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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Specifically, in Lincoln’s case, there is the Emancipation Proclamation, effectively nullifying Dred Scott,

To the best of my knowledge the Emancipation Proclamation was never challenged in court. While I suppose one could make an argument that it “nullified” Dred Scott, it only did so in areas of the South not under Federal control. Those areas under Federal control as well as the slave-holding border States were unaffected. As CiC Lincoln’s actions were arguably very constitutional as slaves were considered property under the law. Captured enemy property can be disposed of as the CiC and/or Congress directs.

and Ex parte Merryman, where Lincoln continued to suspend habeus corpus, a decision by Chief Justice Roger Taney, sitting as a federal circuit court judge.

A blatantly unconstitutional act on Lincoln’s part, though he generally gets a free pass due to the dire circumstances of the time. It was also rendered moot when Lincoln freed those arrested under this decision about a year later, followed later by action by Congress to suspend habeas corpus.

JohnAGJ on December 19, 2011 at 1:00 PM

Honestly, I think you would mind if a Democratic Congress started to haul conservative justices before all kinds of committees.

Gelsomina on December 18, 2011 at 10:44 PM

So let me get this straight. I have known myself all of my life. I possess the remarkable ability to read my own mind (you could say I’m self-psychic). Outside of reading some comments online, you haven’t known me a day of my life. And on this basis, you honestly think you are in a better position to make a determination as to my state of mind than I am? That strikes me as both delusional and arrogant.

Stoic Patriot on December 18, 2011 at 11:19 PM

As Andrew C. McCarthy says, judges always explain their reasoning. I think that forcing them to explain it again in front of a committee is just a way to make them feel uncomfortable. That’s what Obama did in his speech, he wanted to humiliate them.

Even if Obama had been right on the substance of Citizens United v FEC I would have been upset, because he overstepped a line. It’s an abuse of power.

I don’t want the conservative side to do the same.

Gelsomina on December 19, 2011 at 1:53 PM

A president’s Veto can be overwritten by a 2/3rds majority in Congress. Congress can be Vetoed by the president without a majority.

I’m not 100% sure, but I believe Newt’s main idea is to enable congress to veto a judicial order by a 2/3rds or 3/5ths majority vote in Congress.

That is a very good idea, and not covered in this article, unless I breezed past it.

We just need to connect judiciary decisions to the people in some way, Maybe give both Congress with 3/5 and Presidential Veto combined in order to override a ruling from the Supreme Court?

The details would have to be worked out, so that you balance power again.. All we need is a constitutional amendment to make this happen.

constitutionalist_Va on December 19, 2011 at 3:31 PM

Count me among those more positive about Newt’s statements:
http://wannabeanglican.blogspot.com/2011/12/about-newts-war-on-courts.html

In short, the three branches of federal government are to check and balance each other. But Presidents and Congresses have dropped the ball on checking the Judiciary. So I am heartened to hear Newt’s willingness to put rogue judges in their place.

WannabeAnglican on December 19, 2011 at 10:40 AM

Yes! I agree!

Amjean on December 19, 2011 at 3:38 PM

The details would have to be worked out, so that you balance power again.. All we need is a constitutional amendment to make this happen.

constitutionalist_Va on December 19, 2011 at 3:31 PM

So long as the ultimate power rests with the citizens of this country, I’m good with this.

Judges who legislate from the bench deserve nothing less than impeachment and removal.

Roy Rogers on December 19, 2011 at 4:37 PM

To Horace:

I mentioned my legal education because it seems that Jazz Shaw’s comment and many posters here have been operating under the inaccorect notion that Newt was making some far out arguments, when in fact Newt shows an understanding of the current problem of an imperial federal judiciary. Judicial supremacy is not what the Founders intended and is not what Lincoln believed. I was trying, perhaps inartfully, to get Jazz Shaw and the posters here to understand that Newt is perceptively dealing with what is a real problem.

Phil Byler on December 19, 2011 at 7:26 PM

I mentioned my legal education because it seems that Jazz Shaw’s comment and many posters here have been operating under the inaccorect notion that Newt was making some far out arguments, when in fact Newt shows an understanding of the current problem of an imperial federal judiciary. Judicial supremacy is not what the Founders intended and is not what Lincoln believed. I was trying, perhaps inartfully, to get Jazz Shaw and the posters here to understand that Newt is perceptively dealing with what is a real problem.

Exactly. We have been dealing with judges legislating from the bench for too long now. The power to legislate is exclusively vested in Congress per Article I of the Constitution. When Newt suggested eliminating the 9th Circuit he wasn’t exactly off the mark as to the power Congress has over the judiciary. The only court actually enumerated in the Constitution’s Articles is the Supreme Court. As to the circuit and district courts, the Article says that “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. ” That implies that what Congress giveth (judicially speaking) Congress can taketh away. I don’t see anyone addressing this in their comments about the constitutionality of Newt’s suggestion about the 9th Circuit.

Apologies if anyone has covered this earlier, but I don’t have the time to read through all the pages.

totherightofthem on December 20, 2011 at 8:35 AM

A president’s Veto can be overwritten by a 2/3rds majority in Congress. Congress can be Vetoed by the president without a majority.

I’m not 100% sure, but I believe Newt’s main idea is to enable congress to veto a judicial order by a 2/3rds or 3/5ths majority vote in Congress.

That is a very good idea, and not covered in this article, unless I breezed past it.

constitutionalist_Va on December 19, 2011 at 3:31 PM

Are you kidding me? It’s called a constitutional amendment.

haner on December 20, 2011 at 9:03 AM

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