The candidate wants to teach judges a lesson by calling them to account on Capitol Hill. Here are just two reasons why that's a terrible idea.
Newt Gingrich has expressed many reckless ideas in his long public life. Here is the latest: He wants Congress to subpoena federal judges whose decisions it disagrees with so that legislative committee members can hector those judges in public for "dictating" the law to the American people. This, Gingrich concludes, would "re-balance" the Constitution in a way that he thinks is appropriate.
Gingrich pitched his anti-judiciary message not once but twice this past week. On Sunday morning, on CBS News' Face The Nation broadcast, he had this exchange with a stunned Bob Schieffer, the long-time host of the show:
Schieffer: All right lets shift just a little bit here. Mr. Gingrich you got some attention yesterday when you lit into the Supreme Court at the Values conference. You basically said it should just be ignored on occasion and challenged on other occasions. You said that you would for one thing, call judges before Congress. Is that what I understand?
Schieffer: Well how in the world would you do that? They're in one branch of government...
Gingrich: You subpoena them.
Schieffer: But one branch of government can't subpoena people in the other branches of government..
Gingrich: Of course you can.
Schieffer: They don't have to honor the subpoenas.
Gingrich: Bob if that's true, then the court can't say something to the Congress either can it? By your standards, this Supreme Court cannot dictate to the President and cannot dictate to the Congress. But they do. And there are clear provisions in the Constitution to re-balance it. There's a judge in San Antonio that issued a ruling so anti-religious, so bigoted, and so dictatorial in June 1st. He should be called in from of a committee and they should ask him, by what right do you dictate to the American people?...
There is more. Here's the video so you can watch for yourselves.
Now I said -- I mentioned Jefferson, but there are other steps you could take that -- that are far short of wiping out half the judges. One, you can hold hearings. I -- I think for the Congress to bring in Judge Biery from San -- San Antonio and say to him, explain to us your rationale --AUDIENCE MEMBER: Yeah. (Applause.)
MR. GINGRICH: -- by what right will you dictate speech to the American people? How can you possibly take your court order and the First Amendment and tell us that this is about free speech? Just -- judges who knew that when they were radically wrong they'd be hauled in front of Congress would immediately have a sobering effect about how much power they have.
Gingrich told his audience that he:
would instruct the national security officials in a Gingrich administration to ignore the recent decisions of the Supreme Court on national security matters, and I would interpose the presidency in saying, as the commander in chief, we will not enforce this.Congress has the power to limit the appeals, as I mentioned earlier. Congress can cut budgets. Congress can say: All right, in the future, the Ninth Circuit can meet, but it will have no clerks. (Laughter.) By the way, we aren't going to pay the electric bill for two years. (Laughter.) And since you seem to be -- since you seem to be rendering justice in the dark, you don't seem to need your law library, either. (Laughter.)
The "Judge Biery" to whom Gingrich refers is Chief U.S. District Judge Fred Biery, a Texas native and 1994 appointee of President Bill Clinton. Judge Biery spent six years in the United States Army Reserve. He got his law degree from Southern Methodist University and his bachelor's degree from Texas Lutheran College. In early June, Judge Biery issued a ruling in Schultz v. Medina Valley Independent School District in which he blocked a school prayer at a Texas high school. Here is the link to Judge Biery's four-page ruling.
There was a great public clamor about it. Religious groups were furious. Gov. Rick Perry, who had not yet announced his own presidential campaign run, got involved. And, a few days later, Judge Biery's ruling was overturned by the 5th U.S. Circuit Court of Appeals. The graduation prayers went on as initially scheduled. The judicial system, in other words, worked precisely the way it is supposed to. But Judge Biery evidently now is condemned to some level of Hell, having his name bandied about loosely by Gingrich as the symbol of an "arrogant" judiciary.
Judging from the applause lines, Gingrich's anti-judge remarks went over big on Friday. Even Justice Anthony Kennedy, the Reagan conservative who now holds the Court's precious "swing" vote, took some heat. "It can't possibly be true," Gingrich told the crowd, "that the Founding Fathers wrote into the Constitution a very elaborate, complex process of amending the Constitution and said, however, that if the Supreme Court is split 4-to-4 between liberals and conservatives, and Justice Kennedy gets up in the morning, he becomes a one-person Constitutional Convention."
I am sure there are a hundreds reasons why Gingrich's latest big idea is a dangerous and terrible one. Let me share just two of the most obvious ones. First, it's unconstitutional under any reasonable interpretation of the document or its subsequent precedent. No federal judge is going to allow himself or herself to be treated in such a manner and no other federal judge is going to permit it to happen, either. A subpoena is just a piece of paper without a judge's endorsement of it. So which federal judge, do you think, is going to sign a paper that forces another to be the subject of a Congressional inquisition that patently violates separation of powers principals?
Evidently, Gingrich didn't hear the growl in Justice Antonin Scalia's voice last week when Scalia was asked a question about international law -- just one general question about a general question about international law! -- by a member of the Senate Judiciary Committee. Both Justice Scalia and Justice Stephen Breyer indeed treaded carefully around the boundary of the lines separating the two branches. And they were quick to point out to the senators when they thought the lawmakers had crossed a line. It's preposterous to think that the Supreme Court, even this supremely conservative court, would countenance bullying by Congress at the level contemplated by Gingrich.
Second, Gingrich better be careful of what he asks for. Congress gets to subpoena judges who go against the will of the majority? Sounds good. Let's start first with all those well-meaning Republican appointees on the federal bench who have voted over the past year to strike down the Patient Protection and Affordable Care Act? To paraphrase Gingrich, why should those judges be allowed to dictate to the American people something different from what our wise legislators have concluded about federal health care? Why should the "dictatorial" powers of those judges be used to trump the legislative mandates contained in the new law? Oh, wait, you mean only some judges get to be called to account?
I hope Schieffer invites Gingrich back next Sunday and invites Justice Antonin Scalia, too. I'd like to see and hear that exchange, wouldn't you? Talk about appointment television.