I want to associate myself wholeheartedly with Ed’s comments earlier today, particularly in light of the fact that I found myself quoted twice today in anti-Gingrich columns in the Washington Post, first by the editors, and on the next page by Ruth Marcus.
Newt is absolutely right, as Ed notes, about the myth of judicial supremacy. He is also right to highlight the groundlessness of the Supreme Court’s assertion in 1958′s Cooper v. Aaron that its own rulings are the “supreme law of the land” in a way that makes them indistinguishable from the Constitution itself, the views of the other coequal branches to the contrary notwithstanding. And Newt is right to argue that judicial misbehavior–the abuse of judicial power itself in the course of decision-making, not merely the use of its possession as an opportunity for corruption or criminality of other kinds–is potentially an impeachable offense. (Heck, I’ve been arguing that since the late 1980s, and it’s nice to see a politician who finally agrees with me!)
What is frustrating about Newt Gingrich is that he seems never to have heard the old adage, “nothing exceeds like excess.” As Ruth Marcus–whose column is a mixed bag at best for the reasons Ed has already given–rightly puts it, he is the Ron Popeil of American politics, always throwing one more Ginsu knife into the bargain offer. Heedless of the absence of historical support for some of his ideas, and of the presence of fallacies in his own logic, he barrels on, gaining steam as he piles fuel into the firebox of his outrage engine. If we can impeach judges, surely we can subpoena them for browbeating too! If Congress can legislate courts into existence, surely it can legislate them out of existence, sweep out the bad judges, then legislate the courts back into existence and start over! Right, right?
Saying much more would take me farther afield than the writ that normally runs here at Bench Memos, but this flap over Gingrich’s views on the courts strikes me as an instance of something else to be wary about. If he were the nominee, proposals like these would enable the Obama campaign to make Newt the issue. This election should be, needs to be, a referendum about the Obama record–the record of a faltering economy, of a feckless foreign policy, of an assault on multiple norms of American civil society (don’t get me started . . .). We do not need the problem of a Republican nominee who has to counter charges–even only partially accurate ones–that he would undermine the core constitutional principle of the independence of the federal judiciary. Maybe Newt Gingrich will end up the nominee of the Republicans. In that event, he should substantially modify what he has been saying lately about the courts.