Bench Memos

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Gingrich’s Awful Proposal to Abolish Judgeships—Part 1


In last night’s debate among Republican presidential candidates, Newt Gingrich defended his proposal to oust bad judges from office by statutorily abolishing the judicial offices they occupy. In a series of posts, Matt Franck and I will explain why we believe that this particular proposal of Gingrich’s is constitutionally unsound and politically foolish. (Matt and I may have somewhat different thinking on the underlying issues, so the views expressed by one of us should not necessarily be imputed to the other.)

In this opening post, I will set forth Gingrich’s proposal to abolish judgeships. At the outset, let me emphasize that this particular proposal is just one of many that Gingrich has offered to check judicial abuse of power, and my criticism of this proposal should not be mistaken as criticism of the others (many of which I affirmatively welcome). But, from what I can tell both from last night’s debate and especially from a recent meeting that I attended, it’s a proposal that Gingrich seems intent on highlighting.

In his “21st Century Contract With America,” Newt Gingrich sets forth his broad proposal to “[r]estore the proper role of the judicial branch by using the clearly delineated powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution.” As his lead example of “clear legislative and executive remedies” that “have been used in the past” for judicial usurpation of power, Gingrich states:

Thomas Jefferson and the new Congress abolished over half the federal judgeships and reorganized the federal judiciary with their repeal of the Judiciary Act of 1801 and their passage of the Judiciary Act of 1802.

The “white paper” that Gingrich links to develops his position more fully. Here is Gingrich’s historical account of the Jefferson precedent (pp. 16-17):

He was the first American president to confront a hostile judiciary. The Federalists had used the federal judiciary to enforce the Alien and Sedition Acts of 1798 to imprison Jeffersonian activists. After the Federalists lost the election of 1800, they had from November until March 1801 (back then inauguration did not occur until March) to try to slow down the emerging Jeffersonian majority. The Federalists more than doubled the number of federal circuit judges, picked the judges, and had their departing Senate majority approve the new Federalist judges. Thus the Federalists prepared to give up power confident they had boxed in the new majority.

The Jeffersonians reacted to this post-election court packing with fury. They called the new appropriators Midnight Judges. Jefferson and the new Congress abolished over half the federal judgeships and reorganized the federal judiciary with their repeal of the Judiciary Act of 1801 and their passage of the Judiciary Act of 1802. In the election of 1802 the Jeffersonians increased their majority over the Federalists in a campaign that further strengthened the legislative and executive branches against the judicial branch.

The Supreme Court ruled in Stuart v. Laird that this action was within Congress’s constitutional powers under Article III.

The “white paper” then sets forth Gingrich’s proposal (pp. 21-22), though much, much more tentatively than Gingrich himself has done recently:

Abolish Judgeships and Lower Federal Courts

The Constitution vests Congress with the power to create and abolish all federal courts, with the sole exception of the Supreme Court. Congress even has the power, as Congressman Steve King of Iowa frequently notes, to “reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle.” During the administration of Thomas Jefferson, the legislative and executive branches worked together to abolish over half of all federal judgeships (18 of 35). While abolishing judgeships and lower federal courts is a blunt tool and one whose use is warranted only in the most extreme of circumstances, those who care about the rule of law can be relied upon to consider whatever constitutionally permissibly tools they can find to fight federal judges and courts exceeding their powers. It is one of many possibilities to check and balance the judiciary. Other constitutional options, including impeachment, are better suited in most circumstances to check and balance the judiciary.

In the next post in this series, Matt will address the Jefferson precedent and explain why he believes that the history doesn’t support Gingrich’s proposal.


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