Newt Gingrich and His 'Rock, Paper, Scissors' Constitution

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The candidate is selling a wrongheaded plan for legislators to bully the judiciary

newt face the nation.png "[T]he surest curb on judicial activism, for those who fear it, is executive and legislative activism in defense of constitutional liberties. The courts possess only so much power as the other branches relinquish."
                                                                           -U.S. District Judge Frank Johnson, 1979

The closer Newt Gingrich gets to the Republican nomination for president, the more unhinged become his attacks on the independence of the federal judiciary. 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."

Now, leading most polls, but evidently still needing his own radical pitch, Gingrich has doubled down on his crackpottery. On Sunday morning, he told Bob Schieffer of CBS News' Face The Nation that the Capitol police, or federal marshals, could and should come and arrest those judges if they refuse to respond in person to a subpoena seeking to publicly shame them for making unpopular decisions. He also delivered this shuddering version of the Constitution, an unfamiliar Rock-Paper-Scissors version, in which the promise of separation of powers is akin to a playground game:

Here's the key -- it's always two out of three. If the president and the congress say the court is wrong, in the end the court would lose. If the congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the congress loses. The founding fathers designed the constitution very specifically in a Montesquieu spirit of the laws to have a balance of power not to have a  dictatorship by any one of the three branches.

Poof, just like that, the leading candidate's "key" to nowhere. What Gingrich really is saying, under the guise of blasting "elitist" judges, is that the Bill of Rights would no longer be used to protect individual rights because the judges who help ensure those (often unpopular) rights can be outvoted by the White House and the Congress. In President Gingrich's world, evidently, the Supreme Court would not have the final say on the law. The majority, as represented by the popularly elected branches, would have the ultimate vote. Not in every case, Gingrich says, just in some. Does that reassure you the way he meant it to?

Here's the Face The Nation video from this morning in which Gingrich says "... there's no reason the American people need to tolerate a federal judge who who is that out of sync with an entire culture...."

There are two possibilities for this level of jeremiad. Either Gingrich actually believes this nonsense, in which case he would be a constitutionally dangerous president, or he doesn't, in which case he's committing constitutional heresy just to win a few primary votes. Either way, it is conduct unbecoming a president. Close your eyes for a second and imagine if a Democratic candidate for the White House suggested that the judiciary be neutered by the White House and Congress; if a "liberal" running for president suggested that individual liberties and minority rights would hereafter be defined by Washington. Wouldn't Gingrich be first in line with his pitchfork and torch?

You don't need to be a lawyer, politician or scholar to hear the contradictions in Gingrich's latest argument. He's against "elitist" judges but not against the lobbyist-infused Washington insiders who would overrule them. He rails on the 9th Circuit for its Pledge of Allegiance ruling as though it were the law of the land (it is not, as your school-age child is likely to tell you). Similarly, he picks on a federal trial in judge in Texas whose school prayer ruling was almost immediately overturned on appeal. Small beer, indeed, for the monumental remedies Gingrich seeks; it's like destroying the whole house to get rid of a few nagging flies.

"I think part of the advantage I have is that I'm not a lawyer,' Gingrich told Schieffer. "And so as a historian, I look at the context of the judiciary and the constitution in terms of American history." The fact that Gingrich is not a lawyer helps explain why he sounds so ignorant about the law. The fact that he is an historian helps explain why he's hanging much of his theory on some hoary precedent involving Thomas Jefferson, the slave owner, who eliminated 18 of 35 judges back in his day. Never mind the constitutional precedent and practice of the intervening 200 years, Gingrich's argument goes, it happened once so it should happen again. 

I cited Judge Johnson above not just because his quote is a timely reminder to demagogues like Gingrich that they are often responsible for the very "activism" they decry. Judge Johnson, as a federal trial judge in Alabama from 1955-1979, essentially devoted his entire judicial life to helping to ensure that black citizens would gain the basic civil rights that governors and state legislators and the Congress and the White House would not give them. Imagine how many times Judge Johnson would have been called onto the carpet on Capitol Hill under a Gingrich Administration. On which side of that history would you want to be?

The last word goes to Fein, the proud Reaganite. On Sunday afternoon, he called Gingrich's ideas "more pernicious to liberty than President Franklin Roosevelt's ill-conceived and rebuked court-packing plan." More colloquially, Fein told me in October when Gingrich first went off the rails on this issue: "This is crazy. It would bring us back to the pre-Magna Carta days... The idea that these legislators, who haven't read the Constitution or their own statutes, are going to lecture federal judges about the law is ridiculous. It's juvenile. It's high school stuff." Indeed—and thus perfect for a bumper-sticker: Your Constitution: Rock, Paper, Scissors, Newt.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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