Newt’s war on the courts

posted at 5:00 pm on December 18, 2011 by Jazz Shaw

Given Newt Gingrich’s rather curious comments on the judicial branch of the federal government during last week’s GOP debate in Iowa, and the fact that he has doubled – if not tripled – down on them since then, two serious questions remain. While they draw raucous applause from conservative debate crowds, are these even remotely viable proposals and, perhaps more to the point, is he even serious?

As to the first matter, there’s more than ample evidence that these latest products rolling off the production line at the idea factory that is Newt Gingrich may have skipped over the Quality Control station checkpoint. Should federal judges not serve for life? Should they be subpoenaed to explain their less than satisfactory decisions to Congress? Can the president simply ignore their decisions if he/she finds them unacceptable? To get the full history of these suggestions – which are actually far from new – attorney Doug Mataconis provides an extensive tutorial. As usual, it’s fairly long with a lot of material to go over, but you’ll find the history of court cases and historical vignettes which provide the backdrop to where we stand today. But for a shorter summary, Gerald Shargel dots the i’s and crosses the t’s.

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.

Doug himself concludes with some of the weightier consequences.

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.

There’s more to it than that, though. One of the classic episodes from American history where this question arose early on was the 1832 SCOTUS decision in Worcester v. Georgia, where the high court held that individual states didn’t have the right to seize Native American lands. Andrew Jackson, already engaged in a process of effectively purging the indigenous tribes from Georgia and Florida was incensed beyond consolation. Jackson is recorded as responding by saying, “Justice Marshall has made his decision, now let him enforce it.”

It’s easy to write this off as a dusty trivia question from the early 19th century without pausing to consider just how terrifying that moment truly was. It wound up passing, but that period of executive revolt raised a question which has come up many times in our nation’s history during times of constitutional crisis. The Executive branch controls not only the military, but the civilian department responsible for law enforcement. What becomes of the courts if they can find no agent to enforce their decrees? Are they to pack up their black robes in hobo bindles and flee to Canada? At that point you may as well take down the tents, dim the lights and pack it in because the Great American Experiment has ended.

But none of this may wind up mattering very much in the case of Newt Gingrich, which brings us to the second question posed above. Is he really serious about this? To answer that one, I find myself reminded not of some historical figure from the early days of the nation, but the modern day master of bombast, Rush Limbaugh.

Some years ago, Ed Morrissey was discussing Rush with me and he provided a fairly lucid explanation for the man’s behavior. The vast majority of the time, he told me, Rush is pretty much just this guy who covers and comments on current events, politics and government news from a very conservative perspective. Sure, there’s the occasional story which enrages him and gets him shouting, but it’s nothing really out of line. But every once in a while he lets slip with something that gets the liberal blogosphere and the MSM setting their hair on fire. Depending on the comment, his critics will accuse him of being a racist, a sexist, a homophobe, or whatever the flavor of the week may be. But Rush always manages to somehow tiptoe the line so that it’s more of a dog whistle than an actual bark.

So does this mean that, deep down, Limbaugh is a racist or whatever? The answer is probably no, because what Rush is – first and foremost – is a showman and a businessman who knows that controversy is good, attracts more listeners and gets people talking about him. The same can be said for politicians trying to attract the high “ratings” of the voting public. As Shargel notes above, the Army-McCarthy hearings made for good television.

Still, as we find in a more recent update, Newt was back out on the trail today doing the Sunday morning shows and pitching the same ideas. And he manages to do it with a straight face.

Newt is hardly a stupid man, and he’s probably forgotten more American History than most of us will ever learn. He doubtless has not lost track of Article III. The more likely explanation is that this is something which was a designed play to create precisely this type of outraged conversation and earned media which keeps his name in the headlines without spending a dime of campaign money. And it doesn’t hurt that his most conservative primary voters and Tea Party enthusiasts, long frustrated with various decisions by the Supreme Court, eat it up with a spoon.

If Newt wins the nomination – and eventually the presidency – I expect this particular issue will be one that fades away down the memory hole as he becomes more busy with real world affairs. So maybe it was a crazy idea… crazy like a fox.

UPDATE: Karl adds his own thoughts on this subject in the Green Room.


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this will resonate with the base but not in the general

liberal4life on December 18, 2011 at 5:02 PM

What an unnecessarily incendiary headline. His view is reasonably rational and substantive even if you disagree with it.

Spirit Crusher on December 18, 2011 at 5:07 PM

oHHHHHH…Ohhhhhhhhhhhhh…as if President Herkel pays any attention to what the laws of the land are right now.

KOOLAID2 on December 18, 2011 at 5:10 PM

What an unnecessarily incendiary headline. His view is reasonably rational and substantive even if you disagree with it.

Spirit Crusher on December 18, 2011 at 5:07 PM

And not something he hasn’t been saying for many, many years

whbates on December 18, 2011 at 5:10 PM

There is no quality control system between Newt’s brain and his mouth.

ajacksonian on December 18, 2011 at 5:11 PM

We need Denver Broncos post. Looks like Tebow is about to lose. Denver is ahead 13-7. He’ll never come from ahead to win.

ZGMF_Freedom on December 18, 2011 at 5:12 PM

If Newt wants to fight to amend the constitution about judges thats his right but to say he will ignore the courts is a mistake.

gerrym51 on December 18, 2011 at 5:12 PM

Only personal misconduct can result in impeachment and removal.

What does that mean?

I know what I would think it means, but what do YOU think it means?

….and what do you mean a judge can’t be impeached because he/she/or gender non specific due to gender issues (not that there is anything wrong with that, so I’ve been told repeatedly, just to be clear) renders a decision with which you do not agree?

A judge could decree that El Presidente should hold his office for life because the voters really want him, and congress can’t remove the person since it’s just a bad decision and it’s not ‘personal misconduct’?

Skandia Recluse on December 18, 2011 at 5:13 PM

Gingrich should be smart enough to know that subpoenaing judges is neither legal nor workable.

Congress can’t subpoena the President, because “subpoena” literally means “under threat of punishment”, and the President is immune to any punishment other than impeachment. Judges, on the other hand, are in no way immune to the law, so I see no reason in the world why they can’t be subpoenaed to testify before Congress to explain their rulings. It may be bad politics, but it’s neither illegal nor unworkable.

Fabozz on December 18, 2011 at 5:13 PM

The American Judicial Sytem is broken and has been for quite a while now. Instead of simply deciding on the legality of a law it chooses to make it’s own laws. It has become rather common for its members to disregard the Constition and the rule of law and rule with their gut. It has been working outside of its assigned parameters and trampling on the legislature for decades.

It’s come to a point where we don’t even consider a law to be truly “passed” until the court has a crack at it and some legislators don’t even consider the Constitutionality of a law when voting on it becase “that’s the job of the courts.” Many special interest organizations don’t even attempt to get their issues written into law, they don’t make any attempt to convince people of their positions, but rather do an end run around democracy and find a friendly judge who will create new laws and new rights out of thin air. And if that judge doesn’t rule in their favor, they just try and try again until they find someone who does.

Putting in a few new people when others die or retire isn’t going to fix anything. The system needs to be reformed and the justices need to know that they answer to the American people just like every other branch. They have become above the law and above democracy, and it’s had horrible consequences in our country.

I don’t know if Newt’s way is the best way or not, but we need to do something, and we need to do it soon.

29Victor on December 18, 2011 at 5:14 PM

Judges may be appointed for life, but that doesn’t mean they are untouchable demigods.

SouthernGent on December 18, 2011 at 5:14 PM

Newt’s war on the courts

..it’s about time somebody stood up against judicial tyranny.

TeaPartyNation on December 18, 2011 at 5:14 PM

Newt the historian?

On “Face the Nation” today, Newt Gingrich said that Alexis de Tocqueville was a “Founding Father.”

Newsflash: Alexis de Tocqueville was a French nobleman. Not to mention he was born in 1805.

limitedgovt on December 18, 2011 at 5:14 PM

Jazz, you are missing the forest for the trees.

In his two books, “To Sava America” and his newest, “A Nation Like No Other,” Gingrich addresses the core point that our Founding Fathers created Checks and Balances, which over the past decades Democrats/socialists have attempted to dismiss or cover up…to create the misconception that “the Supreme Court is the be-all and end-all to matters.” So to say: The Decider (hah!).

Gingrich is right that the Executive and Legislative Branches can, should and must - when necessary – give that so-beloved-by-the-ACLUish-Left third Branch a righteous Constitutional B*tch Slap.

Don’t get lost in criticism of the details. Gingrich has the right intuition about this. Few if any other politicians have this knack (save Palin, as one delightful example). It would behoove the likes of HotAir writers to value, appreciate and praise this character. Better to light a candle, and all that…

Czar of Defenestration on December 18, 2011 at 5:14 PM

I remember seeing a link to an article on Drudge recently about a Sheriff Department refusing to execute an eviction notice on an eighty-three year old woman and her bedridden mother…

equanimous on December 18, 2011 at 5:15 PM

I agree with Newt more than I disagree. Something needs to be done to stop the activist judges who are destroying our culture.

Rose on December 18, 2011 at 5:15 PM

First and foremost, a betrayal of office oath and refusal to adhere to the Constitution from which their power is derived can and likely should be construed as a “personal misbehavior” of a Judge. And second, I am convinced that Newt’s real target is the appellate circles, not the Supremes – that would be too much even for his bloated ego.

Archivarix on December 18, 2011 at 5:15 PM

an eviction notice

equanimous on December 18, 2011 at 5:16 PM

The more likely explanation is that this is something which was a designed play to create precisely this type of outraged conversation and earned media which keeps his name in the headlines without spending a dime of campaign money.

Hey, you know what I bet would bet a lot of free media. If he went down to the National Archives, and poured gasoline on the Constitution, and held a book of matches while talking about the federal government’s role in fire safety.

Such talk is irresponsible to the nth degree, and makes out entire party look bad for tolerating it.

JohnGalt23 on December 18, 2011 at 5:16 PM

I still recommend just sending the power for this back to the states.

Constitutional Amendment that states that, Every X period of time, the states shall all gather together and give votes of confidence for each and every judge who has jurisdiction over them. Any Judge who cannot get a 50%+1 vote of confidence will be removed from office and a replacement appointed as per existing law.

astonerii on December 18, 2011 at 5:16 PM

Not Noot!

FlatFoot on December 18, 2011 at 5:16 PM

Given Newt Gingrich’s rather curious comments on the judicial branch of the federal government during last week’s GOP debate in Iowa, and the fact that he has doubled – if not tripled – down on them since then, two serious questions remain. While they draw raucous applause from conservative debate crowds, are these even remotely viable proposals and, perhaps more to the point, is he even serious?

Yes and yes.

Issuing subpoenas for judges doesn’t require any new legislation. All it requires is that Congress issue a subpoena like they do for anybody else.

The judiciary has become a set of tyrants. The executive and legislative branches possess the power to rein them in. It’s about time they did so.

Stoic Patriot on December 18, 2011 at 5:18 PM

That Gingrich might be at all serious about his remarks is a possibility that would disturb me greatly. If the American experiment has any hope of lasting another century or two, an independent judiciary remains essential. If it’s just political posturing, then less disturbing. It just surprises me that in his self-proclaimed historian persona he can make so much sense, and then in his politician persona, he can utter such hare-brained ideas.

ugottabekiddingme on December 18, 2011 at 5:19 PM

Issuing subpoenas for judges doesn’t require any new legislation. All it requires is that Congress issue a subpoena like they do for anybody else.

Stoic Patriot on December 18, 2011 at 5:18 PM

Anybody else… like the POTUS?

And what happens when the first judge tells them to shove their subpoena up their collective arse?

JohnGalt23 on December 18, 2011 at 5:21 PM

Gingrich is a tyrant who doesn’t care about the rule of law as long as he’s in charge. Either that or he’s a spineless panderer. In my opinion he’s both.

Keep this man FAR away from representing us.

Ruiner on December 18, 2011 at 5:21 PM

I have been giving Newt a long, hard, serious second-look, but on this issue he truly jumps the shark.

Just imagine Barack, Harry Reid and Nancy Pelosi claiming the right to threaten, subpoena and even arrest judges that hinder abortion rights or challenge union corruption or allow interrogation of al Quaeda operatives.

We would be howling and screaming bloody murder. So why is it OK when a Newt Gingrich proposes to do the same thing in reverse?

Always Right on December 18, 2011 at 5:21 PM

T e b o w 16
B r a d y 14

carbon_footprint on December 18, 2011 at 5:21 PM

Just like Rick Perry knows congress is not going to become a part time position for congressmen Newt knows this will never happen.

this is strictly red meat for the base

gerry-moderate republican-mittbot-nor sure where the base is but looking for it

gerrym51 on December 18, 2011 at 5:22 PM

So does this mean that, deep down, Limbaugh is a racist or whatever? The answer is probably no

A minor point, but the answer isn’t “probably no”, it’s no.

capitalist piglet on December 18, 2011 at 5:23 PM

If he went down to the National Archives, and poured gasoline on the Constitution, and held a book of matches while talking about the federal government’s role in fire safety.

JohnGalt23 on December 18, 2011 at 5:16 PM

Too bad it wouldn’t be there when he got there. The Judicial Branch has already burned it.

29Victor on December 18, 2011 at 5:24 PM

Gingrich’s ideas in this area are just plain bad. Even if he’s just trying to get media attention, it’s a mistake. Yes, some conservatives will love his proposals simply because they are against the judiciary, but other conservatives (and, I suspect, the public at large) will be turned off.

McDuck on December 18, 2011 at 5:26 PM

Ron Paul is the only candidate who respects and follows the Constitution, and he would continue to do so as president.

Give Ron Paul the power to veto legislation.

Dante on December 18, 2011 at 5:28 PM

Only personal misconduct can result in impeachment and removal.

Wrong!!! Article III says no such thing!
To quote from the 2nd sentence of the 1st paragraph,”The Judges, both of the supreme and inferior courts, shall hold their offices during good Behavior,….”.
What exactly “good Behavior” might mean is not elaborated upon or detailed at all. Might overstepping one’s boundaries be defined as a breach of “good Behavior”? It depends on who is doing the interpreting now, doesn’t it.
And since the Constitution does NOT establish that the Supreme Court is the SOLE interpreter of its intent, might there be a door that’s much more open than perhaps we’d imagined?

Lew on December 18, 2011 at 5:28 PM

Just imagine Barack, Harry Reid and Nancy Pelosi claiming the right to threaten, subpoena and even arrest judges that hinder abortion rights or challenge union corruption or allow interrogation of al Quaeda operatives.

Always Right on December 18, 2011 at 5:21 PM

Ironic that you’d mention a “right” that isn’t enumerated in the Constitution & wasn’t voted upon by any legislature, but rather created out of whole cloth by an activist Supreme Court in an abrigation of the role of Congress & the will of the American people.

But now it’s considered a “right.” Because 7 unelected people decided that it is.

29Victor on December 18, 2011 at 5:28 PM

The judges should be willing to defend their positions, not being willing to do so is the problem. Asking them to do so is not an extreme position.

Rose on December 18, 2011 at 5:29 PM

. The Michigan Supreme Court had found sobriety roadblocks to be a violation of the Fourth Amendment. However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. While acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued the state interest in reducing drunk driving outweighed this minor infringement.

svs22422 on December 18, 2011 at 5:29 PM

Newt’s War on the Courts

Judicial Dictatorship Challenged by Newt

FIFY

spiritof61 on December 18, 2011 at 5:29 PM

I always bet on Herman Cain for the Howard Dean “YEAHHHHHHHHHGH!!!!” moment, but I’ve changed my mind.

Perry/Rubio 2012

Marcus on December 18, 2011 at 5:29 PM

G o d 16
S a t a n 17

carbon_footprint on December 18, 2011 at 5:30 PM

The judges should be willing to defend their positions, not being willing to do so is the problem. Asking them to do so is not an extreme position.

Rose on December 18, 2011 at 5:29 PM

They do so. From the bench. That’s their job.

JohnGalt23 on December 18, 2011 at 5:31 PM

These comments by Newt are stupid and make us all look like lunatics. If you are so intent on changing the Judiciary, WIN MORE ELECTIONS. Amend the Constitution, gain convincing and long-lasting supermajorities. But these remarks are probably going to make him lose. He just lost me. I guess it’ll be Mittens (sigh).

DocinPA on December 18, 2011 at 5:32 PM

Thou shalt not legislate from the Judicial Branch. Legislation comes from the House and Senate. Period.

Let’s get back to basics.

I trust Newt over Romney. If Romney is the nominee I will reluctantly support him, but I think we’ll end up with Obama-Lite. Less filling, more fake.

Key West Reader on December 18, 2011 at 5:33 PM

What exactly “good Behavior” might mean is not elaborated upon or detailed at all. Might overstepping one’s boundaries be defined as a breach of “good Behavior”? It depends on who is doing the interpreting now, doesn’t it.

You don’t seem to understand how this works. If a federal judge is ruling on a matter of federal law (or the Constitution) he is, ipso facto, within his boundaries.

theodore on December 18, 2011 at 5:33 PM

But doing it from the bench, with no accountability.

Rose on December 18, 2011 at 5:33 PM

They do so. From the bench. That’s their job.

JohnGalt23 on December 18, 2011 at 5:31 PM

Really?

Key West Reader on December 18, 2011 at 5:34 PM

Ironic that you’d mention a “right” that isn’t enumerated in the Constitution & wasn’t voted upon by any legislature, but rather created out of whole cloth by an activist Supreme Court in an abrigation of the role of Congress & the will of the American people.

But now it’s considered a “right.” Because 7 unelected people decided that it is.

29Victor on December 18, 2011 at 5:28 PM

The Constitution limits the federal government, not the people. I’d also refer you to the Tenth Amendment.

Dante on December 18, 2011 at 5:34 PM

under Article III of the Constitution, federal judges are appointed for life. Only personal misconduct can result in impeachment and removal

Where does it say “personal misconduct” in the Constitution? It says “good Behavior”, and that can’t possibly mean that a judge can legislate from the bench or betray the Constitution in any way.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Buddahpundit on December 18, 2011 at 5:36 PM

You don’t seem to understand how this works. If a federal judge is ruling on a matter of federal law (or the Constitution) he is, ipso facto, within his boundaries.

theodore on December 18, 2011 at 5:33 PM

One man, or one woman, should not be able to override the will of The People, by and through their elected representatives. America is a Representative Republic not a “Democracy”.

Thou shalt not legislate from the Bench. Period. End of story.

Key West Reader on December 18, 2011 at 5:36 PM

Issuing subpoenas for judges doesn’t require any new legislation. All it requires is that Congress issue a subpoena like they do for anybody else.
Stoic Patriot on December 18, 2011 at 5:18 PM

Anybody else… like the POTUS?
And what happens when the first judge tells them to shove their subpoena up their collective arse?
JohnGalt23 on December 18, 2011 at 5:21 PM

Yup – a total comedy or errors would ensue. Also consider: Newt decides he doesn’t like “Judge A”, so Newt has him subpoenaed. Judge A goes to Court and “Judge B” kills the subpoena. An endless loop for years, if Newt wishes, until the Supremes also join in dismissing the goofball idea that went nowhere.

whatcat on December 18, 2011 at 5:37 PM

Why shouldn’t they have to explain their actions in relation
to the law and the constitution?

Amjean on December 18, 2011 at 5:37 PM

Thou shalt not legislate from the Judicial Branch. Legislation comes from the House and Senate. Period.

Key West Reader on December 18, 2011 at 5:33 PM

Yep. The courts have been oversteping their consitutional mandate for decades now. They were intended to be the weakest branch but in many ways have become the strongest.

Now we have a president legislating through executive orders & regulation and courts legilslating from the bench and knocking down the expressed will of the people. Where does the will of the people come in in all this? Where are the “checks & balances?”

29Victor on December 18, 2011 at 5:38 PM

The courts are unelected. There needs to be a way to make them accountable to people who are elected. Coequal does not mean greater than. There has to be a system to overturn the court as there is a way now to overturn decisions by coungress and the president.

Rose on December 18, 2011 at 5:38 PM

One man, or one woman, should not be able to override the will of The People, by and through their elected representatives. America is a Representative Republic not a “Democracy”.

Thou shalt not legislate from the Bench. Period. End of story.

Key West Reader on December 18, 2011 at 5:36 PM

What do you think of the president’s veto power?

Dante on December 18, 2011 at 5:39 PM

One other thing – perhaps the threat of having to explain their
actions would prevent some of them from some of the wacky decisions
they make, mostly for political reasons, disregarding the rule of law and the constitution.

Amjean on December 18, 2011 at 5:39 PM

The Constitution limits the federal government, not the people. I’d also refer you to the Tenth Amendment.

Dante on December 18, 2011 at 5:34 PM

Sorry, I don’t understand your point.

29Victor on December 18, 2011 at 5:39 PM

Anybody else… like the POTUS?

And what happens when the first judge tells them to shove their subpoena up their collective arse?

JohnGalt23 on December 18, 2011 at 5:21 PM

That’s when you get to place them under arrest. It’s been done before and it can be done again.

Stoic Patriot on December 18, 2011 at 5:39 PM

There has to be a system to overturn the court as there is a way now to overturn decisions by coungress and the president.

Rose on December 18, 2011 at 5:38 PM

There is.

It’s called a constitutional amendment.

JohnGalt23 on December 18, 2011 at 5:40 PM

One man, or one woman, should not be able to override the will of The People, by and through their elected representatives. America is a Representative Republic not a “Democracy”.

Then why are you arguing in apparent support of a direct democracy, where the almighty “will of the people”, regardless of whether that will is constitutional or even wise, should by default override judicial opinion?

Thou shalt not legislate from the Bench. Period. End of story.

Every judge “legislates from the bench”. It’s called case law. The pattern of interpretation of statutory and constitutional language is itself a form of law.

theodore on December 18, 2011 at 5:41 PM

That’s when you get to place them under arrest. It’s been done before and it can be done again.

Stoic Patriot on December 18, 2011 at 5:39 PM

Arresting members of a co-equal branch of government?

Are you high?

Is Newt Gingrich high?

JohnGalt23 on December 18, 2011 at 5:41 PM

I think what Newt is trying to say is something that we conservatives inherently believe: If most of these Democrats had been alive in the mid to late 1700′s they would have sided with the British. And, where Congress or the Presidency is concerned, we realize we’re going to win some elections and lose some elections. That’s a Representative Republic.

BUT, when we have those types in places where they’re there for life, it’s totally different. We end up being ruled by people who would have opposed the very establishment of this Country in the first place. And some of them are just a little TOO good about covering it up until they get into a position where they can’t be kicked out. I understand Article III but there has to be some solution to this problem. More to the point, there is not one person in Government who is above criticism. And too many judges think they never deserve to be questioned or pressured. That’s what I hear when I hear Newt talk about the Judicial Branch.

Govicide on December 18, 2011 at 5:41 PM

The president can veto Congress and Congress can overturn the veto. There is no such check on the power of the Court.

Rose on December 18, 2011 at 5:41 PM

One other thing – perhaps the threat of having to explain their
actions would prevent some of them from some of the wacky decisions
they make, mostly for political reasons, disregarding the rule of law and the constitution.

Amjean on December 18, 2011 at 5:39 PM

They already do, in their rulings and written opinions. Why do people not get this?

Dante on December 18, 2011 at 5:41 PM

Thou shalt not legislate from the Judicial Branch. Legislation comes from the House and Senate. Period.

Key West Reader on December 18, 2011 at 5:33 PM

This is what happened when law went from being decided on Constitutionality to allowing judges to make decisions with their “understanding ” of the law.

Rio Linda Refugee on December 18, 2011 at 5:41 PM

Yes, judges already explain their reasoning by issuing opinions which anyone in the world can read if they so desire. You may or may not agree with a particular decision (heaven knows there are many I disagree with), but I can’t say that I can think of any significant SCOTUS ruling that didn’t have a majority opinion explaining the reasoning of the Court. Thus, I see no need to bring them in front of Congress unless the purpose is intimidation, which I don’t think is acceptable.

McDuck on December 18, 2011 at 5:42 PM

What do you think of the president’s veto power?

Dante on December 18, 2011 at 5:39 PM

The president is one of those elected representatives.

29Victor on December 18, 2011 at 5:42 PM

The president can veto Congress and Congress can overturn the veto. There is no such check on the power of the Court.

Rose on December 18, 2011 at 5:41 PM

You didn’t answer the question.

Dante on December 18, 2011 at 5:43 PM

I seem to recall some judges having their pay whacked or lost jobs for not doing what they were suppose to do. It made the other judges sit upright and fly right.

Anyone chime in? I remember reading it but can’t recall…

gdonovan on December 18, 2011 at 5:43 PM

Stoic Patriot on December 18, 2011 at 5:39 PM

when has a judge been arrested for ignoring a subpeona from congress requiring him to give testimony on why he/she ruled a certain way?

chasdal on December 18, 2011 at 5:43 PM

Politically this is a dumb issue. The country rightly or not reveres the court but they hate Congress. I don’t think it would fly to have judges being called before that gallery of buffoons to be heckled over their decisions. Obama called out the Supreme Court in a SOTU speech and we all went wild on him, rightfully so.

Well-crafted legislation that passes Constitutional muster can win out over activists justices. We don’t need a mental case like Gingrich igniting a Constitutional crisis when we have so many other pressing matters to deal with.

He is right to raise the issue but his prescription for dealing with it is a mess. This is his MO on pretty much everything. He throws out some red meat to get some cheap applause but after you think over his plan for 2 minutes you realize it is absurd. It’s Romney. I have been saying it for months. Conservatives were right about Newt 90 days ago when we all thought his candidacy was a joke.

echosyst on December 18, 2011 at 5:43 PM

Every judge “legislates from the bench”. It’s called case law. The pattern of interpretation of statutory and constitutional language is itself a form of law.

theodore on December 18, 2011 at 5:41 PM

This is where the process went off the rails.

Rio Linda Refugee on December 18, 2011 at 5:44 PM

Brady 23
Tebow 16

liberal4life on December 18, 2011 at 5:44 PM

Yeah this eliminates Newt, but then again Obama just plain disregards the laws, does that eliminate him? Nah he goes on his merry way while we just destroy our selves with petty arguments.

We have all our Nostradmuses telling us who is and who isn’t electable. Why have an election, just let these seers make the decision for us. Palin was unelectable, Bachmann is unelectable, ect, although no vote has yet been cast. Well I guess I’ll add my 2 cents Romney is unelectable, and will cost us the Senate and the house. He will just flip flop us to a defeat that should be a landslide victory.

jainphx on December 18, 2011 at 5:45 PM

California went the constitutional route regarding gay marriage. An activist judge said this was not allowed. The court did not respect the process.

Rose on December 18, 2011 at 5:45 PM

Just more proof that Gingrich has never been a conserative. I’m happy he is saying things like this now rather than during the general. Time to cull him from the herd!

bs4948800 on December 18, 2011 at 5:45 PM

Another half-baked idea. Newt doesn’t seem to think some of these ideas through. I guess with the good, you gotta take the bad as well.

DavidR on December 18, 2011 at 5:47 PM

This is where the process went off the rails.

Rio Linda Refugee on December 18, 2011 at 5:44 PM

In that case, the process was never on the rails to begin with. The American judicial system inherited the concept of common law directly from England. It’s been there right from the start.

theodore on December 18, 2011 at 5:48 PM

Gingrich is more right than wrong here, at least in acknowlgeding that we should never have arrived at the point where any major social question requires the approval of nine legal elites. If it is dangerous to put too much power in the hands of congress or states, is is not even worse to concenterate it into a few unelected people?

I’m more concerned with what will occur when Gingrich is asked about the more conservative and recent examples of judicial fiat. Will the base respond well to his answers regarding Citizen’s United, or DC v Heller? Or will he just dodge and claim that these will somehow be sacrosanct while other decisions won’t be?

lemur on December 18, 2011 at 5:49 PM

A federal judge threatened a school superintedent with jail if the words “invocation” or “benediction” were uttered during a school ceremony. Overruled, but could have easily been upheld. No matter if his opinion was 1 page or 100, it was abhorrent to the Constitution and to the people.

That Congress should be prevented from requiring this judge to testify and explain himself before the people’s representatives is an abandonment of the principle of checks & balances, and would itself be an acknowledgment of the superiority of the judicial branch. This is a winning, constitutionally sound, and conservative position. I hope Newt runs with it. Tactically, fighting lefty “activist” judges is a winner of an issue.

Check out the Face the Nation interview today; it’s on TheRightScoop.

spiritof61 on December 18, 2011 at 5:49 PM

California went the constitutional route regarding gay marriage. An activist judge said this was not allowed. The court did not respect the process.

Rose on December 18, 2011 at 5:45 PM

Try this on for size, Rose:

“The United States went the constitutional route regarding campaign finance reform. An activist court said this was not allowed. The court did not respect the process.”

Or…

“The United States went the constitutional route regarding gun control. An activist court said this was not allowed. The court did not respect the process.”

theodore on December 18, 2011 at 5:50 PM

If every problem not needed a government solution, you would not need a court to solve the new problem that government made in the quest solve the first problem.

If government got out of the marriage business you would not need a court to over turn some law to solve it. If government got out of the abortion business the court world not have to make the law to solve it.

Have the people and area where you live determine if an abortion is permitted if not, move not run to some bigger government to solve it. If people will not let you eat because you are who you are move to where you can set up your own lunch counter and then eat there not run to government to fix all wrongs in the world.

tjexcite on December 18, 2011 at 5:50 PM

I don’t think it would fly to have judges being called before that gallery of buffoons to be heckled over their decisions. Obama called out the Supreme Court in a SOTU speech and we all went wild on him, rightfully so.
echosyst on December 18, 2011 at 5:43 PM

As stupid as it indeed would be for Republicans to conduct such judicial inquisitions, it would be even more stupid to make a gift of that power to Democrats. They would be ruthless in their persecution of non-liberal judges. We’ve certainly seen what they do to non-liberal politicians and candidates.

whatcat on December 18, 2011 at 5:50 PM

In that case, the process was never on the rails to begin with. The American judicial system inherited the concept of common law directly from England. It’s been there right from the start.

theodore on December 18, 2011 at 5:48 PM

Common law deals with civil issues not legislating from the bench, such as the Prop. 8 ruling in CA, there is a difference.

Rio Linda Refugee on December 18, 2011 at 5:52 PM

We have to get past this notion that judges are untouchable no matter how poorly they do their job. Are they to answer to no one….?

I would love nothing more than to see two Federal Marshals show up in a court room and tell a judge he is under arrest.
I would like it even more to see two State Troopers do it when some Federal judge interferes in a lawfully enacted state law.
They took an oath and when they break it there should be consequences.

NeoKong on December 18, 2011 at 5:52 PM

. The Michigan Supreme Court had found sobriety roadblocks to be a violation of the Fourth Amendment. However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. While acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued the state interest in reducing drunk driving outweighed this minor infringement.

11 states have blocked this ”MINOR INFRINGEMENT,” thanks to their own state constitutions.

svs22422 on December 18, 2011 at 5:53 PM

Have the people and area where you live determine if an abortion is permitted if not

tjexcite on December 18, 2011 at 5:50 PM

We can’t, because the Supreme Court told us we can’t, that’s part of the problem.

29Victor on December 18, 2011 at 5:53 PM

Tactically, fighting lefty “activist” judges is a winner of an issue.

One man’s activist is another man’s Originalist. You are forgetting the precedent that would be set by this. Someday we will have Democrat president and Congress again as much as we hate that idea.

When they start calling in Thomas, Scalia and Roberts to answer for Citizens United will you still be saying this was a “winning position”? It might be pleasing in the short term, but a monstrosity in the long term.

echosyst on December 18, 2011 at 5:54 PM

The president is one of those elected representatives.

29Victor on December 18, 2011 at 5:42 PM

You fail Civics 101.

Dante on December 18, 2011 at 5:54 PM

That Newt character sure is zany!!

galtani on December 18, 2011 at 5:55 PM

Theodore

What is your point? If the people of the United States ammend the constitution in these areas, the court does not have the right to tell the people they are wrong.

Rose on December 18, 2011 at 5:56 PM

Newt has a tiger by the tail. Turn it loose or put it in a cage?

they lie on December 18, 2011 at 5:56 PM

The SC dictated that they are the final arbiter. Who gave them this right? So now Newt brings this to our attention, but he’s nuts. I’m not a newt fan, I would prefer either Perry or Bachmann, but why call him out on this when we all know he’s right.

jainphx on December 18, 2011 at 5:56 PM

“The United States went the constitutional route regarding campaign finance reform. An activist court said this was not allowed. The court did not respect the process.”

Or…

“The United States went the constitutional route regarding gun control. An activist court said this was not allowed. The court did not respect the process.”

theodore on December 18, 2011 at 5:50 PM

Actually they did. These cases were challenged by citizens who thought that Congress had overstepped their bounds and the SCOTUS ruled in their favor.

Rio Linda Refugee on December 18, 2011 at 5:58 PM

What do you think of the president’s veto power?

Dante on December 18, 2011 at 5:39 PM

Apples and oranges. Congress can overrule a president’s veto. How do you overrule a courts decision especially when that decision is an egregious affront to the law?

chemman on December 18, 2011 at 5:59 PM

But before submitting themselves to the EU nonsense, British courts stuck almost exclusively to matters between private parties and were impotent with respect to Parliament. The courts interpreted the laws produced by parliament and ruled accordingly. If unsatisfied, parliament could simply pass a law instructing all courts to ignore an opinion. While we don’t want this here, there should be a congressional veto on the court, requiring 2/3, so that ridiculous rulings might we overturned. This would correct a major flaw in the constitution-the lack of a check on judicial power.

andy85719 on December 18, 2011 at 5:59 PM

The president is one of those elected representatives.

29Victor on December 18, 2011 at 5:42 PM

You fail Civics 101.

Dante on December 18, 2011 at 5:54 PM

I never said that he was a “Representaive,” I said said that he was a representative, as in he represents the will of the people. That’s how we make laws in this country. The people who represent the people make them, not the courts.

29Victor on December 18, 2011 at 6:00 PM

What do you think of the president’s veto power?

Dante on December 18, 2011 at 5:39 PM

The Senate has the power to over ride a veto by the Prez.

The bottom line is that we have Judges that are exerting their unearned powers and have legislated from the Bench. A no-no.

Key West Reader on December 18, 2011 at 6:00 PM

when has a judge been arrested for ignoring a subpeona from congress requiring him to give testimony on why he/she ruled a certain way?

chasdal on December 18, 2011 at 5:43 PM

Not a judge, but a judge is like any civilian. And civilians have been arrested before for not obeying a lawful subpoena. There’s nothing about being a judge that makes one exempt from the congressional subpoena.

Stoic Patriot on December 18, 2011 at 6:00 PM

Theodore

What is your point? If the people of the United States ammend the constitution in these areas, the court does not have the right to tell the people they are wrong.

Rose on December 18, 2011 at 5:56 PM

Which constitutional amendments overruled Congress on campaign finance reform and incorporated the Second Amendment? Point them out to me, please.

theodore on December 18, 2011 at 6:01 PM

Apples and oranges. Congress can overrule a president’s veto. How do you overrule a courts decision especially when that decision is an egregious affront to the law?

chemman on December 18, 2011 at 5:59 PM

There is nothing apples or oranges about it.

Dante on December 18, 2011 at 6:01 PM

The arrogance & condescention of ignorant people on the Internet never ceases to amaze me.

And yes, I see the irony.

29Victor on December 18, 2011 at 6:01 PM

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