Newt Gingrich is pushing even harder against "activist" judges as he seeks to keep his momentum in advance of the Iowa caucuses, the first contest of the Republican nominating process. That put him, on Sunday, in the position of defending some of his recent remarks about the judiciary, especially Gingrich's insistence that the legislative and executive branches of government could simply ignore a court ruling with which they disagreed.
That led to a remarkable exchange with "Face the Nation" moderator Bob Schieffer, who read Gingrich the reaction to that idea from Michael Mukasey, a conservative judge and former attorney general under President George W. Bush: "I'm going to just quote what Mr. Mulcasey said and he told this to Fox News, he wasn't telling it to Mother Jones. He told Fox News, he said 'Mr. Gingrich's proposal is dangerous, ridiculous, totally irresponsible, outrageous, off the wall, and would reduce the entire judicial system to a spectacle.'"
Gingrich: I think many lawyers will find this a very frightening idea. They've had this run of 50 years of pretending judges are supreme, that they can't be challenged. The lawyer class defines America. We've had rulings that outlawed school prayer, we've had ruling that outlawed the cross, we've had rulings the outlawed the 10 Commandments, we've had a steady secular drive to radicalize this country away from all of its core beliefs. I mean what got me into this was the 9th Circuit saying that one nation under God is unconstitutional. We live in a country where judge Biery can literally say I will put you in jail for saying the word benediction. There's something profoundly wrong with the judicial system that has moved to that kind of extreme behavior.
Schieffer: But I would also add that what happened in that case is that an appeals court overturned that judge.
Schieffer: And the system worked.
Gingrich: No the local school board ended up paying large legal fees.
There's a sense sometimes, as Gingrich rambles along the parapet of his own passionate feelings about policy and government, of a Super Mario figure hopping over whatever fireball or rolling boulder happens to be thundering toward him next. That is, as opposed to someone who has thought through what some of his most headline-grabbing opinions would mean to a coherent system of laws ahead of time. Earlier in this exchange, Schieffer asked about the notion of simply ignoring unpopular court rulings: well, why wouldn't Congress have just ignored Brown v. Board of Education, and thus hugely set back the cause of integration? Gingrich responded by saying Congress could have also ignored the noxious Dred Scott decision.
That's a parry, not an answer. Similarly, when Schieffer asked about the process of Congress subpoenaing judges to explain unpopular decisions, Gingrich diverted down the narrow lane of another non sequitur: Schieffer wanted to know if Capitol police would be sent out to bring judges to the Capitol, and Gingrich offered the possibility that federal marshals might do the job, then changed the subject to impeachment, an inherently legislative process. (Admittedly one with which he may feel quite familiar.)
The attracting essence in Gingrich — a controversy-courting ace arguer, keen to do intellectual battle with foes on all sides — has a downside: the risk of sounding like a really smart kid who's done plenty of reading for other classes but hasn't studied for his current exam.
The reviews were not pretty on Sunday. In The Atlantic, Andrew Cohen led with a stiff right:
In early October, when Gingrich was nowhere in the polls, he ginned up a patently unconstitutional argument for subpoenaing judges to come before Congress to justify and explain what Gingrich considers their "radical" decisions. "The spectacle would be like a dog walking on its hind legs," said Bruce Fein, the respected conservative attorney and former Reagan official, when asked about Gingrich's plan. "You are surprised not that it is done ineptly, but that it is attempted at all."
Fein goes on to say Gingrich's proposal is a worse idea than Franklin D. Roosevelt's attempt to pack the Supreme Court with agreeable justices, arguably the nadir of his entire presidency.
The New York Times noted that Gingrich's comments were in the context of a "continuing crusade," including a conference call with reporters on Saturday, aimed at pumping air into the issue as the Iowa caucuses near.
And conservatives, especially those who'd like the courts to overturn some Obama administration initiatives (a certain healthcare reform comes to mind) are not enthusiastic about Gingrich's current gambit. Some seemingly found themselves athwart Gingrich's push to lessen judicial power, yelling Stop. (Ahem. Apologies.)
Michael W. McConnell, director of the Constitutional Law Center at Stanford University and a former federal appeals judge appointed by Bush, also observed that conservative audiences “should not be cheering” and “are misled” if they believe Gingrich’s proposal is in their interest at a time when Republicans are looking to the Supreme Court to declare President Obama’s health-care law unconstitutional.
“You would think that this would be a time when they would be defending the independence of the judiciary, not attacking it,” he said. “You can’t have it both ways. It can’t be that when conservative Republicans object to the courts, they have the right to replace judges, and when liberal Democrats disapprove of the courts, they don’t. And the constitution is pretty clear that neither side can eliminate judges because they disagree with their decisions.”
The view from slightly further left was succinctly summarized by Steve Benen for Washington Monthly.
Just so we’re clear, this week, a leading presidential candidate articulated his belief that, if elected, he might (1) eliminate courts he doesn’t like; (2) ignore court rulings he doesn’t like; and (3) take judges into custody if he disapproves of their legal analyses.
I hope it’s unnecessary to note that Gingrich’s vision is stark raving mad.
Here's the full exchange from "Face the Nation."