19 Dec

Newt Gingrich Tackles The Court System

                                       

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.

(APPLAUSE)

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…

(APPLAUSE)

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.

(APPLAUSE)

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.

(LAUGHTER)

(APPLAUSE)

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 fashionwith 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?

About Curt

Curt served in the Marine Corps for four years and has been a law enforcement officer in Los Angeles for the last 20 years.
This entry was posted in Constitution, Law, Newt Gingrich, Politics, Supreme Court. Bookmark the permalink. Monday, December 19th, 2011 at 5:00 am
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21 Responses to Newt Gingrich Tackles The Court System

  1. DrJohn says: 1

    “What kind of judge says you’ll go to jail if the word ‘invocation’ is used? If this isn’t a speech dictatorship, I’d like you to show me what one looks like.”

    This is hard to argue with.

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  2. Gary Kukis says: 2

    This is one of the most serious problems of our generation. The courts should not be setting policy, laws, or defining new classifications of people.

    The key is, how do you reform the court system so that it retains some power, but not absolute power?

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  3. bbartlog says: 3

    Bold. Zany, even :-P. As far as politics though this is a horrible misread on Newt’s part. This plan will play a lot better in SC than in Iowa or NH, i.e. he should have pushed this policy later, not now. He’s certainly living up to his rep as an idea guy, though!

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  4. Hard Right says: 4

    Double edged sword. Sure we could use it to get rid of liberal activsist judges. However, the liberals could use it to get rid of insufficiently liberal judges.

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  5. Kevin says: 5

    “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”

    The only problem with so-called “activist judges” is that they are following American principles through to their natural conclusions. All American citizens have the right to express any idea they have (and use any property they own to do so). A quick look around shows American Christians paint Jesus over just about every piece of private property they can get ahold of and nobody tries to stop them (THAT would be un-American). Public property, entrusted to the government by the people and owned by no citizen, should be used to advance the purpose for which it was entrusted. If it is to be used for expression of ideas, it should do so only when access to the platform is granted to all citizens.. This is why Barack Obama can’t use taxpayer dollars to fund his re-election campaign (unless said funds are equally accessible to all candidates).

    These are GOOD priniciples, but when objectively followed to their natural conclusions (as judges are charged to do), they do tend to prevent those of the priviledged majority from enjoying platforms innaccessible to others. And that’s the rub. Conservative voters (and the politicians who serve them) simply can’t swallow the bitter pill that using the public property entrusted to our government to spread their religious viewpoints is in violation of these prinicples. Atheists don’t get have “God is imaginary” printed on any of our monetary denominations. Muslim public school teachers cannot lead their students to pledge allegiance to “one nation under Allah”, nor can their Wiccan colleagues teach of how god El and goddess Elat breathed life into the dark universe. And that’s the way it should be.

    For every American.

    Or, if that logic doesn’t cut it – just imagine handing the power that Newt is talking about using over to Barack.

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  6. Greg says: 6

    There are no conservative activist judges?

    It all depends on your perspective. A lot of people who aren’t way over on the left consider the proposition that corporations are persons with all of the constitutionally guaranteed rights of a person an extreme position, and a glaring example of judicial activism.

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  7. MataHarley says: 7

    @Kevin: Or, if that logic doesn’t cut it – just imagine handing the power that Newt is talking about using over to Barack.

    The power doesn’t lie in the Executive branch, but the Legislative branch. As part of their separation of powers authority is oversight of the judiciary, which includes:

    Senate approval of federal judges
    Impeachment power (House)
    Trial of impeachments (Senate)
    Power to initiate constitutional amendments
    Power to set courts inferior to the Supreme Court
    Power to set jurisdiction of courts
    Power to alter the size of the Supreme Court

    The Executive checks/balances over judiciary is only appointments, and pardons.

    If you read Newt’s Court PDF document linked in Curt’s post, he is not suggesting the POTUS seize power that isn’t that branch’s to seize, but that Congress exercise it’s Constitutional authority to set guidelines for what is tantamount to an impeachable action from the bench. I happen to agree they need far more oversight.

    And if any judge refuses to appear after being subpoenaed, he needs to have his butt hauled in by law enforcement, just as any other citizen would have if they did the same.

    Which brings me to @Greg:

    There are no conservative activist judges?

    Greg, why must you always bring a partisan bent to an issue that really is bipartisan in it’s effect for all citizens? Newt’s white paper is titled “Bringing the Courts Back Under the Constitution”… not “Bringing the Courts under Conservative Control”.

    If you have any doubt that the Ninth, the DC Circuit and the Federal Circuits are out of control, you need only have a look at both their reversal statistics, as well as how many cases theY (especially the Ninth) terminates that doesn’t even make it thru the judicial chain. Hang… let’s not limit it to those with reversal rates at 80-83% over the decade from 1999-20008. The *best* reversal statistic in that time was the 7th Circuit, with over 55% of it’s cases reversed.

    As far as cases terminated, in that ten year period, the Federal Circuit terminated a total of 15,781 cases and the Ninth Circuit terminated 114,199 cases.

    Perhaps this is where many need to be reminded that lower courts tend to impose their will, and hope that the litigant either doesn’t have the financial resources, or the will power to take it to a higher court. If you don’t believe this, then try fighting your traffic infractions, first by getting the stand in attorney to recuse themselves and drag it into a real court with a real judge. You can do it, but they will not only fight you along the way… hoping you give up… but they’ll give you severe abuse when standing before the bench.

    Statistics cited above? From the American Bar Association, published in their Landslide publication Jan/Feb of 2010.

    The high amount of terminated cases and high reversal rates are strong indication that something’s seriously wrong at the OK Corral in the lower courts.

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  8. Kevin says: 8

    Hi Mata,

    Conceded, my last remark was flawed – should’ve asked, “… just imagine handing the power that Newt is talking about to a Democratic majority Congress”.

    I’m curious – could Congress theoretically pass a law “No judge may rule to uphold an anti-abortion law.” and impeach pro-life judges based on that?

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  9. gary kukis says: 9

    Power to initiate constitutional amendments

    But didn’t California voters pass a constitutional amendment to recognize marriage as the union of one man and one woman, and their court still struck it down??

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  10. Donald Bly says: 10

    The more I hear from Newt… the more I like him.

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  11. Liberalmann says: 11

    Amazing to hear the morons applauding for such a loony anti-U.S. Constitution statement which smacks of tyranny.

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  12. MataHarley says: 12

    @Kevin: I’m curious – could Congress theoretically pass a law “No judge may rule to uphold an anti-abortion law.” and impeach pro-life judges based on that?

    I have to say that Newt’s paper on judiciary supremacy is an interesting one. I think, if you read it in it’s entirety and understood the variety of Constitutional authorities that lie with the Executive and Legislative branches to use to act as the checks and balances – unlike some of our lesser educated @commenters know of – it may answer your own question.

    I’m going to lift/paste Newt’s examples of just one avenue of checks/balances oversight, and insert your “no judge may rule to uphold an anti-abortion law” example.

    Setting Limitations on Federal Court Jurisdiction (pg 20 of the PDF)

    …snip…

    For example, Americans can ask that Congress pass a law insisting on the centrality of “our Creator” in defining American rights, the legitimacy of appeals to God “in public places,” and the absolute rejection of judicial supremacy as a violation of the Constitution’s balance of powers “no judge may rule to uphold an anti-abortion law”.

    If the Supreme Court ruled that such a law was unconstitutional, the legislative and executive branches could take corrective action. Congress and the president could pass the law a second time but include a provision that affirms the legislative and executive branches’ constitutional role to define the Court’s jurisdiction. This law could also include a specific provision that barred the lower federal courts from reviewing it.

    If this does not convince the judges to stand down, the legislative and executive branches have additional options. They could explicitly provide by statute that any federal judge that refused to adhere to the legislative limitations on jurisdiction would be subject to impeachment and removal from office. While not necessary, explicit notice to the judicial branch in the form of legislation that ignoring limitations on jurisdiction can lead to their impeachment may temper judicial behavior. It also may provide additional political support for the removal of judges in a future impeachment proceeding on the grounds of a judge ignoring statutory limitations on its jurisdiction.

    Naturally, this only works on the lower courts. For SCOTUS? Measures would have to be taken for Roe v Wade to be reversed. In which case the FDR ploy of packing the courts may be a remedy to allow a shaved down court to do just that.

    Congress’s only tool in the box is not either blind acceptance of “judicial supremacy” or a Constitutional amendment (which is no easy task… especially in these times.) Congress has every right to limit court jurisdiction via the Constitution.

    As I mentioned above, Congress and the POTUS can pass/enact guidelines for impeachment of federal judges.

    The simple Congressional action itself of codifying existing constitutional authority to impeach judges on various grounds, including the issuing of unconstitutional opinions, asserting arbitrary power, and otherwise usurping the authority of the legislature will send an unmistakable signal to all federal judges of a renewed commitment by the legislative and executive branches to defend the Constitution against oppressive and tyrannical judges.

    Note that this requires a traditionally bipartisan Congressional effort. So the likelihood of a more unusual supermajority for one party or the other is reversible by future Congressional sessions. So no… I have no worries about a particular party majority creating permanent damage by exercising their power to oversee the judicial branch. Supermajorities are a pretty rare critter on their own.

    I rather like the idea of Congressional hearings on controversial decisions… but it has it’s inherent problems… that being that there is already majority opinion(s) and dissenting opinion(s) in a decision for Congress (usually a bunch of lawyers themselves) to read, but that the SCOTUS docket may be difficult to hold such hearings except during their summer recess. Hey, that’s okay with me. If they have lifetime appointments, let them give up some of their summer to come and be subjected to questioning on the Hill via hearings for additional clarification. After all, majority and dissenting opinions are not interactive for clarification. So a more complete Q&A session with the robed ones may give Congress the additional insight as to whether they need to be stepping in for interference.

    Then again, this is a bunch that prefer to use their time doing anything but reading proposed legislation, let alone reading SCOTUS opinions.

    Another tool in the Congressional toolbox is the power to create… or eliminate… federal courts. Actually, to use an extreme example, they could eliminate all the federal and circuit courts, and only the High Court must remain. Even at that, Congress has the power to make it a single Chief Justice, if it so chooses. Naturally that’s not likely to fly with any Congress, no matter what the make up. But you see what I mean. That is their Constitutional power.

    If the POTUS has the backing of a willing and cooperative Congress, he can threaten to pack the courts, as FDR did in order to get his New Deal to fly. That humbled their conservative butts into doing his bidding. That’s an example of oversight power used for a purpose I don’t think was to the nation’s benefit. But it is a heckuva example.

    Newt documents other tools that that have been successfully used over time in our history. For example Congress and the POTUS ignoring a SCOTUS decision, as Lincoln did with Dred Scott. Please take note, that requires Congress and the POTUS working in concert, of course. There is also the Congressional power to defund the Courts, which may hinder their ability to carry out any particular opinion with which Congress finds objectionable. Then there is use of the Solicitor General to challenge controversial opinions.

    I think what anyone may come away with… at least if they drop their partisan pointy hats and read it as a citizen who may find that judicial supremacy is unconstitutional in it’s premise… is that Congress and the POTUS have far more tools to question what is a runaway court system. But they have been deliberately ignoring it for most of it’s more modern existence.

    That could be because they are too busy making laws that attempt to legislate the hearts and morality of men and money, get into the auto manufacturing business, own banks and mortgages, and control healthcare instead. Apparently they are so busy infringing into other arenas of the citizens’ lives that they haven’t got time to do their Constitutional duty.

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  13. Greg says: 13

    Gingrich is either himself an extremist, or cynically pitching enticements to extremists to further the cause of Newt Gingrich. Take your pick. I’ll go with the second option.

    Obviously something is seriously wrong with what he’s suggesting about a need for the Legislative and Executive Branches to press the Judicial Branch to do their bidding. This is demonstrated by the fact that whether or not such would be considered acceptable by one side or the other would depend largely on who was doing it, and to what end. If you can’t consistently support an underlying principle whether it’s working for you or against you, there’s something unsound about it to begin with.

    One of the purposes of the Judicial Branch is to unflinchingly oppose the will of Congress and of the President when the occasion demands. The Judicial Branch should be expected to thwart even the will of the majority of the American people on occasion. That’s necessary to prevent the majority from itself becoming a tyrant and stepping on the Constitutionally guaranteed rights of some unpopular minority.

    Someone doesn’t like abortion? Well and good. We all have a fundamental right to choose not to have one.

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  14. Donald Bly says: 14

    Well put Mata… I especially like that “pointy hat” comment… seems there’s one posting right behind you!

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  15. Gary Kukis says: 15

    @Greg:

    Someone doesn’t like abortion? Well and good. We all have a fundamental right to choose not to have one.

    This is like saying, “You are opposed to murder? Well, then just don’t murder anyone.”

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  16. bbartlog says: 16

    @Greg: I think there is a third option, which is that Newt is big on all sorts of ideas (his description of himself as a ‘one man think tank’ is not without foundation). If he were trying to cynically pander to extremists, don’t you think he’d choose some sort of red meat issue instead of this frankly wonkish stuff? Believe me, this kind of proposal may get some press and is interesting as a point of internet political discussion, but this isn’t how you pander, if that’s what you’re trying to do.

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  17. Donald Bly says: 17

    With Gingrich…. you really have to look under the hood… if you only read the headlines… you may be misled as to the extent of the thinking behind some of these “wonkish” issues. I like it that some people are out there willing to do the research to understand the history and detailed legal aspects of issues over which many people have little knowledge or time to research. Some people view the ideas coming from that research as whacked when in actuality the plethora of hodgepodge legislation often creates the possibility of outcomes that are just naturally whacked. It doesn’t change that fact that those outcomes are possible, regardless of who the messenger is.

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  18. Kevin says: 18

    Hey Mata, much to chew on there… wasn’t familiar with FDRs court-packing scheme before now. Anyway, thanks for the information-packed reply… agree or disagree with where Newt is coming from, it’ll be interesting to see where his calls to shake things up take us.

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  19. Greg says: 19

    @Gary Kukis, #15:

    This is like saying, “You are opposed to murder? Well, then just don’t murder anyone.”

    Only when you begin with the postulate that something having the potential to become a human being already is one. The basis of the disagreement is that not everyone believes that to be so. One side thinks that a woman should be free to make her own moral judgement on the point, while the other thinks their own judgement–frequently grounded in their own personal religious views–should be made the standard for everyone.

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  20. MataHarley says: 20

    The FDR packing is quite the story in history. Newt goes into some of it in his white paper, but you can find much about it on the Internet anyway.

    Newt is to the voting base what Cain was… tosses out ideas and really gets the juices rolling on good and bad points via debate. Personally I think we need a radical nominee for bold ideas. Isn’t that how Obama sold himself to the Euro-Socialist lib/prog base? That direction hasn’t proven to be as appealing as he sugar coated it. Having Mr. Mild GOPer, gently walk the line is not what we need. We need someone who will shake up the spending, the entitlement and tax reforms, and slashing the size of this government.

    ~~~

    @Greg: Obviously something is seriously wrong with what he’s suggesting about a need for the Legislative and Executive Branches to press the Judicial Branch to do their bidding. This is demonstrated by the fact that whether or not such would be considered acceptable by one side or the other would depend largely on who was doing it, and to what end.

    …snip…

    One of the purposes of the Judicial Branch is to unflinchingly oppose the will of Congress and of the President when the occasion demands. The Judicial Branch should be expected to thwart even the will of the majority of the American people on occasion.

    I read stuff like this, and I scratch my head as to where such notions come from. Obviously, Greg, you are a supporter of judicial supremacy… ergo you do not support the concept of checks and balances in the separation of powers.

    The only other option is you are absolutely clueless to the authorities and duties of each branch to check/balance each other.

    But let me’ take your comments in piece.

    …he’s suggesting about a need for the Legislative and Executive Branches to press the Judicial Branch to do their bidding….

    Odd way to look at checks and balances, Greg. First, that it requires bipartisan Congressional action limits the idea that either party has much chance of “doing their bidding” unless they are somewhat united in their disagreement of the courts opinion. However it is the Constitutional mandate of both branches to check the Judicial branch, just as it is for any two of the three to keep an eye on the other. To not do so is a derelict of duty… which brings me to this statement:

    One of the purposes of the Judicial Branch is to unflinchingly oppose the will of Congress and of the President when the occasion demands.

    sigh… Civics truly is a lost curriculum, I see.

    The job of the Legislature is to create law
    The job of the Executive branch is to enforce laws made by Congress
    The job of the Judiciary is to interpret the laws Congress made

    What the judiciary does if when Congress screws up (as they do often), and a law is challenged all the way to the SCOTUS, the judiciary deems some or all of a law unConstitutional on the merits of the case arguments. Or sometimes it’s just resolving an argument as to whether enforcement of a particular law was violated by one party or the other. Not all have to do with questioning the Constitutionality of a law. But since we’re focusing on reigning in an out of control judiciary, who is coming up with new ways to remodel the Constitution, let’s stick with just the Constitutional opinions and action.

    SCOTUS (or the lower courts – i.e. the judicial branch) does not remove the law. It does not enforce the law. It merely lets Congress know they screwed it up and are in the wrong.

    Congress may come back and remedy some portions of a law, or they opt to repeal a law. And, as Lincoln did with Dred Scott, Congress and the POTUS may choose to ignore the SCOTUS entirely.

    Your problem is that you believe the Judiciary represents the ultimate “will” of the nation. No, Greg. The “will of the people” is supposed to be expressed in Congress by elected officials. They are supposed to be passing legislation that reflect “the people’s will”… altho that’s pretty much a joke these days. The judicial branch is there only to provide a check on “the people’s will” via Congress that it’s not outside the intent of our Constitutional founding.

    But then, if “the will” of the people is to abolish the Constitution entirely (done via Congress and Constitutional Convention), then that argument goes away and the Judicial branch no longer has that as the yardstick of measure. They cannot impose their interpretation that the Constitution cannot be abolished as “the will” of the masses.

    Me thinks you need to return to some basic education on our Constitution, and basic civics, guy. While you’re at it, can you take libman with you? He appears to be in worse shape than you on basic education.

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  21. MataHarley says: 21

    @bbartlog, if Greg’s idea of an “extremist” is one who wants all branches of government to perform according to Constitutional limitations and duties, then I’ll be quite proud to wear that title.

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