Gingrich's Dangerous Plan to Subpoena Federal Judges, Part II

The question has been settled for more than 200 years: Hauling a judge before Congress to defend an unpopular decision is unconstitutional.

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Newt Gingrich's latest terrible idea -- to have Congress subpoena federal judges who make unpopular decisions -- has spawned earnest questions about how subpoenas work between and among the branches of government. Why can't Congress use its subpoena power to force a sitting judge to come to Capitol Hill to answer questions about a particular opinion? I thought the answer was self-evident when I wrote about this on Sunday. It wasn't. So let me try again. Here's the simplest explanation I can offer.

First, Congress can subpoena anyone it wants. But just because it can issue a subpoena, that doesn't necessarily mean that it can enforce a subpoena. Lawmakers issue subpoenas all the time -- and all the time the subjects of those subpoenas show up at committee hearings. This is because those subjects don't have any legal justification -- or a legitimate political argument -- for seeking to quash the congressional subpoenas that have been issued to them. The law, for reasons that should be self-evident, doesn't make it easier for people to weasel out of their obligations to come forward and testify.

But the congressional power to subpoena -- like virtually all other powers of government -- is not absolute. Congress cannot subpoena the Secretary of Defense, for example, and require him to divulge classified information in an open hearing. If lawmakers sought to do so, the Pentagon would either simply ignore the subpoena or, more likely, go to a federal courthouse and ask a judge to formally quash the subpoena. The congressional subpoena power, like all subpoena powers, is subservient to the Constitution, which is interpreted, in the final analysis, by the federal judiciary and not by Congress.

The reason we don't see many constitutional showdowns over congressional subpoenas is because lawmakers, quite reasonably, have exercised the power judiciously. When they seek the input of members of the executive branch, or of the judiciary, they frequently invite those members to Capitol Hill. When they do subpoena members of an administration, typically over some piece of legislation, there is a legitimate nexus between the required testimony and the business of Congress.

The subjects of these subpoenas show up because, as a political matter, they cannot afford to blow off the request and because, as a legal matter, they know the courts won't protect them. This is happening right now, as early as today, with Attorney General Eric Holder, who evidently is being subpoenaed in connection with the Gunwalker investigation. The Justice Department will likely comply in a material way with the request by House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) and the Attorney General will soon find himself on Capitol Hill answering questions and producing documents.

None of those niceties apply, however, to the Gingrich plan to threaten judges. The reason you don't see federal judges hauled before Congress to answer for their rulings, and the reason you haven't seen such a spectacle, is because such use of the congressional subpoena power is patently unconstitutional. It is not within Congress' power to require a judge to be held accountable in that fashion. And if Congress sought to enact a statute making judges accountable in this fashion it is clear that the legislation would be dead-on-arrival in the federal courts. The federal judiciary, in other words, is protected from this sort of intimidation by the Constitution and its separation of powers principles.

So Congress may invite members of the judiciary to Capitol Hill -- the Senate Judiciary Committee did so last week -- to discuss legal matters in general terms. There is always the bookkeeping function that has to take place between those branches. And Congress could, I suppose, subpoena as a "fact witness" a sitting federal judge whose personal experiences had some bearing on some pending piece of legislation. But subpoenaing a judge for writing an unpopular decision is beyond the bounds of legislative authority -- and the matter has been settled for more than 200 years.

Could Congress hold such a federal judge in "contempt" for refusing to comply with a subpoena? I suppose. Congress engages all the time in all sorts of meaningless gestures. But so what if it did? Any attempt by Congress to enforce the contempt sanction against a sitting judge would be rejected by the courts. So, fortunately, you will never see the Sergeant-At-Arms for the House of Representatives or the Senate come to your local courthouse to try to haul away your local federal judge. There are some constitutional crises you should worry about. This is not one of them.

Don't just take my word for it. Here's what Laurence Tribe, the constitutional law professor at Harvard Law School, thinks of Gingrich's idea:

The idea of compelling federal judges to come before Congress to answer for decisions that might be unpopular is one of the craziest and most obviously unconstitutional things the former Speaker has ever proposed. It represents a frontal assault on the independence of the federal judiciary, which is a bulwark of a constitutional system that has served us well as a nation ever since Marbury v. Madison.

Judges explain themselves in their published opinions. When their explanations fail to convince, we're all free to criticize -- and to push back through appropriate lawmaking channels. In cases of statutory interpretation, Congress can push back by enacting a corrective statute, as it often does. In cases of constitutional interpretation, the nation can push back by amending the Constitution, a difficult but far from impossible process. And politics plays its proper role at the point when federal judges are nominated by the President and either confirmed or rejected by the Senate.

Grilling and scolding those judges when the decisions they render fail to please those in power on Capitol Hill is worse than a dumb idea; it's a threat to our entire framework of checks and balances.  

Don't just take Tribe's word for it. I passed along Gingrich's remarks to Bruce Fein, the respected conservative attorney who worked in the Justice Department during the Reagan Administration. Here's what Fein thinks of Gingrich's idea:

An independent judiciary with life tenure and authority to hold the legislature and executive accountable to the Constitution was its revolutionary crown jewel.  Both Chief Justice William H. Rehnquist and Associate Justice Ruth Bader Ginsburg have echoed that accolade from opposite wings of the High Court. James Madison, father of the Constitution, lavished praise on the federal judiciary as a bulwark against legislative or executive tyranny. One of the indictments against King George III in the Declaration of Independence was making judges "dependent on his will alone." In the landmark case of Marbury v. Madison, Chief Justice John Marshall explained that judicial review was the difference between a government of laws and a government of men. The 1805 acquittal by the United States Senate of Associate Justice Samuel Chase accused by the House of Representatives of impeachable offenses because of judicial rulings favorable to the Federalist Party established the time-honored principle that federal judges are not accountable to any other branch for their judicial opinions. 

Gingrich unwittingly is proposing to overthrow the Constitution that he would be pledged to uphold and defend if elected to the presidency. Attempting to subvert the Constitution, however, it an impeachable high crime and misdemeanor justifying removal of the President from office. The Constitution's entire purpose is to arrest the powers of the political branches irrespective of popular sentiments or ideas. To believe that Congress or the President would condemn their own acts as unconstitutional encroaches on the domain of delusion. Equally preposterous is the prospect of Members of Congress interrogating or instructing federal judges about statutory or constitutional interpretation when they are generally clueless about the meaning of laws or the Constitution.The spectacle would be like a dog walking on its hind legs. You are surprised not that it is done ineptly, but that it is attempted at all.

Don't just take Fein's word for it. Here's what a sitting federal judge, U.S. District Judge John L. Kane of Colorado, told me Monday about Gingrich's idea:

In the Federalist No. 78 Alexander Hamilton wrote: "For I agree, that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers . . . this complete independence of the courts of justice is peculiarly essential in a limited constitution.'" That statement is as true now as it was when written over 200 years ago by one of the best and brightest of our Founding Fathers. Apparently Mr. Gingrich seeks to replace the rule of law with what, a rule of intimidation? Does he not know that judges always explain their opinions by making findings of fact and conclusions of law? If a judge errs in doing so, there is a court of appeals waiting to correct the error, and if a court of appeals errs, there is always the Supreme Court as the final arbiter. The process, unlike that suggested by Mr. Gingrich, is based on reason and cherished as a fundamental element of our national heritage.

What is truly scary about all of this isn't that Gingrich is roaming around the country trying to peddle this nonsense. What's scary is that so many people seem willing to buy it. Many of these people fancy themselves "patriots" and believe they are working to restore what Gingrich calls the proper Constitutional "balance" between the branches. But that argument is a perpetual loser. It lost when the Declaration of Independence was drafted. It lost when the Constitution and its Article III were ratified. It lost in the Chase case 206 years ago and it has lost every year since. Our independent judiciary may from time to time be a nuisance. But from time to time it's also all that stands between the rule of law and demagogues like Gingrich.