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.