Newt Gingrich has proposed many solutions to the ever growing power of our courts. Power that has surpassed the other two branches of government:
Kelly: You have proposed a plan to subpoena judges to testify before Congress about controversial decisions that they make. In certain cases, you advocate impeaching judges or abolishing courts altogether. Two conservative former attorneys general have criticized your plan, saying it alters the checks and balances of the three branches of government. And they used words like “dangerous,” “outrageous,” and “totally irresponsible.” Are they wrong?
Gingrich: Well, the first half is right. It alters the balance, because the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.
There’s an entire paper at newt.org — I’ve been working on this project since 2002, when the Ninth Circuit Court said that “one nation under God” is unconstitutional in the Pledge of Allegiance. And I decided, if you had judges who were so radically anti-American that they thought “one nation under God” was wrong, they shouldn’t be on the court. Now, we have…
I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.
We have a balance of three branches. We do not have a judicial dictatorship in this country. And that’s what the Federalist papers promised us. And I would — just like Jefferson, Jackson, Lincoln and FDR — I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing.
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.
Gingrich: Jefferson himself was asked, is the Supreme Court supreme? And he said, that is absurd. That would be an oligarchy. Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country. That would be the end of our freedom. So I would suggest to you, actually as a historian, I may understand this better than lawyers. And as lawyers those two attorneys general are behaving exactly like law schools, which have overly empowered lawyers to think that they can dictate to the rest of us.
The right and the left are upset with his proposals but something must be done. Impeachment and the abolishing of courts is one way. Many are saying that the abolishment of courts is unconstitutional but if it’s a court Congress created, why can’t they abolish it?
Here is the white paper Newt was speaking about in PDF format. It’s an interesting read.
Matthew Franck argues that the abolishing of a court, and its federal judgeships, may be legal but Newt apparently wants to abolish a court and then create a new one which wouldn’t be:
Now is this a precedent, as Newt Gingrich says, for the kinds of things he’s been talking about? Gingrich has at various times said that the Ninth Circuit could be abolished entirely, in order to get rid of its notoriously activist judges (though some good judges would be swept out to sea as well). Presumably Gingrich does not propose to leave the western states, now covered by the Ninth Circuit, entirely without any federal appellate court between the districts and the Supreme Court. Would he then abolish the Ninth Circuit one day, and recreate it the next with new vacancies for President Gingrich to fill? Would he instead break up the very large circuit into two or three new ones (an idea with some merit taken by itself)? In either case, Gingrich would not be following the precedent he claims to find in the 1802 legislation. If Congress abolished the Ninth Circuit, and either recreated it “as is” or created multiple new circuits—in either case with substantially the same geographic coverage, the same legal jurisdiction, and the same position in our three-tiered federal judiciary—then we would be witnessing an unconstitutional end run around the permanent tenure of federal judges. The “abolition” would be wholly pretextual, undertaken simply in order to bring about a new set of judicial vacancies.
Let me be clear about what happened in 1802. Some people then and now regard the Repeal Act and the Judiciary Act of 1802 as unconstitutional, inasmuch as fifteen judges (one seat was vacant), in losing their courts, also lost their putatively permanent situations and their compensation. If you think this, then Stuart v. Laird was wrong, and so is Gingrich’s proposal today. But one may reasonably argue that a court Congress can create, it can abolish. The motives of the actors in 1801 and 1802 were partisan (on both sides), but that is not the issue. One Congress, believing for whatever reason that an earlier Congress acted improvidently, can repeal what that earlier Congress did. That principle should even cover the creation of courts with life-tenured judges. So a good case can be made that Stuart v. Laird is correct.
But Gingrich’s proposal doesn’t match its supposed precedent. He doesn’t simply want to restore astatus quo ante (for motives pure or partisan) by abolishing a court we don’t need. He apparently wants to abolish it and then recreate it in some fashion, with new vacancies. That’s cheating on the Constitution’s rules for the removal of judges one doesn’t like.
How about ignoring rulings from the court? The MSM is trying to make much hay out of this but from the white paper we get this:
In very rare circumstances, the executive branch might choose to ignore a Court decision. One can imagine such a circumstance when Courts attempt to usurp the foreign policy powers of the executive and legislative branches and such usurpation compromises the national security of the United States and threatens the safety of Americans.
For example, if the Congress were to enact a statute on military commissions that explicitly limited federal court jurisdiction, then the President would be warranted in ignoring any judicial decision or action that violated the limitation on jurisdiction. It is proper to do so because the Congress that enacted the law presumptively believed it was constitutional. The President who signed it (assuming no veto) thought it was constitutional and the President who ignores the court decision thought it was constitutional. Thus, it is two branches against one, in an area where the Constitution empowers the executive and legislative branches (not the judicial branch), and in a case in which the judicial branch is violating constitutional limitations on its authority.
Gingrich complains, rightly so, that even in cases where the court is specifically excluded by our constitution, they still step in and try to push their power around:
In addition, in Boumediene, the Supreme Court ignored the constitutional limits placed by Congress on its jurisdiction over aliens held by the United States as enemy combatants at Guantanamo Bay, holding such limits invalid and effectively declaring that the Court would be the final arbiter (not Congress) of federal court jurisdiction.
This type of thinking needs to be explored even more in my opinion. Impeaching judges who grossly exceed their authority for obvious partisan reasons is THE right thing to do.
As far as a President ignoring a judge’s order….didn’t Obama just do that with the gulf drilling moratorium?
So is it that crazy for Newt to say he will do just as Obama does?