Monday, December 19, 2011

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, 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.


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I "explicitly and emphatically reject" Gingrich's notions as terrifying. He claims his biggest strength to come from the fact that he is a historian and not an attorney. He criticizes judicial activism, yet his entire platform serves as a vehicle for Christianity. I am concerned to know whether he has ever read the Establishment Clause - or is that only taught to us "lawyers"?

Posted by: Nicole | Dec 19, 2011 2:40:24 PM

Newt's approach to "reform" of the judiciary is the worst idea yet! An independent judiciary and the rule of law has been fundamental in preserving the American democracy and the freedom of the American public. Unless he recants this silly approach he deserves to be DEFEATED.

Posted by: James Schoener | Dec 20, 2011 7:07:55 AM

What I am more concerned about is the failure of the founders to effectively check SCOTUS. While pretty much all framers intended that SCOTUS be the weakest branch, much to the detriment of the country, it has proven to be a good intention only. So long as the removal of SCOTUS justices soley hinges on their conviction of treason, bribery, high crimes and misdemeanors--NOT errors in judgement--these unelected, black-robed, life-long oligarchs hold full sway over the direction of the Republic, far more influence than ANY of the framers ever envisioned or intended. I appreciate Newt's honestly discussing this loophole and possible solutions. Ultimately, we the people are the final arbiters of what is and what is not constitutional--not the judiciary, and most certainly not Congress or the Executive. In the early 19th century, none other than T. Jefferson warned that "...the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch." And that is precisely where we are now. I am glad Newt has begun a discussion regarding reforming the judiciary. Long overdue.

Posted by: Jim Delaney | Dec 20, 2011 8:55:28 AM

Re Jim Schoener: "An independent judiciary and the rule of law has been fundamental in preserving the American democracy and the freedom of the American public." And just how well has that turned out for us? The litany of revisionest "rulings" over the years has all but eviscerated the Constitution. In the infamous words of Chief Justice Hughes in 1941,"The Constitution is what WE say it is." So much for "constitutional supremacy" and safeguarding our liberties and Republic.

Re Nicole: I believe Newt's biggest strength on this issue is the fact he is NOT an attorney who, by training, twists and bends the original meaning of the Constitution to advance a political agenda or to simply win an argument. A good justice need not be a lawyer. Newt should "recant his approach?" How monarchical of you.

As said this discussion is well past due. The Constitution has been on life support, and with it the Republic, since Marbury v Madison. Time for reformation.


Posted by: Jim Delaney | Dec 20, 2011 2:37:16 PM

Re J. Schoener's comment:"an independent judiciary" doesn't always equate to "rule of law". You need but look to the litany of revisionist case law to understand that. Newt should "recant"? Reminiscent of the Inquisition. If anything, an unbridled judiciary has eroded personal liberty and weakened our Republic. To assert otherwise is irresponsible and dishonest.

Re Nicole's comment: So being Christian and appreciating that our laws are based on the Judeo-Christian belief system is somehow odious and in conflict with the rule of law or the Establishment Clause? Wow! It appears you MAY have read the Establishment Clause, but may NOT have understood it. Also, a lawyer is, by training, taught how to win arguments, NOT on how to read the Constitution. Thus,to my way of thinking, not being an attorney is a asset, not a liability.

Posted by: Jim Delaney | Dec 21, 2011 11:57:12 AM

"I believe Newt's biggest strength on this issue is the fact he is NOT an attorney who, by training, twists and bends the original meaning of the Constitution to advance a political agenda or to simply win an argument. A good justice need not be a lawyer."

Interpreting the law is easier when one has legal training, particularly the complex issues (most of which get little press and result in supermajority opinions) are involved. It is also unclear why he can't do the same thing you allege, especially since politicians would logically wish to "advance a political agenda" even more than attorneys!

Posted by: Joe | Jan 3, 2012 11:03:25 AM

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