I was surprised that the usually excellent Megyn Kelly’s debate question to Newt Gingrich about his proposal for reining in the judiciary intimated that former Bush administration attorneys general Michael Mukasey and Alberto Gonzales had panned the proposal as “dangerous, ridiculous, totally irresponseible, outrageous,” etc. To be sure, that’s what they said about some aspects of Gingrich’s proposal; but not the overall plan. In fact, as Megyn’s report states, Judge Mukasey said of Gingrich’s plan, “There’s a lot in there that’s good. Take a red pen to the parts that are bad, stick with the parts that are good, and run on it.”
For now, though, I just want to address a bad part that is getting most of the attention — as Kate’s post from yesterday indicates. That’s the business about issuing congressional subpoenas to federal judges to coerce them into explaining themselves before lawmakers. As many commentators have suggested, this proposal would violate separation-of-powers principles. The judiciary is a peer of the political branches. It would be no more appropriate for Congress to subpoena a federal judge (or that judge’s clerks) about the reasoning of one of the judge’s rulings than it would be for Congress to subpoena the president (or his top advisors) about a controversial decision that was within the president’s constitutional authority, or for a judge or the Justice Department to issue a subpoena to a member of Congress (or the lawmaker’s staff) to question that member about the deliberations over some legislative act that arguably went beyond Congress’s enumerated powers.
Put aside the constitutional problem, though. What I find most difficult to understand is the pointlessness — of both the proposal that judges be forced to explain themselves and the offense taken at the proposal.
In cases involving important questions of constitutional law, judges always explain their reasoning. Take Chief Judge Fred Biery’s infamous ruling that barred school prayer at a graduation ceremony — which Newt frequently cites. There is a great deal to be said about this ruling, but one thing that ought not be said is that the judge failed to explain his reasoning. He cited recent Supreme Court precedents, a number of circuit court rulings, and some district court cases applying these precedents. You can disagree with Biery’s reasoning, or you can conclude that the hash the Supreme Court has made of this area of First Amendment jurisprudence gives activist judges a wide berth to discriminate against religious expression in the public square. But you can’t say he didn’t tell you what he was thinking. He said his ruling was a logical application of higher court guidance which lower court judges like himself were bound to follow.
Why are we fighting about whether judges can be forced to explain themselves when judges always explain themselves? By all means, it’s worth arguing about why we don’t like the explanation, don’t believe it is called for by the Constitution, and don’t think judges should be legislating their preferences. It’s also vital to consider what can and should be done in response to judicial excesses — and Gingrich is doing a great service in provoking that discussion. But there’s no cause to champion a constitutionally dubious measure on the theory that, if Congress doesn’t subpoena the judges, we’ll be clueless about the rationales for these imperious rulings. The rationales are right there in black and white — just read the opinions.
Andy, you actually thought before posting--which puts you ahead of 95% of the current GOP red meat "base" (and brother, are they base) and those that cater to them no matter what.
Reply to this commentLinkReport AbuseGingrich's proposal is no less pernicious than FDR's court-packing plan.
If Congress could simply impeach and remove justices with whom it disagree, does anyone think Scalia/Thomas/Roberts/Alito would have survived the first to years of the Obama administration?
Reply to this commentLinkReport Abuse"does anyone think Scalia/Thomas/Roberts/Alito would have survived the first to years of the Obama administration?"
Yes, I think that they would have survived - easily in fact.
You're forgetting that to be impeached, the Senate has to vote by two-thirds majority to convict - that's 67 yea votes (for the people in Rio Linda).
Reply to this commentLinkReport AbuseNewt is a fan of FDR, he repeatedly called him the greatest president of the 20th century that set off alarm bells for me especially when I learned of his plans for the courts. From 2008 - 2010, we had the most progressive House and Senate in my lifetime, what did we get...ObamaCare and lots of other bad legislation. I don't trust the current Congress although it is a tiny bit better but they still hand more power to the executive branch. Congress does have power granted to them in the Constitution, let's not expand that, I trust the Founders, not Newt, Romney, Obama, Reid, McConnell, Pelosi or Boehner...so few of our elected official in DC undertand or refuse to uphold the Constitution.
Reply to this commentLinkReport AbuseI think Gingrich's weakest link in his argument was the mistake of citing a singular case and positing that because of that one case alone, that judge should have been called to account for it. That's a bridge too far for me.
BUT, what about judges and more importantly, Circuit Courts of Appeal, that almost as a matter of routine, are reversed. Why should judges be immune from a continuing evaluation of their ability to do their jobs as directed by the Constitution and Congress?
Hamilton, when making the case for stronger more independent federal judiciary, said in Federalist 78, "The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever."
Yep, that's the way it was drawn up, but is that how it has worked in practical application? In the last 50-years, we have had all manner of judicial fiat demanding that certain monies be spent in a particular way. Governors and Legislatures cut budgets and federal judges then restore the budgets because of discrimination, or whatever the reason de jour may be. How is that not wielding the power of the purse?
And, in decisions from this past decade, we have begun to see the nose of the Judicial camel begin to poke it's enormous head under the Presidents war-making tent. Did Hamilton imagine that the judiciary could command the President about the dispensation of prisoners captured on a battlefield?
Later in Federalist 78, Hamilton says, "It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power". Well, is that true anymore? Is the Judiciary the "weakest of the three departments of power"?
I'm not so sure. I think a compelling argument could be made that the Judiciary is no fully unrestrained, and with respect to that conclusion, Gingrich makes some sound points that are perhaps not as fully articulated as they could be.
Reply to this commentLinkReport Abuse@Scott "Gingrich makes some sound points that are perhaps not as fully articulated as they could be."
Isn't that Newt's Curse? Many tasty ideas...but baked into a fruitcake.
Reply to this commentLinkReport AbuseWell, for one, judges should be immune because the Framers meant them to be immune. The judges get a life term, on good behavior, absent a high crime or misdemeanor. And that's as it should be. For all we may want to yell and scream when judges make decisions based on constitutional interpretations we disagree with, what of when it protects us?
It shocks me that individuals like Gingrich refuse to take the good with the bad, and defend the principle of judicial independence itself. Yes, we lose some cases that are near and dear to conservatives. But what about the 2nd Amendment cases, that had conservative results and overturned local handgun bans? What about Citizens United, that overturned restrictions on free speech in elections?
What about healthcare reform? We are explicitly asking SCOTUS to strikedown Obamacare, NOT to defer to the legislature.
You can't have it both ways. Undermining judicial independence is dangerous for liberals and conservatives both, and when contemplating undermining the judiciary (as Newt does here, as Obama did when he dressed down the Court for its Citizens United decision) both would do well to remember that no one keeps power forever, and one day you may need the court as a bulwark against the unconstitutional excesses of the other side.
Reply to this commentLinkReport Abuse". The judges get a life term, on good behavior, absent a high crime or misdemeanor. "
And yet, when speaking about the impeachment of a Judge, the Framers left out the part about "high crimes and misdemeanors" and instead went with the much more vague and non-descriptive "good behavior". Aren't you, or anyone else, curious why that is?
It's pretty clear that the Framers didn't believe that just committing a crime would merit a Judge's removal from office - which was the standard applied to the Executive.
Your post completely ignores that fact.
Reply to this commentLinkReport AbuseI'm interested to see that Newt and others who want to rein in the judiciary are proposing these fairly silly ideas (Abolish courts! Subpeona judges!), but I have yet to see anyone propose an amendment to Article III to limit lifetime tenure - probably the most practical thing that could be done to encourage modesty and restraint among federal judges.
Reply to this commentLinkReport Abuse"As many commentators have suggested, this proposal would violate separation-of-powers principles. The judiciary is a peer of the political branches. It would be no more appropriate for Congress to subpoena a federal judge (or that judge’s clerks) about the reasoning of one of the judge’s rulings than it would be for Congress to subpoena the president (or his top advisors) about a controversial decision that was within the president’s constitutional authority, or for a judge or the Justice Department to issue a subpoena to a member of Congress (or the lawmaker’s staff) to question that member about the deliberations over some legislative act that arguably went beyond Congress’s enumerated powers."
And yet Congress does this all the time to executive branch officials, most recently their subpoena of Justice Department documents and their questioning of Attorny General Eric Holder. It seems to me Newt's idea is an entirely reasonable, and precedented, exercise of Congress's oversight authority.
Reply to this commentLinkReport Abuse"Why are we fighting about whether judges can be forced to explain themselves when judges always explain themselves?"
"forced" is the key word. Newt offered this idea as red meat, because it encourages people to imagine the judges being publicly rebuked, even humiliated.
Reply to this commentLinkReport AbuseWhat I think Newt envisions is calling judges up to Congress and berating them for show.
Reply to this commentLinkReport AbuseIn other words ... your typical congressional hearing.
Reply to this commentLinkReport AbuseEven Grindgrinch doesn't believe this, it's just a political ploy, tossing red meat to the morons who support him. As Harry Truman said about Richard Nixon, "one of the few in the history of this country to run for high office talking out of both sides of his mouth at the same time, and lying out of both sides." Cordially, Bill
Reply to this commentLinkReport Abuse"BUT, what about judges and more importantly, Circuit Courts of Appeal, that almost as a matter of routine, are reversed. Why should judges be immune from a continuing evaluation of their ability to do their jobs as directed by the Constitution and Congress?"
So are you arguing that the Circuit Courts of Appeal judges should be hauled before Congress for continuing evaluation, or that the judges who overrule Circuit Courts of Appeal judges should be hauled before Congress for continuing evaluation?
That's the problem with this whole idea. It always boils down to: Judges who rule the way I want them to rule=good judges; judges who rule opposite of the way I want them to rule=those who need to be hauled before Congress.
Reply to this commentLinkReport AbuseThe Constitution does in fact grant Congress the power to subpoena federal judges- it's in the same penumbra as Roe v. Wade.
Gingrich's suggestion (I'd hardly call anything Newt says a "proposal") is a good idea because it brings political pressure to bear on federal judges. When federal judges stray from the law and wander into politics, they should be held politically accountable.
Reply to this commentLinkReport AbuseSo you are not a conservative, and certainly not an admirer of the Framers.
Political pressure brought to bear is exactly the OPPOSITE of what the Framers envisioned for the judiciary. In fact, the snit that many get themselves into over judicial decisions and the desire for political retribution against judges proves the Framers' point, and displays their wisdom in insulating the Judiciary from political blowback.
OF COURSE the Judiciary will be involved in politically controversial matters, and the Framers knew it. Even though we did not have many of the statutes that today empower the Judiciary to decide cases (42 USC 1983 for example) they knew the Courts would be deciding on the constitutionality of government action, and potentially issuing writs of mandamus and/or injunctions to halt enforcement any unconstitutional act. That role was contemplated in the debates leading to ratification.
Do you really want political pressure deciding First Amendment issues? Second Amendment issues? If it did, I guarantee you Heller and Citizens United both would have come out differently. Do not burn down the whole forest just to get at the couple of trees you don't like.
Reply to this commentLinkReport Abusejudges always explain themselves
What planet are you referring to?
Reply to this commentLinkReport AbuseThat would be the planet where US legal research concentrates on the study of published judicial opinions on all levels of original jurisdiction and appeal. Basic legal training begins with the study of appeals court opinions, in which majority and dissenting judges must clearly explain their decisions.
One may agree or disagree with a judge's written opinion, but one cannot say that on most major issues they are not explained.
Reply to this commentLinkReport AbuseHummm, by explaining their decisions, you mean these kinds of thought processes:
1. First of All - It Feels Good and Right.
2. Second of All, I couldn't find an American president but I think the Europeans may do it this way and that's good enough for me!
Yes, drag their asses before Congress and the cameras and let's expose these clowns for the idiots they are.
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