Gingrich on the Judiciary

In case you missed it, here's Newt Gingrich explaining his views on the federal judiciary--and how to check it--yesterday to Bob Schieffer on Face the Nation.

 

Among the more eye-popping claims in the interview, Gingrich explains that separation of powers means that "it's always two [branches] out of three."  The "two-out-of-three" rule came up in response to Schieffer's question about whether President Obama could ignore a Court ruling overturning the Affordable Care Act (now at the Court, and scheduled for oral argument March 26 to 28).  Gingrich said it would depend on whether President Obama could get Congress to go along--two out of three.  (It doesn't matter, apparently, that Congress already went along.  It seems that the two-out-of-three rule only works if two out of three come to the right decision.)  This exchange is around six minutes into the interview.

Gingrich also says that Congress could subpoena a federal judge to explain his or her reasoning to Congress.  And more: Congress could enlist the Department of Justice to help do this.

Gingrich sets out his positions in more detail in a white paper modestly titled Restore the proper role of the judicial branch by using the clearly delineated Constitutional powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution at newt.org, his campaign site.  From the intro:

This NEWT 2012 campaign document serves as political notice to the public and to the legislative and judicial branches that a Gingrich administration will reject the theory of judicial supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive and legislative concerns and which seek to institute policy changes that more properly rest with Congress.  A Gingrich administration will use any appropriate executive branch power, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in any federal judge(s) whose rulings exhibit a disregard for the Constitution.  The historical and constitutional basis for this position is outlined in this paper.

Paper, at 3.  "The constitutional solution is threefold":

First, the executive and legislative branches can explicitly and emphatically reject the theory of judicial supremacy and undertake anew their obligation to assure themselves, separately and independently, of the constitutionality of all laws and judicial decisions.

Second, when appropriate, the executive and legislative branches can use their constitutional powers to take meaningful actions to check and balance any judgments rendered by the judicial branch that they believe to be unconstitutional.  An outline of some of these constitutional steps is outlined elsewhere in this paper.

Third, the executive and legislative branches should employ an interpretive approach of originalism in their assessment of the constitutionality of federal laws and judicial decisions.

A Gingrich administration will undertake each of these steps.

Paper, at 6.

Gingrich says that one of his strengths is that he's not a lawyer and therefore not bound by elitist views of the role of the courts.

SDS