Monday, December 19, 2011

A truly zany idea

The rap on Newt Gingrich is that he has dozens of ideas, but only a few of them are good. A truly rotten idea is his push to limit activist judges with what are, frankly (as Newt would say), extra-constitutional means. On CBS's Face the Nation, he put forth his zany idea of how to rein in activist judges.
SCHIEFFER: Let me just ask you this and we’ll talk about enforcing it, because one of the things you say is that if you don’t like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that’s unconstitutional. But I’ll let that go for a minute.

I just want to ask you from a practical standpoint, how would you enforce that? Would you send the capital police down to arrest him?

GINGRICH: If you had to.

SCHIEFFER: You would?

GINGRICH: Or you instruct the Justice Department to send the U.S. Marshal. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word “benediction” and “invocation”? Because before you could — because I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it.
It is a very dangerous idea to say that judges whose rulings politicians don't like should be called before Congress to explain their positions. That is what the written opinions are for. Gingrich likes to cite the Federalist Papers that the Judiciary was designed to be the "weakest branch." That is true, but it was not designed to be subordinate to the legislative branch in this way. This would put the judges under the sway of whichever party controls Congress and would endanger the courts' independence. Do conservatives want to see conservative judges hauled before Congress when Democrats control one of the branches of government? Gingrich's proposal has provoked criticism on both sides of the ideological spectrum.
Michael W. McConnell, director of the Constitutional Law Center at Stanford University and a former federal appeals judge appointed by Bush, also observed that conservative audiences “should not be cheering” and “are misled” if they believe Gingrich’s proposal is in their interest at a time when Republicans are looking to the Supreme Court to declare President Obama’s health-care law unconstitutional.

“You would think that this would be a time when they would be defending the independence of the judiciary, not attacking it,” he said. “You can’t have it both ways. It can’t be that when conservative Republicans object to the courts, they have the right to replace judges, and when liberal Democrats disapprove of the courts, they don’t. And the constitution is pretty clear that neither side can eliminate judges because they disagree with their decisions.”
Gingrich has also said that he'd take on the courts just as other presidents did.
“Just like Jefferson, Jackson, Lincoln and FDR, I would be prepared to take on the judiciary,” Gingrich said.

Citing Lincoln’s criticism of the Dred Scott decision, Gingrich said he had no time for legal experts – including former U.S. attorneys general – who argue his plan would undermine the separation of powers.

“I would suggest to you, actually, as a historian I may understand this better than lawyers,” Gingrich said, adding that law schools have “over-empowered lawyers to think that they can dictate to the rest of us.”
No modesty there. In fact his arrogance is reminiscent of Barack Obama.

Gingrich likes to cite Jefferson as one who opposed the power of the courts. Jefferson's views of constitutional powers are not ones that we should be emulating today. In protest of the Alien and Sedition Acts, Jefferson authored the 1799 Kentucky Resolution that asserted the power of the state governments to nullify federal laws that they thought were in violation of the constitution.
That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy
Can you imagine the chaos that would have erupted if states had that power? This was not a man whose interpretations of the Constitution are necessarily the ones we should be citing in 2011. Gingrich likes to use Jefferson's abolishing of federal courts that had been created by the Federalists before John Adams left power as an example of what he'd do.
Kelly: These are conservative former attorneys generals who have criticized the plan, as I say, dangerous, ridiculous, outrageous, totally irresponsible.

Gingrich: Sure. I’d ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? Eighteen out of 35 were abolished.

Kelly: Something that was highly criticized.

Gingrich: Not by anybody in power in 1802.
Well, there is a reason for no one in power in 1802 criticizing Jefferson - that is because Jefferson's Republicans had won control of the presidency and both houses of Congress in 1800. Of course, they weren't criticizing his abolishing judicial positions that had been filled by Federalists. But following such a precedent would mean each party that had power abolishing the judges that the previous presidency had appointed if the new president had power in Congress to do so. Think of what Obama and the Democrats could have done when they came into power in 2009. Following Gingrich's logic, they could have done away with Alito's position on the Court or other judges that Bush had put on the courts.

Even Ron Paul knew enough
to question Gingrich's position here.
Paul: Well the Congress can get rid of these courts. If — if a judge misbehaves and is unethical and gets into trouble, the proper procedure is impeachment. But to subpoena judges before the Congress, I’d really question that. And if you get too careless about abolishing courts, that could open up a can of worms. Because it — you — there — there could be retaliation. So it should be a more serious — yes we get very frustrated with this. But the whole thing is, if you just say, well we’re going to — OK there are 10 courts, lets get rid of three this year because they ruled a — a way we didn’t like.

That — that to me is, I think opening up a can of worms for us and it would lead to trouble. But I really, really question this idea that the — the Congress could subpoena judges and bring them before us. That’s a real affront to the separation of the powers.
Jefferson's actions against the courts and against Chief Justice John Marshall in particular were some of the more questionable moves he made as president and in his post-presidential career. He maneuvered behind-the-scenes to manipulate opinion and actions against Marshall. In response to the 1819 decision in McCulloch v. Maryland, Jefferson fulminated against the decision and the assertion of power by the Supreme Court and allowed to be published a letter that he'd written concerning a book that a Mr. Jarvis had written. Jefferson wanted to assert his opinion that the Supreme Court should not have the ultimate authority to make decisions on the Constitution.
You seem, in pages 84 and 148, to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ampliare jurisdictionem,” and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.
While Jefferson proposed submitting constitutional questions to a vote of the people instead of judges, James Madison, who also opposed the McCulloch decision, argued that the only solution for those who disagreed with John Marshall's opinions was to amend the Constitution.
It is a further boast that a regular mode of making proper alterations has been providently inserted in the Constitution itself. It is anxiously to be wished therefore, that no innovations may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted.
And should Andrew Jackson's opposition to the Marshall court be one that a presidential candidate emulate today? Jackson's most famous dispute was with Marshall's finding in Worcester v. Georgia that a state could not supersede federal treaties made with the Cherokee guaranteeing their right to own land in Georgia. Georgia ignored the Court's decision and Jackson refused to do anything to enforce that ruling supposedly saying "John Marshall has made his decision; now let him enforce it." While historians doubt that Jackson may have actually said that, there is no doubt that he did nothing to support the Court's ruling. Contrast his inaction with Eisenhower's enforcement of the Court's ruling on desegregating schools when he sent federal troops into Little Rock.

And Gingrich looks to FDR's battle with the Court as a model. Remember that battle when FDR tried to pack the Court by adding six more justices? Even his Democratic supporters in the Congress failed to back him on that one.

Two of Bush's attorneys general recommend throwing out the more outlandish of Gingrich's ideas, while keeping his focus on judicial appointments as an election issue.
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....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."

Mukasey has counseled Mitt Romney, Gingrich's chief rival for the Republican presidential nomination, but said only once, and he would do the same for any GOP candidate. He and Gonzales said they were also not happy with the Gingrich call for the power to impeach judges or abolish judgeships following any ruling considered particularly outrageous.

They were additionally very skeptical of Gingrich's suggestion that we should just "do away with" the Ninth Circuit because of some of the left-leaning decisions from that group of jurists.

"The fact is the Constitution empowers the Supreme Court to establish lower federal courts. Presumably it can undo lower federal courts. But to say that you are going to undo an entire court -- simply because you don't like some of their decisions -- when there are thousands of cases before that court is totally irresponsible," Mukasey said....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."

Both Mukasey and Gonzales applaud Gingrich for calling attention to problems in the judicial system. Both say they support his calls to make judicial appointments more of a focus of political campaigns, a preference for judges who follow the original intent of the Constitution and steering clear of foreign law in interpreting the founders' intent.

"There's a lot in here that's good. Take a red pen to the parts that are bad, stick with the parts that are good and run on it," Mukasey said.

Gingrich might tout his standing has a historian, but he is wading into very murky waters here with the examples that he's holding up. While the Court can be infuriating in some of its decisions that anger conservatives, remember that there are just as many decisions that have liberals fuming. But just as conservatives derided Obama for his public castigation of the Supreme Court in his State of the Union address, we should be wary of some of Newt's more outré ideas and this is certainly one of them. It might play well with conservatives angry over some liberal judicial decisions, but this is a dangerous road to travel down. I'd prefer a more judicious approach than to say we should be hauling judges whose decisions we don't like before Congress or that we should impeach them or that the President should refuse to obey such rulings.

This is a zany proposal and the fact that Gingrich believes he knows better is telling of his temperament and judgment.