You may not agree with Newt a lot of the time but his understanding of most things and his insight are something to be reckoned with. He is on the right track and needs to be given continual consideration for his quest. In the whole field, he is the best GOP bet to shut down the Obama machine. Forget about the gaffs. Obama administration is full of gaffers. Newt can also shut the press down when they pinpoint trivial “news bites” that detract from the ability of a better leader. Read the whole article. Our future relies on those who have insight and are willing to come forth with ideas and processes.
By CURT LEVEY
‘Gingrich would arrest judges,” scream the headlines. You’d think he’d proposed some crazy, unconstitutional crackdown on federal judges. Instead, Newt Gingrich’s position paper, “Bringing the Courts Back Under the Constitution,” has a set of controversial but thoughtful proposals for reining in judicial activism.
These include calling judges before Congress to explain their decisions, impeaching judges or eliminating courts that consistently get the Constitution wrong, and limiting the applicability of Supreme Court decisions that distort the Constitution. They’ve been dismissed as violations of the Constitution’s separation of powers. The criticisms are overblown. All are constitutional if carefully implemented and constrained to the appropriate circumstances.
For example, Congress routinely asks executive branch officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort. It’s unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich’s. Subpoenaing Justices of the Supreme Court, the only court created by the Constitution, is a possible exception.
Mr. Gingrich discusses the possibility of abolishing individual judgeships or lower federal courts, while acknowledging that this would be “warranted only in the most extreme of circumstances.” The Constitution gives Congress the authority to “ordain and establish” lower courts. That includes the power to eliminate courts and judgeships, as Congress has occasionally done. Nonetheless, Mr. Gingrich concedes that “Other constitutional options, including impeachment, are better suited in most circumstances to check and balance the judiciary.” Stubborn disregard for the Constitution falls short of the “good behavior” required of judges and may justify impeachment.
Another controversial proposal: limiting the applicability of Supreme Court decisions. Mr. Gingrich proposes what Abraham Lincoln outlined in his First Inaugural Address, that “in certain circumstances, the holdings of Supreme Court decisions should be limited to the litigants in a case, and not be held to apply as a general controlling standard.” Accordingly, Lincoln refused to treat the high court’s Dred Scott decision—now recognized as outrageous judicial activism—as binding on the executive branch. If Lincoln’s position seems extreme today, it only reinforces Mr. Gingrich’s point that the balance of power has shifted too much toward the judiciary.
Like any plan designed to adjust the constitutional balance of power, Mr. Gingrich’s ideas for judicial reform raise a variety of intriguing constitutional questions. Though his freewheeling style adds to the focus on such questions, we should not lose sight of the plan’s valuable contribution to the debate on the courts.
Among those contributions is a clear identification of the problem: “The power of the American judiciary has increased exponentially at the expense of elected representatives” such that “the Supreme Court has become a permanent constitutional convention.” Mr. Gingrich understands that “judicial supremacy only survives due to the passivity of the executive and legislative branches.” He acknowledges the importance of an independent judiciary but points out that “judicial independence does not mean . . . judges can never be held accountable for their judgments . . . however extreme and unfounded.”
Instead, Mr. Gingrich argues that the other two branches have the power and the obligation to push back. “The President and each member of Congress takes an oath to defend the Constitution,” he notes; “if they believe that the judicial branch is acting contrary to the Constitution, then they have an obligation . . . to check and balance the judicial branch.”
There’s always the risk of overreach. But unlike the judiciary, democratic constraints provide a check. Even the popular FDR couldn’t get a heavily Democratic Congress to approve his court-packing scheme.
Mr. Gingrich doesn’t pretend to have all the answers. Instead he offers several possible ways to push back while acknowledging that the best remedy for judicial activism is a president and Senate that will nominate and confirm constitutionalist judges. Beyond that, he describes his specific proposals as “constitutional steps that the legislative and executive branches . . . can take to check and balance the judiciary” (emphasis added), noting that “these powers should be used sparingly.” His goals are modest; he hopes to begin “a national conversation” about “formulating executive orders and legislative proposals that will establish a constitutional framework for reining in lawless judges.”
While it’s easy to criticize anyone who sticks his neck out with specific reform proposals, the alternative is to allow the federal courts to remain unaccountable. Mr. Gingrich’s ideas deserve serious consideration, warts and all.
Mr. Levey, an attorney, is executive director of the Committee for Justice
Also google Levey to see his resume. This guy is no slouch!