In an essay for the Hoover Institution journal Defining Ideas, James Huffman, a professor at Lewis and Clark Law School, sympathizes with Newt Gingrich's complaints about judges who legislate from the bench or rewrite the Constitution but criticizes some of the presidential candidate's proposed solutions, saying they would threaten liberty by undermining judicial independence. Huffman faults Gingrich for perpetuating "the now commonplace dichotomy of judicial activism versus judicial restraint," noting that properly applying the Constitution may mean overriding actions by the executive or legislative branch (as Gingrich himself implicitly concedes). "We could use more of the right kind of judicial activism," Huffman writes. "Judicial reform, founded on the activism/restraint dichotomy evident in the Gingrich plan, actually threatens liberty—the very first of Gingrich's stated concerns."
Huffman welcomes the idea that Congress and the president should take their oaths to uphold the Constitution more seriously, instead of leaving such concerns to the courts. He quotes Rep. Pete DeFazio (D-Ore.), who when asked about the constitutionality of ObamaCare's individual health insurance mandate replied, "Well, um, I'm not a lawyer...that's why we have courts. Congress often passes laws that are of dubious or questionable constitutionality." Huffman condemns that mentality: "All federal officials take a constitutionally mandated oath to uphold and defend the Constitution. Taking action without confirming its constitutionality violates that oath." But Huffman challlenges Gingrich's suggestion that Congress and the president can trump the Supreme Court's interpretation of the Constitution with their own, ignoring decisions with which they disagree. "Where a dispute involving the executive or legislative branch is before a court having jurisdiction and can only be resolved by interpreting the Constitution," he says, "the court must be the final arbiter of constitutional meaning or one of the parties becomes a judge in its own cause, and the rule of law is abandoned to the rule of man."
Huffman also questions Gingrich's proposal that Congress impeach judges who make decisions it does not like, saying that would invite "inappropriate political intervention in the judicial function":
Furthermore, it is probably unconstitutional. The Constitution allows for impeachment for "treason, bribery or other high crimes and misdemeanors." If deciding a constitutional question wrongly—in the opinion of a majority of House members and two-thirds of the Senate members—constitutes a high crime or misdemeanor, impeachment will become a political threat against all manner of federal officials (including presidents) on the basis of alleged unconstitutional action. While it may be persuasive that purposeful unconstitutional action is a high crime and misdemeanor, can we anymore rely on the president or members of Congress than on federal judges to say what is unconstitutional?
Huffman notes Gingrich's admiration for FDR, whose anti-judicial campaign was aimed at evading constitutional limits on federal power. "It seems passing strange," he writes, "that Gingrich, the self-proclaimed candidate of liberty and limited government, would look as a role model to the president who launched the inexorable expansion of the federal government." It seems strange only if you assume that Gingrich is a principled advocate of limited government, as opposed to an opportunistic, power-hungry weasel who considers civil liberties a nuisance, thinks grandiose is a compliment, and sees government as a tool to achieve whatever goals strike his fancy.