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):
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But lying about it makes headlines flashier. “Gingrich Wants to Jail Judges” gets people riled up whereas “Gingrich Believes Judicial Reform Needed” might make people think, and maybe even agree. Not what they want.
Funny thing about that clip, I thought Fox News was in the tank for Republicans?
Au contraire Abe. Just this past fall, Ailes advertized a coming “course correction” for Fox News: http://www.nationalreview.com/media-blog/278355/fox-news-back-center-patrick-brennan
He got cut off because they knew he was wrong. It’s true you can send a marshall to serve a subpoena, and that marshals make arrests, but those are two very different functions.
I dunno. Although I respect the distinction between wanting to arrest a judge whose decisions one doesn’t like vs. arresting a judge who defies a subpoena to come in and testify about such a decision, aren’t most voters going to view the spectacle judges’ being compelled to publicly explain their bad decisions as a fairly radical innovation? I disdain judicial activism as much as anybody, but there is no way I could embrace what Newt is calling for here. Perhaps if haranguing could somehow be limited to just the worst-of-the-worst cases (Dred Scott?), it would be worth looking at. But in THIS era? With THIS political class in charge of Congress? They would be subpoening judges to submit themselves to barrages of sound bytes every week!
Maybe the talking heads are making it sound worse than it is, but it’s a pretty seriously unwise proposal in its original iteration. Ans why is Newt even talking about this? Unforced error, as they say.
Consider it the preliminary to an impeachment.
Sorry willy, but you are the one who is lying. On face the nation Bob Schieffer asks Gingrinch “Would you send the capitol police down to arrest him?”. Gingrich’s response? “If you had to. Or you would instruct the justice department to send a Marshall.”
Nice try. The full transcript is quoted in the post, and it was only how Congress (not even Newt) would enforce a subpoena to testify.
Um, nope. Points for trying to play off one response as another though. But the first question was if Newt would arrest a judge (Schieffer specifically says “you”). You are talking about the next question about a judge refusing a subpoena. It is to that question Newt starts off about impeachment and how the House would handle it. This is because the House specifically is charged for carrying out impeachment proceedings. The fact Newt seems to view ignoring a subpoena as a high crime or misdemeanor is also kinda scary.
“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?”
Hi Zaggs,
FYI – A “High Crime or Misdemeanor” is, in the parlance of my prior Civil Procedure professor, “Whatever the Hell Congress says it is.” There is no set definition.
As for the subpoenaing of a judge, I have absolutely no problem with that whatsoever. In my Arbitration business, if I’m not clear as to why I wrote something the way I did, I can be called in to explain it by a judge holding jurisdiction in the case.
As a technicality, Gingrich (as President) WOULD have to carry out the arrest of a judge who ignored a subpoena IF SO REQUESTED BY THE CONGRESS (i.e. if the Capitol Police couldn’t retrieve the Judge themselves). The Justice Department is an executive agency, and the President is at the top of the Executive Branch. The question by Schieffer was poorly phrased, as Schieffer was asking for Newts OPINION as to how it would be done, not how Newt himself would do it, which is clear from the context.
Besides that, The President can ASK Congress to do whatever he wants them to do. As a Co-Equal Branch of Government, they have every right to say “no.” Now there may be consequences for that refusal, but Congress has that right.
Zaggs, you’re a #$%^ing liar. How do you have the hide to quote the transcript, which clearly says “if you have to”, and pretend he said “if I have to”? You have no shame, character, or even common sense.
Does Congress has the authority to send a Justice Department Marshall to compel a judge to be present at a hearing? Can the legislative branch send someone from the executive branch to issue such an order? Doesn’t the Sergeant at Arms of the Congress have the power to enforce subpoena’s?
Professor,
Newt also said that he would ignore decisions he disagreed with a la Andrew Jackson and the Cherokee Indian case, and specifically cited Jackson to that effect.
He said that it’s always 2 out of 3 and that the President and Congress can ignore the SC whenever they want to. Is that what you teach at Cornell? Do you agree with that statement?
He said that as President he’d feel free to disregard the Supreme Court whenever he felt it was important enough to do so. That’s very scary. Not conservative at all. Talk about big government.
Imagine if Obama said something like that. Imagine if he told Schieffer “You know, Bob, this Supreme Court case on my health care reform is really irrelevant. Even if they strike it down, I’ll just ignore the decision and implement it anyway. And I’ll subpoena Scalia, Thomas, Roberts, and Alito to come explain themselves. And if they don’t, I’ll arrest them and make them do it” What would your reaction be? What would conservatives say?
Newt has a lot of good qualities. But this was an awful statement.
No it was not an awful statement, you are just stuck in the leftist mindset that nine Black Robes trump everyone else.
Each branch of the government is sworn to uphold the Constitution. The interpretation, and execution of that duty will always be a political act.
If someone gets out of line (including SCOTUS or lesser courts) then it is the obligation of the other branches to act to restore Constitutional integrity.
This notion that the plain text of the Constitution requires complex and often frankly contradictory ‘interpretation’ from courts is silly. But what is worse is the idea that, having issued their manufactured decision, this ‘precedent’ is somehow more permanent and less open to debate than the original ratified document.
People don’t like what Newt said because it pushes everyone out of their comfort zone. All the carefully drawn battle lines become mixed and muddled. Well, the only way we reverse the downward trajectory of our Republic is by doing just that.
Tuttle, do you claim that the judicial branch is superior to the other two? If it isn’t then where does it get the right to order the other two branches around?
Each branch is equal, and has an independent duty to uphold the constitution as it understands it. It makes no more sense for the executive to defer to the judiciary’s understanding than it would for the reverse to happen.
Holmes, why don’t you ask Abraham Lincoln about that? He routinely ignored Supreme Court decisions on habeas corpus, for example. Let’s face it, the court can issue whatever rulings it pleases. If the Congress won’t confirm impeachment, and the President orders the Secret Service (Executive Branch, remember?) not to allow him to be arrested, what exactly can the court do?
It was actually the bank case that Newt cited with regards to Jackson, but the same principle applies.
Here’s the quote about ignoring cases:
Schieffer: Mr. Speaker, the old saying in legal circles is that the Supreme Court is not last because it’s right, it’s right because it’s last. There comes a point where you have to accept things as the law of the land. How do you decide, how does the president decide what’s a good law and I’m going to obey the Supreme Court or what’s a bad law and I’m just going to ignore it?
Gingrich: I think it depends on the severity of the case. I’m not suggesting that the congress and the president review every decision.
Again, imagine if Obama said that. That in cases he deems “severe” he will ignore the Supreme Court and just do whatever he feels like.
As an objective observer it looks like Newt’s time is fading. He won’t win IA. We’ll probably see him start to fade in SC and FL and elsewhere. Perry looks like he may seeing a bit of a resurgence. Is it enough to win IA or at least finsih strong heading into SC and FL? We’ll see.
But I think this comment may be the nail in Newt’s coffin. Although, to be fair, his decline had already started.
A nice scenario would be Paul wins IA, Romney wins NH and there’s a huge opening for an as yet unannounced candidate to make a late entry.
update: In any event, the historian Newt got his facts wrong. The Supreme Court had nothing to do with the 2nd bank of the US and Jackson. The SC decision was McCulloch(one of the most famous cases ever) but hta was in 1819, 13 years before Jackson really started making noise going into his 2nd term.
Jackson’s veto that Newt referred to was over the Congress’ reauthorization of the charter in 1832, not a SC decision in 1819. A President can’t veto a SC decision. You’d think Newt would know that.
So, he really had his facts all wrong. So much for the smartest guy in the room.
Moreover, here’s the passage from Jackson’s veto message discussing the Court decision in McCulloch. He basically says that the SC decision is irrelevant and has no force of law. He says that the President and Congress can feel free to ignore the Court. Needless to say, that is a radical view and one which I’d suggest not 1 Justice on the current Court would agree with and very few members of Congress or of academia would agree with. Do you agree with Jackson’s view, professor?
Here it is:
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
Um, yes, Jackson was exactly right in that paragraph. If few current judges or academics agree with him, then so much the worse for them. Oh, and you just showed how Newt had his facts right, not wrong.
What part of this do you question?
Tucker Carlson, the Daily Caller Porno King and resident milfistani, is a low-life troll.
There are a lot of people using this as a club to beat Gingrich while spending zero time trying to understand what he is talking about. Steve Hayward at Powerline has a good post on the topic:
http://www.newt.org/sites/newt.org/files/Courts.pdf
The questions are about what we do with courts and judges who are consistently overruled? What do we do with judges who produce outlandish and unsupportable decisions. Why do we let Justice Kennedy be the sole arbiter of what is Constitutional and what is not?
These questions, and others, need to be explored, not swept away as a club.
“These questions, and others, need to be explored, not swept away as a club.”
Just so. I am all in favor of exploring where the lines are drawn in terms of the checks and balances on the federal court system.
Oops, wrong link for Powerline
http://www.powerlineblog.com/archives/2011/12/newt-for-scotus.php
I for one would like to hear a judge explain how he can jail someone for another person using terms such as invocation and benediction.
1st Amendment anyone?
If Congress can haul the administration in before its committees, why not judges?
Whether you like Newt’s specific remedies or not, it is clear to most people that the judiciary, including the Supreme Court, has gone way beyond it’s constitutional power. It must be reigned in somehow. It’s bad decisions must be subject to reversal by means short of a constitutional amendment.
Woohoo.
I got all this down in a thread down yonder – including Andrew Jackson.
Hey hey I nailed Cain’s s(wife’s height )exual metaphor down as a key to he man.
All from my couch 8000 miles away.
I have come to the sad conclusion that I am superior to 90% of America’s media & pundits.
bTW ask me about Murdoch. I got Fox news covered.
How is it lying to say that he’d have judges arrested? Read what you posted:
“Schieffer: …Would you send the Capitol police down to arrest him?
Gingrich: If you had to…”
That sure sounds like arresting judges to me. Sure – there’s a difference between “if you have to” – and arresting them as the first option – but still, Newt clearly believes (until he flips on it) that it is within the realm of possibilities to issue arrest warrants for judges.
By the way – Newt’s comment that he would emulating FDR in dealing with the Supreme Court should send shivers up our spines. If Obama tried to pull a stunt like packing the court with 4 more liberal judges – we’d all be going ape shit. The fact that Newt even suggests it should be SERIOUS cause for concern.
How do you twist “if you had to” into “if I had to”? Tell me that, liar.
Tucker Carlson is a bombthrower, and like most all of his ilk, liberal or self pro-claimed conservative, will never say what the real truth of the context of the conversation was, just as long as they can make some politcal points of attack, against anyone they dislike, or disagree with.
What else is new with them.. Political agenda to them, is more important than the truth.
dragging a judge before congress for the ‘crime’ of making a decision you do not like may not be “arresting” but it smacks too much of totalitarianism for my tastes. gingrich is a fine idea-guy, and even though i would enjoy seeing him debate obama, i’ve decided that i don’t want this guy in the oval office.
How is it different than dragging a cabinet secretary before Congress? Congress has the same oversight power over the judiciary as it does over the executive; it can impeach judges just as it can officers. And who said anything about “making a decision you do not like”? Gingrich is talking about gross misconduct on the bench, not honest disagreements.
I don’t have a problem with Congress holding hearings and requesting judges explain their decisions. If for nothing else, to clear up the increasingly irrational and unconstitutional decisions.
Newt hasn’t called for arresting judges. But the 3rd branch is not superior to the other branches who nominate and confirm judges. The other branches are co-equal and to any other arrangement elevates the judicial branch to a level not supported by the constitution.
Carlson really is a steaming pile of dog manure. I can’t believe how he has led the slanderous charge against virtually GOP candidate except Huntsman and Romney.
Whatever might that imply about Carlson and the “Daily Caller?”