Newt Gingrich Versus Activist Judges


Presidential candidate Newt Gingrich has been making noises about the out-of-control judiciary for a long time, but Sunday he went on CBS News’ Face the Nation to put things in rather stark terms:

Many eyebrows were raised at the notion of separation-of-powers disputes becoming 1970s crime dramas, in which the Capitol Police and U.S. Marshals chase subpoena-dodging judges driving muscle cars.  Some judges might have to jump off waterfalls to escape from dogged U.S. Marshals.

As Gingrich would go on to point out, sending in the Capitol Police is the logical, but largely hypothetical, end game for ignored subpoenas, but “as a general rule, they show up.”  The general notion of slamming activist judges with subpoenas is controversial even if nobody gets tasered, as the Washington Post explains:

Judicial experts, including conservatives, are questioning the constitutionality of Gingrich’s stance. The Constitution specifically grants federal judges life terms with good behavior, many of Gingrich’s critics note, and provides only for impeachment as the way to remove bad judges. To do so by other means, they say, is an encroachment on judicial independence and an affront to the separation of powers doctrine that underlies the entire document.

“Overall, he’s racing towards a cliff,” said Bert Brandenburg, executive director of the nonpartisan Justice at Stake campaign, which advocates for an independent judiciary. “It may be expedient to appeal to specific voters in primaries or caucuses, but it’s a constitutional disaster. Americans want courts that can uphold their rights and not be accountable to politicians. When you get to the point where you’re talking about impeaching judges over decisions or abolishing courts or calling them before Congress, it’s getting very far away from the American political mainstream.”

This is not a new position for Gingrich, who has been using Judge Fred Biery’s ruling against a high school valedictorian including prayer in a graduation speech as the blue-plate-special example of judicial activism for quite a while.  The American Spectator discussed his mention of Biery to the Republican Leadership Conference back in July:

“If you read his ruling, it is so outrageously dictatorial and anti-religious that he [Biery] clearly does not understand America,” Gingrich said. “We don’t need judges who don’t understand America…We need to reset the judiciary, explain to them the limits of the American Constitution and prove to them that judges appointed for life cannot be dictators and they cannot threaten our children with jail for saying the word ‘prayer.'”

Gingrich’s answer to Judge Biery is the Judicial Reform Act of 1802, which eliminated 18 out of 35 federal judgeships. If Republicans pick up enough seats in the House and Senate next year, it will be possible to introduce legislation modeled on what Jefferson and Madison offered up in response to judicial overreach.

“As a modest first step toward reining in the anti-religious bigotry on the bench, Judge Biery’s office should be abolished by Congress,” Gingrich said. “The American people would be better off without a judge whose anti-religious extremism compels him to ban a high school valedictorian for just saying the word ‘prayer.'”

Gingrich would also eliminate the Ninth U.S. Circuit Court of Appeals based in California, which has a long history of activist rulings. The court, for example, ruled in 2002 that the “under God” phrase in the Pledge of Allegiance was unconstitutional. The U.S. Supreme Court later reversed the decision.

As the Spectator notes, Gingrich wrote extensively about judicial overreach in his most recent book, A Nation Like No Other: Why American Exceptionalism Matters.  It’s not something he whipped up after his poll numbers improved, and he found himself needing a hunk of red meat to throw in front of social conservatives in the early primary states, as some news reports have implied.  Right or wrong, the idea has been on his mind for a long time. 

As to the substance of Gingrich’s argument, he’ll doubtless find a receptive audience among those who believe government has grown increasingly remote and dictatorial, fueled by an increasing reliance upon the judiciary to impose “solutions” they never would have voted for upon Americans.  The notion of dragging judges before Congress to explain themselves presents troublesome Constitutional questions… but short of impeaching them, how else does the legislature regain its prerogatives from judges who love to legislate from the bench? 

Congress can pass all the laws it wants, but they don’t mean much if judges wantonly strike them down or revise them.  It does seem as if the balance of power has shifted to the judiciary in many areas, and they’re an even more remote and unaccountable force than Congress, which is not the most responsive political organ in the world.  There’s little point in talking of restoring power from the federal government to the states when activist federal judges can still override decisions reached by the people.

On the other hand, the Constitution is fairly clear about the lifetime appointment of federal judges, unless they’re impeached for misbehavior – which is not intended to include Congressional disapproval of their rulings.  It’s not hard to imagine that getting out of hand.  Issuing subpoenas to compel judges to explain themselves, presumably to embarrass them and begin a process that could lead to impeachment, would result in a Congress that spends even more time on pointless showboating than it already does. 

Or maybe that’s a feature, not a bug.  We could combine Gingrich’s subpoena ideas with Rick Perry’s notion of a part-time Congress.  They’d spend all of their limited time grilling uppity federal judges, therefore inflicting less damage through goofball legislation.

Some observers are puzzled and dismayed that Gingrich would allow himself to be dragged into this sideshow discussion on Face the Nation when Republican candidates should be focused on the economy and Obama’s dismal performance.  It should be noted that, according to the New York Times, host Bob Scheiffer “told his audience that Gingrich aides had urged the host to ask about the judiciary, indicating that the topic is something Mr. Gingrich believes will help him in his campaign, especially with conservatives and evangelicals.”

The frustration of cultural conservatives with the distortion of our social fabric caused by imperious Washington is easily concentrated into the concept of judicial overreach, especially the Judge Biery example Gingrich is so fond of.  Since a President Gingrich might not actually be expected to trample Article III of the Constitution and do anything to follow up on his tough campaign talk, this could be a combination of pandering and the academic spitballing Gingrich loves to indulge in. 

He might also be throwing this idea on the table because he wants his adversaries to make themselves look bad by attacking it.  For instance, Reuters begins its story on Gingrich’s Face the Nation appearance by declaring, “Republican presidential hopeful Newt Gingrich threatened on Sunday to have U.S. judges arrested if they disagreed with his policies as president, ratcheting up his attacks on the judiciary as he tries to halt a slide in his campaign.”  That is not what he said.  The notion of issuing subpoenas to activist judges may be wrong-headed, but it’s not equivalent to arresting judges for disagreeing with the President.  Gingrich loves to thump the media for blatantly misrepresenting him, and his controversial talk-show appearance will give him plenty of material to work with.

Likewise, lawyer Gerald Shargel, writing at the Daily Beast, caricatured Gingrich’s mention of the subpoena concept during the most recent GOP debate as follows, after asking the reader to imagine “a highly qualified and exceptionally well-regarded Manhattan federal trial judge” making a controversial ruling:

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 showboaters 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’s ratings.

Maybe Gingrich miscalculated by putting such emphasis on crusading against activist judges… or maybe he’s the only candidate in the GOP field who remembers just how much Americans dislike sneering elitist lawyers, and the hyper-litigious world they have constructed, in which the carefully managed populace dares not dream of A-list crème de la crème jurists facing challenges to their impeccable wisdom from lowly elected representatives.

The struggle to balance power between the branches of government will be never-ending.  There will never come a day that everyone in America thinks we’ve got the mixture exactly right.  It’s an ongoing conversation, not a battle to be decisively won or lost, in this generation or the next.  One thing is certain: an awful lot of control over our lives has been ceded to people who are never held accountable for their errors, and can never lose their jobs.  Newt Gingrich may not have chosen the best approach to tap into that resentment, but there is no denying its potency.