Now I’ll explain why I believe that Newt Gingrich’s proposal to oust bad judges from office by statutorily abolishing their judicial offices is politically foolish. Let me clarify at the outset that I am referring to the politics of presidential governance, not to the politics of campaigning.
Although it is discouraging to contemplate the possibility, it may well be that Gingrich’s proposal is a political hit with Republican primary voters. That would at least provide a rational explanation why Gingrich is now advocating employing against the entire Ninth Circuit an idea that his campaign’s own “white paper” says would be “warranted only in the most extreme of circumstances.”
My simple argument is that Gingrich’s advocacy for his proposal to abolish judgeships threatens to undermine his ability, if he is elected president, to achieve real and readily attainable progress in the war against liberal judicial activism.
On the judicial front, the most important task of a Republican elected president in 2012 is to nominate and win Senate confirmation of quality Supreme Court justices. Right now the Court is divided 4-1-4, with four excellent judicial conservatives on one side, four liberal justices on the other, and Justice Kennedy in the middle, sometimes joining with the conservatives, but in many critical cases (e.g., Planned Parenthood v. Casey, Lawrence v. Texas, Boumediene v. Bush, Lee v. Weisman) joining with the liberals. In a first term, a Republican president would have a strong prospect of appointing Justice Ginsburg’s successor, and, whether in a first term or second term, would also likely do the same for the Breyer, Kennedy, and/or Scalia seats.
In short, at some point in his first term, a Republican president who acts with strategic savvy could establish a solid judicial conservative majority on the Court. By the end of his second term, he could build a 7-2 judicial conservative majority that could be expected to endure for two decades.
Is there really any need to spell out how transforming the Supreme Court in this way would accomplish far more to combat bad judging than abolishing the entire Ninth Circuit or unseating some rogue district judge in San Antonio would?
To be sure, a Republican president is not guaranteed to be successful in picking good nominees and in getting them confirmed. The task will require intelligent deployment of political resources. But that’s exactly why I find Gingrich’s proposal to abolish judgeships (along with his quixotic plan to impeach judges for bad decisionmaking, to compel them to testify before Congress, and to arrest them if they refuse) so maddeningly foolish, for it gratuitously makes it much more difficult for a President Gingrich to win confirmation of his Supreme Court nominees. How simple it would be for Democrats and the media to build the political case against Gingrich’s nominee by calling into question Gingrich’s own fitness on constitutional questions. And that would be true whether or not Gingrich as president actually decided to pursue his campaign to abolish the Ninth Circuit.
If a President Gingrich did actually try to unseat all the Ninth Circuit judges, a political firestorm would erupt, and many of the folks who would be Gingrich’s natural allies in the war against bad judging would see no choice but to oppose his scheme. I think that the prospect that the Gingrich plan would be successfully adopted is zero, but consider how terrible it would be if Gingrich did succeed: The precedent he established would equally apply to Supreme Court justices, so the Left could unseat, say, Chief Justice Roberts or Justice Thomas the next time Democrats controlled the White House and Congress. One need not share the inflated understanding that many folks have of the concept of judicial independence to recognize that the Gingrich plan is not consistent with our federal constitutional system of separated powers.