Outside the Beltway

Newt Gingrich’s Radical, Irresponsible Attack On The Judiciary

Newt Gingrich's ideas about the role of the judiciary are very dangerous.

Doug Mataconis · Friday, December 16, 2011 · 16 comments

One of the highlights of last night’s debate, or low-lights depending on how you look at it, was when Newt Gingrich went off on a nearly three-minute long rant on what he referred to as “dictatorial” courts and judges:

The exchange that summed up all of Gingrich’s strengths with the GOP base, and potential weaknesses in a general election, came over his plans for the courts.

They have become, he said, “grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.” He would force judges to testify before Congress about controversial decisions, and impeach judges and even abolish whole courts that handed down decisions he considers “radically anti-American.”

Megyn Kelly of Fox News pointed out that two conservative former attorneys general have called Gingrich’s ideas “dangerous, ridiculous, outrageous, totally irresponsible.” Gingrich’s response: “I’d ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges?” When Kelly said that was “highly criticized,” Gingrich rattled off historical events and said that “actually, as a historian, I may understand this better than lawyers.”

The Republican audience wildly applauded Gingrich’s attacks on lawyers, judges and courts.  But Paul may have been closer to the body politic when he noted in his plainspun language that “if you get too careless about abolishing courts, that could open up a can of worms,” including retaliation by partisans abolishing courts with which they disagree. He also said such a plan would be “a real affront to the separation of powers.”

Romney said there are already ways to “rein in excessive judges,” through impeachment and writing new laws. It was a solid answer but not a rousing one, in language as measured as Gingrich’s was over the top.

Here’s the video of Gingrich’s remarks:

Michele Bachmann also got in on the Court bashing fun, saying that “if we give to the courts the right to make law than the people will have lost their representation.” It’s a message that goes over well among Iowa social conservatives, who last year waged a successful effort to defeat three members of the Iowa Supreme Court up for re-election in retaliation for their vote in favor of a decision that legalized same-sex marriage in the state. Gingrich, Bachmann, and Rick Santorum have all referenced that battle and their support for it in repeated Iowa appearances, and the reaction of the crowd to Gingrich’s comments show just how popular their position is in the Hawkeye State. In addition, Gingrich has released a 28-page position paper on the Judiciary [PDF]  that is chock full of ideas that would, in effect, declare war on the entire idea of judicial independence. One of those ideas includes abolishing the 9th Circuit Court of Appeals, which James Joyner has already written about today.

Of course, there isn’t Republican unanimity on this issue. Ron Paul raised some well-founded concerns on the issue of  the political branches trying to put pressure on the Judiciary for decisions that are unpopular and, as Megyn Kelly noted, two former Bush Administration Attorneys General have spoken out vociferously against Gingrich’s anti-judiciary rhetoric:

Two former attorneys general under President George W. Bush have found a few things to like in Newt Gingrich’s position paper on reining in the authority of the federal courts, but other parts, they say, are downright disturbing.

Some of the ideas are “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle,” said former Attorney General Michael Mukasey.

In a 28-page position paper entitled, “Bringing the Courts Back Under the Constitution,” Gingrich argues that when the Supreme Court gets it wrong constitutionally, the president and Congress have the power to check the court, including, in some cases, the power to simply ignore a Supreme Court decision.

“Our Founding Fathers believed that the Supreme Court was the weakest branch and that the legislative and executive branches would have ample abilities to check a Supreme Court that exceeded its powers,” he argues.

Mukasey and Alberto Gonzales, in exclusive interviews with Fox News’ Megyn Kelly, said they are particularly alarmed by provisions such as allowing Congress to subpoena judges after controversial rulings to “explain their constitutional reasoning” to the politicians who passed the laws.

“The only basis by which Congress can subpoena people is to consider legislation. To subpoena judges to beat them up about their decisions has only — if they are going to say that has to do with legislation they might propose, that’s completely dishonest,” Mukasey said.

“I think we have a great government, a great country because it’s built upon the foundation of the rule of law. And one of the things that makes it great and the rule of law is protected by having a strong independent judiciary,” Gonzales said.

“And the notion of bringing judges before Congress like a schoolchild being brought before the principal to me is a little bit troubling. I believe that a strong and independent judiciary doesn’t mean that the judiciary is above scrutiny, that it is above criticism for the work that it does, but I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges.”

Muksasky and Gonzalez also didn’t look kindly on Gingrich’s idea of impeaching judges for making decisions that are unpopular:

While technically it’s possible for Congress to impeach a judge or eliminate a court, both Mukasey and Gonzales expressed serious concern about putting a judge’s job on the line based on his or her decisions.
“I would tread very, very carefully down the road with this notion that ‘okay, this judge has rendered a decision that we think is very unpopular and we’re not happy with it so we’re going to try to impeach this judge. I think that’s not healthy. I think the way you deal with decisions made by judges that you are not happy with is you win presidential elections. You elect a president who is going to appoint people to the judiciary who understand the appropriate rule of judges,” Gonzales said.

“That’s why they have a judiciary that’s supposed to be independent,” Mukasey added. “That’s why they have judges who serve guaranteed life terms who have salaries that can’t be diminished during their lifetime so that they are independent of political pressure.”

Of course, Gingrich’s attack on the Judiciary isn’t entirely new.  You can go as far back as the Nixon Administration and find attacks on the Supreme Court and judges in general who were handing down decisions beefing up protections under the 4th, 5th, and 6th Amendments for criminal Defendants and, of course, such attacks are quite common on the right when issues like abortion and the role of religion in government come into the picture. The politicization of the Judicial confirmation process has only amplified the extent to which the role of the judiciary in government has become a political issue, especially on the right where a strange devotion to majoritarianism (at least on social issues) has taken hold over the past several decades. Additionally, as I’ve noted before, pretty much all of the Republican candidates have proposed ideas to limit the authority of judges. Rick Perry wants to eliminate lifetime tenure for Federal judges, for example, and even eliminating the entire concept of judicial review as established in Marbury v. Madison. Ron Paul has spoken out in favor of Congress using its power to control Federal Court jurisdiction to prevent courts from being able to even consider certain types of cases (i.e., abortion). For a man who says he revers the Constitution, Paul’s willingness in this case to deny American citizens access to the Courts to assert their rights is really pretty disturbing.

Gingrich’s attack on the very idea of judicial independence, however, seems to go a step further, and for that reason is far more disturbing than the radical ideas that people like Perry and Paul have put forward:

At last night’s Republican debate Newt Gingrich, with Michele Bachmann in chorus, heralded a new and unprecedented procedure. In his picture of America under a Gingrich presidency, that Manhattan judge would receive a congressional subpoena to appear and give a sworn explanation of his ruling. Imagine that. A congressional committee with a significant number of right-wing show-boaters grill the judge. The first question the Manhattan judge might expect is whether he loves America. The remainder of the show is sufficiently clownish to boost Fox News’ ratings.

What Gingrich ignored last night, and what was only noted briefly by Ron Paul, is that under Article III of the Constitution, federal judges are appointed for life. Only personal misconduct can result in impeachment and removal. A judge may not be removed because of decisions with which Republicans disagree. Gingrich should be smart enough to know that subpoenaing judges is neither legal nor workable. But this historian also knows that the Army McCarthy hearings made for good television.

It’s also interesting to note the historical examples that Gingrich cited in his answer in the clip above, because all of them involve efforts by the political branches to either wrongfully interfere with judicial independence, or the assertion that the President and Congress can simply ignore a Supreme Court decision if they wish to. Under Jefferson, Democratic-Republicans impeached Associate Justice Samuel Chase, mostly because he was a Federalist but also in reaction to the Supreme Court’s assertion of the power of judicial review in Marbury v. Madison. Chase was tried by the Senate and acquitted, but the first battle had been fought. In 1832, the Supreme Court ruled in the Worcester v. Georgia that states did not have the authority to take land from Native American tribes. President Andrew Jackson, who was already committed to his policy of removing tribes such as the Cherokee and Seminoles from their lands in Georgia and Florida, is reported by some sources to have said “Justice Marshall has made his decision, now let him enforce it.” During the Civil War, President Lincoln ignored the ruling of Chief Justice Roger Taney, sitting as a trial judge as was the custom at the time, in Ex Parte Merryman that Lincoln’s suspension of the Writ of Habeus Corpus was unconstitutional. In fact, Taney, who had also been responsible for the infamous Dred Scott Case, was correct this time; under the Constitution only Congress is permitted to suspend the Writ of Habeus Corpus. When the Supreme Court repeatedly struck down elements of Franklin Roosevelt’s New Deal, he proposed a Court-packing plan that would have let him put enough friendly judges on the Court to out-vote the conservatives, a plan that even his fellow Democrats refused to sign on to.  And, although, not mentioned specifically by Gingrich, efforts to ignore, overrule, or nullify Federal court decisions were a topic of much discussion in the South during the Civil Rights Era, until the Supreme Court ruled that such actions are unconstitutional.

In other words, each of the instances cited by Gingrich in support of his attacks on the judiciary involves the political branches of government ignoring the judiciary, usually to the detriment of individual liberty. Say whatever you will about the circumstances of the Civil War, for example, but the fact remains that Abraham Lincoln was wrong when he unilaterally suspended the Writ of Habeus Corpus. Ultimately the case became moot because Lincoln released the people being held without charges being filed, but the fact remains that he was wrong, and yet Gingrich views him as an example of an admirable way for a President to handle the Judiciary. The same goes for the Jefferson, Jackson, and FDR.

As I noted when I wrote about the Republican war on the judiciary in October, proposals like those Gingrich advocates fly in the face of traditional conservative views on the role of government:

What’s somewhat ironic about all of this, though, is the manner in which traditional conservative views about the role of government have been turned on their head by those on the right who now criticize the judiciary for flouting the will of the majority. In the Founders Era, and even as recently as the era of William F. Buckley conservatism, majorities were something to be restrained, especially when they sought to pass legislation that sought to restrict the rights of the minority. Constitutional rights were put in place to protect those rights, and the judiciary was created, in part, to protect the minority from the majority. It has not always performed that task correctly, but when it does it doesn’t strike me as valid to say that the Court was wrong because it thwarted majority will. Many times, that is exactly what the Courts are supposed to do.

Of course there is nothing conservative about what Gingrich proposes on this issue. His proposals are,  as are many of his ideas, wildly and inappropriately radical. In his position paper, Gingrich engages in a wholesale attack on the structure of American government as established in the Constitution, and as it has existed for the past two centuries, proposing to replace it with a system where majorities are given even more control over the levers of state while minorities are increasingly denied access to the one branch of government most likely to protect them from a rapacious and oppressive majority.  It is an attack on the Constitution, on the Rule Of Law, and on individual liberty. The fact that it received so many cheers last night is very disturbing.