Newt Gingrich issued a bold proposal on reining in the federal judiciary that is about 90 percent terrific and 10 percent . . . not so much. In the latter category is the idea of having Congress issue subpoenas to federal judges who hand down constitutionally invalid rulings. The former Speaker and his supporters undermine the tremendous good the overall plan could do by continuing to harp on the wayward notion of coercing judicial testimony.
Typical is the National Legal Foundation’s Stephen W. Fitschen, who has taken to the pages of the Washington Times to defend the subpoena proposal — specifically chastising former Attorney General Michael Mukasey and me for our naysaying. It is hard to tell whether Mr. Fitschen’s basic problem is that he does not know the difference between a fact and an opinion, or that he has not read Newt’s proposal. After noting Judge Mukasey’s reported assertion that Congress may only subpoena judges “to consider legislation,” and my contention that congressional subpoenas to judges would violate “separation-of-powers principles,” Fitschen writes:
Let me try to take this out of the realm of opinion into the realm of fact. First, the only fair reading of Mr. Gingrich’s comments is that he advocates subpoenaing judges as part of an impeachment investigation. If so, this surely can be done.
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Mr. Fitschen, when you claim that “the only fair reading” of something is your interpretation of it, that is an opinion — it does not take us “into the realm of fact.” More saliently, your opinion is emphatically wrong — and that is not just my opinion.
I respectfully suggest that you have a look at the Gingrich proposal. In it (at page 21), the former Speaker offers a series of practical steps, which include “Impeachment Power” and “Congress Can Create Statutory Guidelines for the Impeachment of Federal Judges.” In neither of these does Gingrich discuss the possibility of summoning judges to testify before Congress. That proposal, instead, is in a separate category having nothing to do with impeachment:
Judicial Accountability Hearings Congress can establish procedures for the relevant Congressional committees to express their displeasure with certain judicial decisions by holding hearing [sic] and requiring federal judges come [sic] to explain their constitutional reasoning in certain decision [sic] and to hear a proper Congressional Constitutional interpretation.
Patently, Newt’s concept is not impeachment-hearing subpoenas. Rather, he would have judges coerced to attend finger-wagging circuses — akin to when lawmakers, “to express their displeasure,” haul tobacco- or oil-company executives into their woodshed for a televised scourging. It is a brush-back pitch, not impeachment or serious legislating. The idea is to create an in terrorem effect that will discourage judges from overstepping their bounds while showing the folks back home that their congress-critter is righteously indignant over judicial imperiousness (though not necessarily indignant enough to do anything about it).
While business executives (other than union bosses) may have to put up with this sort of theater, judges and presidents do not. The Constitution makes them the peers of Congress. Not being subordinate, they are not subject to congressional commands that they show up for such dog-and-pony shows.
Thank you for setting the record straight. There seems to be a concerted effort to distort whatever Mr Gingrich says or does and very little thoughtful discussion of his positions or platform.
While I strongly disagree with judicial activism, it is not the court's job to rule how Congress wants it to rule. The court's job is to rule in favor of the Constitution and the laws on the books.
A court's real job is to decide real disputes between actual parties. Their work product is the end of the conflict, neither perfect justice nor enhanced public policy. The case law method of legal study and argument has warped the role into policy maker. Congress can correct these defects any time it desires to do so. It should blame its own sloth for the rise of judicial supremacy. And our ire should be directed at Congress.
McCarthy seems to be favoring a blanket judicial immunity to oversight and review. Put baldly, his unstated assertion is that judicial decisions are not subject to external review by the legislative branch (or executive, but that's not the issue here).
If this standard were applied to the executive branch, Congress would have no ability to conduct oversight on the actions of the various departments, agencies, etc. since they could not compel testimony to investigate, e.g., Fast and Furious. Such an assertion of executive independence is, of course, balderdash. Why, then, is the judicial branch, by McCarthy's line of reasoning, immune to review by the other branches?
The members of the Supreme Court might possibly be immune to Congress' subpoena power (save in cases of impeachment), analogizing from the principle that "no writ runs to a sitting president" but surely subordinate district court judges and circuit court justices are no more immune to legislative review than, e.g., the Attorney General or Secretary of Defense.
Perhaps McCarthy should review Article 3, Section 1 of the Constitution:
"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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."
This country needs to curb an imperial judiciary that has, over the last four or five decades, increasingly usurped legislative powers. That is certainly not "good Behavior" and I, for one, would welcome serious push-back from the legislative branch. While there is some room for abuse of such powers and the solution is not ideal, conservatives recognize that we do not live in an ideal world.
We can no longer afford to supinely accept any and all judicial decisions as, once they make their way thru the appellate process whereby other "judges for life" are the sole bulwark against judicial encroachment.
"Why, then, is the judicial branch, by McCarthy's line of reasoning, immune to review by the other branches?"
I will answer that in the nicest way I can: Professional comity.
Andrew McCarthy is a lawyer. The Article III judges are lawyers.
Practitioners and judges look out for one another. That's why judges allowed class actions, and have allowed the common law of many torts to expand beyond reason -- it's good for the profession's business opportunities.
It's also why logical minds like McCarthy's wish to illogically treat judges as some sort of special creature in our federal system. They're not. They are co-equal. Most lawyers, however, do not view judges as co-equal, but somehow superior.
And, that professional comity only grows deeper and stronger when the practitioner handles cases that, practically speaking, most often placed the practitioner and the judge on the same side of the law in almost every case.
It is more than comity. It is constitutional necessity, the same reason of independence that Congressmen can't be summoned by judges. Executives excute the laws. Their actions are subject to direct legislative oversight and their reports are essential to the legislative deliberations. Unlike judges whose salaries are protected from political reduction, executive officers can be defunded as well as directed and restrained by laws. They also come into direct conflict with citizens out of which legal controversies do arise. Therefore, executive officers are subject to judicial jurisdiction when the laws so provide.
Judges decide cases (live disputes) UNDER law. Their only direct impact is on the parties to the dispute. They will get it wrong sometimes, but they are not subject to the direction of lawmakers in judging cases. Lawmakers legislate, judges decided controveries that arise after legislating is done. Becoming embroiled in adjudication will politicize every legal dispute, something a life tenured judiciary was supposed to prevent. Congress can correct and clarify the laws if they don't like the results, but arguing with judges is a waste of time for both.
Legislators act by PASSING laws and resolutions, NOT by having televised hearings. Its hearings should be to inform itself, not to intimidate and show off. The Congress is the first and superior branch. The House and Senate should act like it rather than persist in developing ever more self-aggrandizing proceedings. Super Committees and "public hearings" are evasions rather than exercises of authority.
"Their actions are subject to direct legislative oversight and their reports are essential to the legislative deliberations."
Says who? Not the Constitution.
Separation of Powers has nothing to do with calling judges before Congress, any more than it does with Eric Holder testifying this month before them.
That you would treat judges inherently differently from the other two branches doesn't come from the Constitution either.
Frankly, I favor the power Congress has in Article III, Section 2, which everyone has forgotten about:
"the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
But quit telling me that judges can't be hauled before Congress.
Frankly, I'd love for Scalia to appear before Pat Leahy to defend our nation's Constitution. I think that robust debate not only is sorely needed, but that conservatives are on the winning side of it.
The American people love and revere their constitution, and the left is waging a war against it.
As I stated above, Congress can rein in the courts anytime it wants to. No need for Newt's histronics. President Andrew Jackson just ignored the courts. In an extreme case, Lincoln sent the justices home.
Congress can make life for our SCOTUS justices very unpleasent if they so chose. But, the question is do they really want to?
I think McCarthy mentioned in an earlier piece about the culptability of Congress in all of this. There are many lawmakers (perhaps even a majority) in both parties who do not mind in the least bit that the courts have taken many powers unto themselves. In some ways it is the courts that decide most of our most important legislative problems (regulatory, defence, social, and economic). From a congressional point of view, this relieves the average lawmaker of much respnsibility. He can now tell his constituents that the courts have tied his hands, and he can return to the most important business of spending other people's money.
Congress can reign in the courts anytime it choses - without resorting to Newt's radical solutions.
First, executive branch officials appear before Congress routinely, to explain themselves and their decisions. Perhaps the mechanism to secure their appearance is not a subpoena, and they show up voluntarily.
Great. Let's have judges invited to Congress to explain themselves. If it's good for executive officials to do that -- like Eric Holder twisting in the wind to explain why automatic ammo was purposely allowed to be transferred to the most dangerous criminals in the world -- then it's good for the judicial charlatans of the world on the federal bench.
The merit in Newt's proposal to compel judicial appearance before Congress is that it ends the silly tradition of treating the federal judiciary as if they're superior to the legislative and executive branches. They're not. If they had to be put in a pecking order, they'd be at the bottom.
So, pity the subpoena power! Cordially invite any number of philosophy wags-turned-ugly robe wearer to come to Congress -- just like any number of executive officials -- to publicly explain themselves in the presence of those who can speak back to them.
This would be no more of a dog-and-pony show than it is when executive officials regularly make the same sort of appearances before Congress.
Second, the notion that a judge -- or any other official -- must violate the law to be impeached is a fiction. The term misdemeanor -- as used in the late Eighteenth century and through most of the Nineteenth Century -- did not have any criminal counterpart. It was no where to be found in criminal law as a gradation of offense.
Misdemeanor meant any wrongdoing that brings public scorn. Witness the example given in Article II -- bribery. Not only was bribery not illegal at the time the Constitution was ratified, but it is still today not illegal in many circumstances.
The range of offenses is defined by the two examples provided in Article II -- treason and bribery, one the highest possible offense, and one very near the lowest possible offense.
So, someone may appropriately be impeached for any wrongdoing for which there is political will to officially rebuke and potentially remove the offender. Propriety of any impeachment proceeding is another matter altogether.
So, if one may be impeached for bribery -- the specific example of a misdemeanor provided in Article II -- then surely any official can be impeached and removed for thoroughly eviscerating one's oath to protect and defend the US Constitution.
When judges interpret our Constitution under hardly-existing norms under "international law", for example, they eviscerate our fundamental charter and can rightly be thrown off the bench.
Lastly, Congress created the Ninth Circuit. It didn't just spring to life from the inertia of "social justice" theory. Congress has re-organized the federal circuits countless times. What we now know as the Eleventh Circuit -- Florida, Georgia, Alabama -- was part of the 5th and 11th circuits previously. This is fairly recent -- while I went from undergraduate to law school, the southern circuits were reconfigured.
So I have no idea where Mr. McCarthy gets the notion that there is anything improper for Congress to place the Ninth Circuit out of commission by having the appeals from those states heard in existing circuit courts.
Or, the Ninth Circuit can simply be made smaller, and the Tenth Circuit larger. Remember that the Ninth Circuit was configured to comprise 1/3 of the nation's entire land mass for a reason -- so that the Constitutionally unhinged rulings from that Circuit would have far-reaching implications.
There is literally no logical reason why one federal circuit must be so large as to encompass 1/3 of our geography, with a docket that has swelled grossly out of proportion relative to the other circuits.
Especially not when one considers how much of their legal product is thrown out by the Supreme Court. This kangaroo-style court doesn't need to be perpetuated.
But let's not pretend that Congress -- with the power to create federal courts -- does not also have the ability to deconstruct them as well.
Replacing one silly tradition with a sillier one (more finger-wagging hearings) does not resolve anything. Purposeful impeachment is the answer. But that takes courageous and principled congressmen. Alas.
While I agree that courts can be abolished and one as defective as the Ninth may be a good candidate, One should not be too certain that its judges can be dismissed by such a scheme. Their peers would likely decide that life tenure means life tenure and that the Ninth's judges should be distributed among the surviving courts or removed by impeachment. It would be more practical to simply bribe them with money to resign, legally of course through a severance/early retirement offer that they can't refuse. Removing such horrible jurists would be a great economic stimulus to the West Coast!
Look, there will have to be a circuit court to encompass appeals from CA, WA, and OR.
The point is not to get rid of the judges, it is to limit their influence. And that is precisely the thinking that created the Ninth Circuit -- make it so large, that the conservative rulings from ID, UT, MT and AZ are washed out.
So, the same can happen to the judges of the Ninth Circuit again. Let some of them go into the 10th circuit, where their liberal opinions won't carry a three-judge panel.
Newt's a nut, but you propose bribing federal judges?
Thank you for clearly explaining the problem with Newt's subpoena threat. What might be added is that judges can't subpoena Congressmen to explain their dumb laws either. Separation of powers means that the non-executive branches stand on their written work, and cannot be compelled to explain it (although the executive might wish to voluntarily explain its work when seeking judicial enforcement of it).
The U.S. Supreme Court has recognized broad immunities for Members of Congress, explaining and understanding that they cannot do their job if they are subject to threats from executive prosecutors and judges, or if their time is consumed by "inquiries" of the other two branches. The same principle applies to judges. Newt's proposal truly smacks of the finger-wagging you describe. Legislators are far better at wagging at those in the arena than they are at acting themselves on principle. As a former Speaker with grand illusions (if not delusions) Newt should explain where all this standing up to the courts was when he had control of the House. He's an airbag.
What the House should do is have a "worst judge" contest every quarter, and vote impeachment articles on 4 judges per year. The purpose should be to find those who are most often reversed for stupidity or willfulness and those whose opinions demonstrate the greatest judicial arrogance and usurpation, regardless of whether higher courts have concurred in the decision. Leave it to the Senate to defend these fools. Four fired judges means four new friends of Senators can become judges! That no member of the Ninth Circuit has even had impeachment charges voted on in the House explains greatly why they continue their activist ways.
Courts are not foolish. They know what they can get away with, thanks to the slothful cowardice of legislators. If consequences were just a bit more likely the usurpations would decline. As it is, Members of Congress are far more likely to file suit promoting a new judicial usurpation than they are to propose impeachment for one. Usurpation is an abuse of office--whether it is inventing constitutional limitations on the states or political branches or legislating from the bench. (Neither is identical to merely expressing a policy opinion contrary to Congress's.) A suspected usurpation should be reviewed every time alleged. It should be investigated every time the allegations can be substantiated. It should be acted upon every time it can be clearly established. A nation of laws requires such action. Liking or disliking a case result has nothing to do with it. Congress is weak because it does not act. But if it increased its finger-wagging as Newt suggests, it would become weaker and less likely to act effectively.
Newt himself fell into the perjury trap that arises from politically motivated investigations (in company with Roger Clemens). The Speaker was foolish enough to sign a 120+ point affidavit including two slight errors that any careful reader should have noticed. Maybe he assumes that our judges would be as foolish as he and the Rocket and Congress could then punt a perjury prosecution to the Justice Department. I would not bet on it. Most judges manifest a slightly different temperament than Newt. They have all survived confirmation hearings in the Senate, something Newt might not be able to survive.
Has anybody seriously tried putting this proposal up to the mirror, so to speak? Everybody is fantasizing about liberal judges getting dressed down by their favorite conservative Congressperson, but what happens when the Barney Franks and Anthony Weiners of the world use it to threaten and harass conservative judges just trying to apply the Constitution as written? Is this really something that will help the quality of the judiciary, or will it just chase good judges into private practice?
This is the problem with Newt in a nutshell: too many ideas, too many un-thought-out consequences. I like Newt and his ideas, but he should never be given the power to implement them. That is a job for others, if at all.
Do you really believe that the Barney Franks and Anthony Wieners in Congress could credibly scold Roberts, or Scalia, or Thomas? I would love to watch one of those (plus Alito) school those idiots on the Constitution.
Only one issue with Mr. McCarthy's essay and that is "high crimes and misdemeanors" is not the standard to gauge whether a federal judge's conduct is worthy of impeachment. Article III of the Constitution provides that a federal judge shall hold his office "while on good behavior", which is arguably a much lower standard. I believe constitutionally flawed federal court holdings may constitute bad behavior subject to impeachment.
When conservatives are reduced to writing "Newt Gingrich is Right! ! ! !" after a media firestorm you know he stands no chance of winning the election. If he gets the nomination, though, look for a whole slew of these articles like what we saw in the Washington Times, because there's going to be plenty of opportunities to write them.
