When I heard Gingrich say that he would send Marshals to arrest judges who refused to appear before Congress and explain their decisions (as if their rulings were not enough), I felt a frisson of fear, but shrugged it off as Newt being Newt and messing with our heads.
Now I've read his whole plan. I am officially scared. The man is serious. His plan is nothing less than the abasement, the humiliation, indeed the destruction, of the third branch of government.
I have gone through the whole plan and picked out some portions that really convince me Gingrich may be one of the most dangerous people ever to run for President.
The portion of the "21st Century Contract With America" I am concerned with is Item No. 9, entitled "Bringing the Courts Back Under the Constitution." After much table-pounding and partial quotations from the Founders, he gets down to brass tacks and tells us what he is going to do to the federal judiciary.
After "Electing the right Senators" and Nominating and Confirming the right Judges," both of which are political questions with which I do not quarrel, he suggests "Setting Limitations on Federal Court Jurisdiction," specifically "remove the power of the courts to hear certain types of cases that the executive and legislative branches believe the federal judiciary has simply gotten wrong in the past." (P. 20.)
Basically, he would put into a statute a specific provision that barred the lower federal courts from reviewing it. That actually has been done. The Antiterrorism and Effective Death Penalty Act of 1996 (commonly known as AEDPA) limits the courts' review powers of habeas review in death penalty cases. However, the example he offers: "the absolute rejection of judicial supremacy as a violation of the Constitution's balance of powers" appears to exceed the ability of Congress to limit judicial review. But let's assume arguendo Congress may do this.
What is Gingrich's next step? Congress and the President "could explicitly provide by statute that any federal judge that refused to adhere to the legislative limitations on jurisdiction would be subject to impeachment and removal ...."
Keeping in mind that the United States Constitution permits impeachment only for "treason, bribery, or other high crimes and misdemeanors," what Gingrich is saying here is that he would make the rendering of a judicial decision Congress found erroneous a crime. (See U.S. Const., Art. 1, Section 4.)
Just in case you think I'm exaggerating, here is it is again:
"Congress can create specific statutory measures that govern the impeachment of federal judges. The simple Congressional action itself of codifying existing constitutional authority to impeach judges on various grounds, including the issuing of unconstitutional opinions, assessing arbitrary power, and otherwise usurping the authority of the legislature would send an unmistakeable signal to all federa judges of a renewed commitment by the legislative and executive branches to defend the Constitution against oppressive and tyrannical judges." (P. 21.)
Of course, it would do much more. It would make the issuance of an opinion which the Congress found to be a mistaken interpretation of a law a crime. Keep in mind the grounds, baked into the Constitution, for impeachment.
Judges, being human, make mistakes, or simply see things differently. Those mistakes sometimes take the form of rulings which later are held by a higher court to be mistaken interpretations of the Constitution. The lawbooks are filled with such rulings. They have never, in the history of this country, been found sufficient to impeach the judge.
As if that were not enough to keep anyone but a craven coward from applying for the job of judge, Gingrich would "establish procedures for relevant Congressional committees to express their displeasure with certain judicial decisions by holding hearing and requiring federal judges come before them and explain their constitutional resoning in certain decision [sic] and to hear a proper Congressional Constituitonal interpretation."
Can you imagine anyone but the craven being willing to go through such humiliation for the sake of a job that pays less than a first-year associate in a large law firm makes?
He's not finished yet. While admitting this solution is a "blunt tool," he suggests abolishing judgeships and lower federal courts. Yes, gentle reader, abolishing the federal courts (except for the Supreme Court, which even Gingrich admits he can't abolish).
Gingrich may not be able to abolish the Supreme Court, but he asserts "Congress ... can reduce or eliminate funding of Courts to carry out specific decisions or a class of decisions." He gives no clue as to how this defunding would take place without affecting all the other cases federal courts decide.
And there's more. "In very rare circumstances, the executive branch [that is, President Gingrich] might choose to ignore a Court decision."
This is the example he gives:
"For example, if the Congress were to enact a statute on military commissions that explicitly limited federal court jurisdiction, then the President would be warranted in ignoring any judicial decision or action that violated the limitation on jurisdiction. It is proper to do so because the Congress that enacted the law presumptively believed it was constitutional. The President who signed it (assuming no veto) thought it was constitutional and the President who ignores the court decision thought it was constitutional. Thus, it is two branches against one, in an area where the Constitution empowers the executive and legislative branches (not the judicial branch), and in a case in which the judicial branch is violating constitutional limitations on its authority." (P. 22.)
In case you were wondering what types of cases would bring down the Presidential wrath, Gingrich gives some examples: (1) a ruling (Hosanna-Tabor Evangelical Lutheran Church v. EEOC) holding that religious organizations cannot discriminate against employees (unless the employee performs exclusively religious functions); (2) cases extending judicial review to Guantanamo detainess; (3) cases affecting the definition of marriage.
One of the jewels in the crown of American democracy, and perhaps the one institution Americans should be most proud of, is our independent judiciary. Every day we read about judges in other countries being threatened, charged with crimes, removed from office. It does not happen here. Or at least it has not. All that will change if Newt Gingrich becomes President of the United States.
