George Will Condemns Gingrich's 'Anti-Conservative' Assault on the Courts

In his latest syndicated column, George Will lays into Newt Gingrich's "anti-conservative" assault on judicial review:

He says that the Founders considered the judiciary the “weakest” branch. Not exactly. Alexander Hamilton called the judiciary the "least dangerous" branch (Federalist 78) because, since it wields neither the sword nor the purse, its power resides solely in persuasive "judgment." That, however, is not weakness but strength based on the public's respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.

Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich’s campaign against courts repudiates contemporary conservatism's core commitment to limited government....

Gingrich’s unsurprising descent into sinister radicalism — intimidation of courts — is redundant evidence that he is not merely the least conservative candidate, he is thoroughly anti-conservative. He disdains the central conservative virtue, prudence, and exemplifies progressivism's defining attribute — impatience with impediments to the political branches'wielding of untrammeled power. 

Will reiterates a point I made in a column two months ago: Despite his disdain for the courts, Gingrich still expects them to intervene in areas where he thinks the government has exceeded its constitutional bounds, such as campaign finance regulation, gun control, eminent domain, and the individual health insurance mandate. Yet the court-intimidating reforms he recommends would discourage such decisions or render them ineffectual.

Will also cites the Gingrich quote I used at the beginning of that column, where he explains that he decided to run for president largely because of the 2002 decision (since overturned) in which the 9th Circuit deemed the phrase "under God" in the Pledge of Allegiance an unconstitutional government endorsement of religion. "Gingrich likened this to the 1857 Dred Scott decision that led to 625,000 Civil War dead," Will notes. Gingrich also implicitly compared himself to Abraham Lincoln. Will opens his column with another illustration of Gingrichian grandiosity: "When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when, discussing Bosnia and Washington, D.C., street violence, he said, 'People like me are what stand between us and Auschwitz.'"

More on Gingrich's anti-court campaign here, here, here, and here. Damon Root on the virtues of "judicial activism" here and here.

Addendum: New York Times legal writer Adam Liptak quotes additional conservative criticism of Gingrich's court-sacking plan:

Michael B. Mukasey, who was attorney general under President George W. Bush, said he grew slack-jawed in amazement as he listened to Mr. Gingrich's argument that the elected branches should be free to ignore judicial decisions.

"It would lead us to become a banana republic, in which administrations would become regimes, and each regime would feel it perfectly appropriate to disregard decisions of courts staffed by previous regimes," Mr. Mukasey said.  "That’s not what we are."

Michael W. McConnell, a retired federal appeals court judge who was appointed by Mr. Bush and now teaches law at Stanford, said he was less concerned, but only because Mr. Gingrich’s proposals are so far-fetched.

"If these things were actually done, it would be scary," he said. "Loose talk is not scary."...

Asked if Mr. Gingrich's proposed response [to Supreme Court cases he believes were wrongly decided] was problematic, [Mukasey] said, "Not any more than you get rid of termites by burning your house down."

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  • Spencer||

    But what if the court SMOKED MARIJUANA?!?!?!

    *George Will's ASSPLODES!*

  • Appalachian Australian||

    But but but we have to overturn Roe v. Wade!!!

  • Spencer||

    Yes, because... why? Oh that's right, we let our personal religious choices impact our political and moral ideas and believe they should be imposed on others.

  • Grummun||

    Caption: "If I push hard, my finger comes out the other ear!"

  • George Will||

    I find Newt Gingich's lack of adherence to the conservative philosophy of limited government reprehensible. He has no repect for free markets, individualism, and personal responsibility. Now please excuse me while I pen another editorial explaining why a limited government must arrest and imprison people for smoking weed.

  • ||

    It's not like G. Will is some huge drug warrior.

    Naked Christ on a pogo stick, the man's not Bill Bennett.

  • Fluffy||

    But since Gingrich apparently never wrote any offensive newsletters, he is obviously by far the preferable candidate.

    I would be embarrassed to support him if my liberal friends heard he wrote offensive newsletters. But I can hold my head high among my liberal friends as a Gingrich supporter, since all he wants to do is destroy the judiciary and embark on a dictatorship.

  • CE||

    But liberals would love to have someone grant the power to legislative majorities to have federal judges arrested and questioned whenever they stand in the way of "progress". If a "conservative" like Gingrich gives them cover to do so, that might even be worth 4 years of Newt in the White House.

  • Fist of Etiquette||

    Gingrich is not anti-conservative, he's statist to the core.

  • A Serious Man||

    Should it matter that judicial review is a power that was never given to the court system?

  • ||

    Ha, ha....

  • romulus augustus||

    What was the constitutional reasoning in Marbury v. Madison that said the Supreme Court did?

  • ||

    Here it is. Read it. There will be a quiz.
    http://supreme.justia.com/us/5/137/case.html

  • T||

    'People like me are what stand between us and Auschwitz.'

    If Gingrinch is all that's standing between us and Auschwitz, I expect Zyklon B out of my showerhead any fucking day now.

  • Cytotoxic||

    Zyklon B or anything other chemical is going to have a hard time getting through Gingrich's bullshit and his fat ass, so I think we're safe.

  • kinnath||

    What does this have to do with Ron Paul's newsletters?

  • wiggle||

    Gingrich is dropping fast, only the old-time support like Limbaugh keeps his campaign going. The Iowa poll numbers spooked the GOP into making a decision and the decision is Romney because he is the safer candidate.

    Neither Gingrich nor Romney has a chance of beating Obama anyway (though Mitt would get more votes than Newt)and I'm not really sure the GOP is all that bothered about not winning the Presidency - they just need a legitimate run so they can gain Congressional seats. This is where Paul hurts the GOP - they don't think Paul will help them beat Congressional Dem incumbents. But the tide is turning in that I think the GOP feels Newt hurts them even more than Paul in that area.

    I think Will has this right - Gingrich is sounding more impatient (read: radical) than Paul. There is no growing sentiment that the executive branch needs even more power, which is essentially Newt's shtick. The more Newt campaigns, the more people swing to Paul.

  • free2booze||

    Why Gingrich is an idiot:

    Supreme Court shoots down FDR New Deal programs.

    FDR threatens to pack the court.

    Anti New Deal justices retire.

    Court rules that you can't grow wheat for your own consumption.

  • free2booze||

    the end

  • Cytotoxic||

    of America

  • ||

    And yet John can't see how it wouldn't be any different this time.

  • CE||

    Gingrich’s unsurprising descent into sinister radicalism — intimidation of courts — is redundant evidence that he is not merely the least conservative candidate, he is thoroughly anti-conservative.

    Just when I'm about to stop reading George Will forever, he goes and writes something so endearing.

  • Scott66||

    "since it wields neither the sword nor the purse, its power resides solely in persuasive "judgment.""

    Apparently Will does not realize that what this quote implies is that the court is currently behaving in a manner Hamilton did not expect. The supremes rely on authority not persuasive judgement.

  • Newt Gingrich||

    I'm Newt Gingrich and I'm feeling ten feet tall!

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