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Newt and the Courts . . . Again
A response to Stephen W. Fitschen

Newt Gingrich campaigns in Iowa, Dec. 28, 2011.

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Andrew C. McCarthy

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.



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