Newt Gingrich wants to restore a balance between the branches of government, and address what a lot of people see as an imperial judiciary.
His white paper lays out a variety of mechanisms, most of which are not controversial. One in particular, that Congress should subpoena judges in rare circumstances to explain judicial decisions, has garnered the most attention as a result of Newt’s interview on Face the Nation (transcript).
Newt was asked whether Congress would have the power to compel appearance and if so, by what mechanism; Newt answered that it was no different than in an impeachment proceeding where the Congress could compel appearance (emphasis mine):
Schieffer: Let me just ask you this. You talk about enforcing it because 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. Marshall. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word benediction and invocation? Because before…because then I would encourage impeachment. But before you move to impeachment, you’d like to know why he said it. Now clearly since the congress has the power…
Schieffer: What if he didn’t come? What if he said, no thank you, I’m not coming?
Gingrich: Well that is what happens in impeachment cases. In an impeachment case, the House studies whether or not, the House brings them in, the House subpoenas them. And as a general rule they show up. I mean, but you’re raising the core question, are judges above the rest of the constitution? Or are judges one of the three co-equal branches?
I disagree with subpoening judges in a context other than constitutional impeachment proceedings.
But the media, including the conservative media, is misrepresenting what Newt said, claiming that Newt wants to arrest judges whose decisions he does not like. That’s just not true.
Here is Tucker Carlson making the claim on Fox News (h/t reader Munch):
(Added) Misleading subtitles: