The American Spectator

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.