heard the cacophony of the chattering classes decrying his statements, I ABSOLUTELY KNEW he was correct.
Regards,
Mike
Nancy in NC| 12.20.11 @ 8:22AM
First, I don't think Newt can beat Obama. We live in a country that votes for President like it's American Idol. Have you objectively looked at the guy? He's older than the electorate and fatter. He has "Barbie" for wife #3. And the guy is just totally unlikeable.
My idea of a Conservative must be different from most of those who post here. I believe that a conservative is someone who believes in a smaller, limited Federal government that actually embraces the 10th amendment. A true Conservative loves the Constitution and doesn't want to be king.
Newt would expand the Federal government (if that's possible), rule by executive order (much like Obama) and further erode the balance of powers if by a miracle he was elected.
PattyMor| 12.20.11 @ 9:12AM
Newt is better than Mitt. But is that what we are going to settle for? Newt's solution would start a witchhunt on judges. Don't you think for one minute that Liberals would LOVE to remove our conservative Supremes? The man should think before he speaks.
MachiasPrivateer | 12.20.11 @ 10:12AM
What you need is an actual case rather than a hypothetical. Say you subpeona Justice John Paul Stevens to defend his opinion in Massachusetts v. EPA in which he opined that carbon dioxide is "the primary species of greenhouse gas". That statement is false. Water vapor is both more prevalent and has a broader absorption band in the infrared range than carbon dioxide making it the primary species of greenhouse gas. The AGW crowd ignores water because their definition of "global warming potential" adjusts the value based on the average residence time of the gas in the atmosphere, a concept somewhat allied with half-life. Carbon dioxide's residence time is measured in decades whereas water is about 8 days (before it precipitates out). This artificial constraint ignores the fact that 70% of the Earth's surface is water which is constantly evaporating thereby replacing the moisture that precipitates out. Rather then decaying without anthropogenic replenishment, nature constantly replenishes the humidity in the air maintaining an average of about a 1% moisture content contrasted to less than 400 parts per million for carbon dioxide. Seen from space the earth has large banks of clouds.
Mother Nature does not observe an "exclusionary rule" for the facts. Let Stevens defend his opinion in public dressed in a suit rather than a robe. What's the problem, he wrote it so he should believe it and be ready to defend his opinion in public on TV under oath for the record? You wouldn't impeach him, you humiliate him to the point where he either asks his brethren to re-open the case or resigns.
See also http://tinyurl.com/7nkkg8a
Oldefarte| 12.20.11 @ 10:24AM
Correct, such dictatorial procedures are [and would be] completely unlawful and unjust. The judiciary's liberalism is only part of the overall liberalism existing within academia, and the only solution for same is to over time revise the university/college professorship philosophy through taxpayer-voters taking charge of schools' hiring practicies and procedures. Just as our legislatures are filled mostly with politicians having some connection to the profession of law, colleges/universities are dominated by liberal teachers/administrators which effectively crank out/graduate brainwashed toward liberalism graduates of not only their law shcools but every other school corriculium as well. When and only when the tea partiy movement spreads to apply their taxpaying funded influences over these schools will there ever become a change in all of their graduates mind sets and philosophies!!!!!
Al Adab| 12.20.11 @ 1:58PM
O/F:
The problem which I perceive with the proposal is the activist Presidency it envisions. What we need is a period of stability to help restore the balance among the three branches. We have for too long expected the President to operate as a sort of temporary dictator instead of a Chief Executive. Actiivism in the White House, overweaning regulation from Congress and dictats from the Courts are all to be avoided.
Oldefarte| 12.21.11 @ 11:40AM
Correct, absolutely AA! Ultimately IMO it all boils down to non-management/oversite by the American voting/taxpaying public though. In the '60's, I among most were guilty of this fault, in that I voted and thereafter [out of necessity and 24/7 wise] went off to attempt to solve my personal problems of work, family etc. The tea party movement is what has been needed for a long time, and hopefully these valiant/courageous people will continue their efforts. I believe for every active tea partier, there are maybe a hundred of us back-benchers cheering them on. Their current hand granading of the Senate's short term legislation regarding this payroll tax extension is an example of the tea party's efforts. What's needed going forward are just to continue the November 2010 political efforts/results and to enhance/extrapolate same regarding many other areas of life beyond politics [but connected to same nonetheless]. It IMO can be accompolished, but the only question is do the American taxpayer/voters have the will to succeed in accompolishing same????????
David T| 12.20.11 @ 10:30AM
Quin--Here's what one Thos. Jefferson, noted law graduate of Wm & Mary, scholar of the Constitution, and 3rd President of these United States, had to say on this issue: "The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815
Also: "My construction of the Constitution is... that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal." --Thomas Jefferson to Spencer Roane, 1819
Note that both of these statements came after Marbury v. Madison, 1803. Also note that Jefferson, when he was president, had no qualms about firing nearly half the federal judiciary.
Newt is right.
Loadmaster| 12.20.11 @ 10:49AM
Bottom line folks, like Herman and his 9-9-9 plan which got everyone talking about simplifying our Tax Codes, Newt has now got us talking about our Judiciary branch of government . It's about time. It's a bold step for him or any candidate to attack the left's most sacred cow. This is good for the process. Let's keep the chatter going - right up to the election because it needs to be addressed. You can thank Newt for that.
JimH| 12.20.11 @ 11:54AM
I agree. You may not like Newt's proposals but at least he will throw out an idea for discussion before it has been first fully tested and sterilized before some test audience
teflon93| 12.20.11 @ 1:00PM
Gingrich prefers not to be ruled by nine unelected oligarchs.
Would that Romney felt the same way.
NVA Patriot| 12.20.11 @ 1:11PM
...and current judicial rulings are NOT creating anarchy?
It's time that judges had consequence for bad action. The fact that judges have been so egregious that a large segment of the population is behind these thoughts is in keeping with every assessment that the federal government is out of control and must be reined in.
This is squarely the Judges created problem NOT any elected politicians’ - elected politicos are simply doing what they should do - represent their constituencies...and lots of people have had it with Judges over turning elected mandates; ruling against Christianity, ruling against traditional marriage, and ruling to increase the power of Washington at the expense of citizens, e.g. NRLB, EPA, Kelo, need I go on?
If judges want to be accorded respect they should respect the traditional boundaries of their decision making – beginning with the written word of the constitution as amended by large segments of our forefathers NOT by ‘Judicial Precedent.’ By that measure Judges should have stopped the Civil War with Dredd Scott. It did not work that way and there is a case to be made that DS was integral to causing the civil war – that would be judges operating with hubris not Constitutional principle.
Al Adab| 12.20.11 @ 2:01PM
Good insights. Please clarify the NVA in your moniker. Your post does not sound like the NVA I remember. Northern Virginia perhaps?
Lisa| 1.19.12 @ 6:26PM
We must get rid of these criminal judges however we can. Newt's way is fine. These judges are horribly abusing innocent people. We have all really lost our country now that unsuspecting innocent people are getting in trouble for peaceful speech.