Gingrich's Court-Sacking Plan: When Two Out of Three Is Bad


Yesterday on Face the Nation, Newt Gingrich said judges who reach decisions he does not like should be arrested and forcibly hauled before Congress to answer for their misdeeds if they refuse to come on their own:

Bob Schieffer: One of things you say is if you don't like what a court has done, the Congress should subpoena the judge and bring him before Congress and hold a congressional hearing. Some people say that's unconstitutional, but I'll let that go for a minute. I just want to ask you from a practical standpoint, how would you enforce that? Would you send the Capitol police down to arrest him?

Gingrich: If you had to, or you'd instruct the Justice Department to send a U.S. marshal. 

This is all part of Gingrich's scheme to rein in "radical judges" by impeaching them, abolishing their courts, or simply declaring acts of Congress unreviewable. At Thursday's Republican presidential debate, Ron Paul called Gingrich's proposals "a real affront to the separation of powers." Bush administration Attorney General Michael Mukasey, a former federal judge, deems them "dangerous, ridiculous, totally irresponsible, outrageous, [and] off the wall," saying they would "reduce the entire judicial system to a spectacle."

Gingrich's plan to beat the judicial branch into submission seems especially disproportionate compared to the provocations he commonly cites as justification. On Face the Nation he once again criticized U.S. District Judge Fred Biery, who last June ordered a Texas school district to keep prayer and references to it out of its graduation ceremony, including speeches by students. Another favorite Gingrich target is the U.S. Court of Appeals for the 9th Circuit, a three-judge panel of which ruled in 2002 that the phrase "under God" in the Pledge of Allegiance is "an impermissible government endorsement of religion," especially in the public school context. Gingrich has said that decision is "one of the major reasons that I am running for president," which makes it regrettable regardless of whether you agree with the 9th Circuit's interpretation of the Establishment Clause.

What do these two decisions have in common, aside from exemplifying the godlessness that Gingrich says is transforming America into "a secular atheist country, potentially one dominated by radical Islamists"? They were both overturned by the same judicial system he says is so hopelessly corrupt that its decisions must be pre-empted or nullified by Congress.

In an October column, I argued that Gingrich's assault on the judiciary would leave it ill-equipped to uphold the Constitution against legislative trespasses, even in cases where he himself wants the courts to intervene. Yesterday Bob Schieffer raised the same point, asking Gingrich whether President Obama could simply ignore a Supreme Court decision overturning the federal requirement that everyone obtain government-approved medical coverage, a mandate Gingrich says is "clearly unconstitutional." Here is Gingrich's reply:

He could try to do that. And the Congress would then cut him off. Here's the key: It's always two out of three. If the president and the Congress say the court is wrong, in the end the court would lose. If the Congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the Congress loses. 

Congress and the president, of course, enacted the Patient Protection and Affordable Care Act together. Since that is always true for acts of Congress, Gingrich is essentially saying there is no judicial solution to unconstitutional laws. The only hope is that elections will either put someone new in the White House or (as in this case) change the makeup of Congress so that it might stop the president from implementing a law approved by an earlier Congress. In effect, the Constitution prevails only when an electoral majority allows it to prevail, which radically undermines its strength as a check on the popular will.

[Thanks to Leeann Kline for the tip.]