Arresting Judges: It Just Makes Sense

Newt Gingrich hits a double with jailed-justice proposal

Presidential candidate Newt Gingrich is finding, again, that people don't really trust him to be our country's king. But with his flair for saying what nobody knew they were thinking, Gingrich shows why he's eminently qualified to be America's deformed court jester. 

In a chat with CBS' Bob Schieffer a few days ago, the blustery former Speaker of the House happily called for the arrest of judges whose decisions fall foul of a president and Congress. Gingrich wants Congress to issue subpoenas to bring judges in for congressional interrogations. 

"How would you enforce that?" Schieffer asked. "Would you send the Capitol Police down there to arrest him?"

"If you had to," Gingrich replied. "Or you'd instruct the Justice Department to send a U.S. Marshal. Let's take the case of [U.S. District Judge Fred] Biery. I think he should be asked to explain a position that radical."

The answer was classic Gingrich – stupid, but with a lot of thought put into it. He made sure to redirect Schieffer's proposal of using the legislative branch's police force in favor of a force that answers to the unitary executive. And rather than deal with the implications of his creepy idea, he waved the bloody shirt: In June Biery ruled in favor of a family seeking to restrict religious speech at a high school graduation ceremony at Medina Valley Independent School District in Texas.  The ruling was overturned by a federal appeals court. 

It's hard to say what is most appealing about Gingrich's proposal – maybe the prospect of using show trials to cure the lamentable camera-shyness of the federal judiciary – but the key is that it is an appealing proposal. Freddie Mac consultant Gingrich is a master of dorm-room brio, citing his credentials as a historian to draw in Montesquieu – that's Baron de Montesquieu to you – in defense of the principle that our nation's checks-and-balances ruling system really amounts to a best-of-three series. 

On more sure footing, Gingrich notes that the framers of the U.S. Constitution, once they were in power, behaved with the kind of wooly machismo he has in mind. "Jefferson," Gingrich said, "abolishes 18 out of 35 federal judges." 

At this point in the consciousness-raising session, a constitutional originalist would argue that in their more disinterested comments the framers – who appeal to us more because of the ideas they enshrined than because of the consistency with which they applied those ideas – wanted to give courts authority to void unconstitutional laws, and they wanted to do so long before the landmark 1803 case Marbury v. Madison established the habit of judicial review. When listing the arguments in favor of a bill of rights, Thomas Jefferson in a 1789 letter to James Madison singled out one: "the legal check which it puts into the hands of the judiciary."

But it wouldn't be fair to expect Gingrich to follow a discipline as strict as originalism. He's the last of the Aquarians, an impulsive sprite, enchanted with the flow of ideas and uncommitted to square, joyless principle. Gingrich's insights are ideas for a nation that is all stomach. 

In this case, his skylarking has led him to a place of real popular value. Forget for a moment that the judicial activism decried by both the left and the right is in reality a review process so deferential to legislative and executive will that courts overturn a mere three out of every 5,000 laws passed by Congress and state legislatures. Never mind that the decision Gingrich uses as his example of judicial overreach was itself thrown out under the current system. 

What matters is that judges think they're smarter than you. Why should you have to settle for that? Gingrich may have the physical appearance of a superannuated fanboy, but his appeal here is heroic and Jacksonian. It's hard to argue that judges – who act as sovereigns in the courtroom, are generally shielded from subpoena and rarely if ever face truly tough public questioning – couldn't stand to be cut down a notch or two. There could be peaceful means to that end: more open, televised reporting on judicial arguments, say, or maybe having the Senate use confirmation hearings to pressure judicial candidates to agree to some regular process of public questioning once they're seated. 

Gingrich, characteristically, hasn't got time for Fabian dillydallying. He wants to solve the non-problem of judicial activism baby-boomer-style: through a twilight struggle. And Americans are a pretty apocalyptic people. The notion of cops arresting judges is on its face offensive to an open society. But the scarier part may be that some portion of the electorate thinks it's a swell idea. One of those people is running for president.