“King Newt”: Why Not Just Call For Martial Law And Be Done With It?
There has been no shortage of wacky ideas from the Republican candidates, but Newt Gingrich’s attacks on the judiciary are truly far out on the lunatic fringe of right-wing politics.
At first he confined himself to merely railing against the independence of the judiciary, without which due process simply cannot exist. Recently, he’s started talking about arresting judges who issue rulings he doesn’t like. Intimidating judges used to be a criminal offense. Now it’s a campaign plank and a Sunday morning sound bite.
On the CBS News program “Face the Nation” yesterday, Mr. Gingrich said Congress should compel judges to testify about any decision that annoys the majority party on Capitol Hill. He said he would send U.S. Marshals to arrest them if they did not willingly come to testify. (Marshals, for what it’s worth, are charged with protecting federal judges, who get hundreds of death threats a year.) Mr. Gingrich is not the first politician to say shockingly inappropriate things about federal judges. In 2005, Tom DeLay, who was the Republican House Majority Leader, threatened retribution against the judges who ruled against his wishes in the Terri Schiavo case.
And that same year, John Cornyn, a Texas Republican, attributed episodes of courthouse violence to distress over judges who make “political decisions yet are unaccountable to the public.” This was shortly after a career criminal tried to shoot his way out of an Atlanta trial, killing the judge in the process. And after a deranged man murdered a Chicago judge’s mother and husband because the judge had dismissed his lawsuit.
But Mr. Gingrich takes the attack on the judiciary farther than any other national figure I’ve heard, at least since the Jim Crow days. He’s actually gone so far as to suggest Congress impeach uncooperative judges. Michael Mukasey, the former attorney general who served under George W. Bush, called Mr. Gingrich proposals “dangerous, ridiculous, totally irresponsible, outrageous, off the wall.”
Dangerous and irresponsible is right, for many reasons—but I’ll just give you two. One is that Mr. Gingrich’s proposal opens the door to Congress firing and hiring judges each time power changes hands between the political parties. Judges have lifetime terms to protect them from exactly this kind of pressure. Second, it would effectively eliminate the role of the Supreme Court as the ultimate arbiter of constitutionality.
Mr. Gingrich has referred several times to Thomas Jefferson’s elimination of federal judgeships at the turn of the 19th century. He presents that as an uncontroversial move, when in fact it was part of a highly partisan attempt to rescind his predecessor’s judicial appointments. He’s also fond of saying that the Supreme Court’s power of judicial review, established during Jefferson’s presidency with the seminal case Marbury v. Madison, has been “grossly overstated.”
That statement alone should turnoff primary voters. Marbury v. Madison was a founding decision for a fledgling democracy that had shed its blood to get away from a law that was subject to the will and whim of a political figure—the King of England.
By: Andrew Rosenthal, The New York Times, December 19,2011
Newt Gingrich And His “Rock, Paper, Scissors” Constitution
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 unconstitutionalargument 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….” http://www.cbsnews.com/video/watch/?id=7392048n
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.
By: Andrew Cohen, The Atlantic, December 18, 2011
“A Can Of Worms”: Historian Newt And The Courts
On Fox News this morning, Steve Doocy, reflecting on Newt Gingrich’s remarks in last night’s debate, said the disgraced former House Speaker “was brilliant” when “talking about out-of-control judges and the courts.”
I saw the same comments. “Brilliant” wasn’t the adjective that came to mind.
Megyn Kelly noted in her question to Gingrich that he’s proposed congressional subpoenas for judges who issue rulings that Republicans don’t like, as well as judicial impeachments and the prospect of eliminating courts the right finds offensive. Kelly reminded Gingrich that two conservative former attorneys general have characterized his approach as “dangerous,” “outrageous,” and “totally irresponsible.” He responded:
“[T]he courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people. […]
“I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.”
Gingrich added he’s “prepared to take on the judiciary” unless federal courts started issuing rulings that he agreed with. He went on to say he understands these issues “better than lawyers,” because he’s “a historian.”
Let’s note a few relevant angles here. First, it’s time to stop characterizing positions such as these as “conservative.” Gingrich doesn’t want to conserve anything; he’s eyeing a radical revolution of the separation of powers and the American branches of government, stripping the judiciary of its power as an independent branch.
Second, Gingrich is a lousy historian. Real scholars tend to consider Gingrich’s crusade against the courts as a crackpot agenda.
And third, it was odd to see Ron Paul, of all people stand up last night as a voice of reason.
“Well, the Congress can get rid of these courts. If a judge misbehaves and is unethical and gets into trouble, the proper procedure is impeachment. But to subpoena judges before the Congress, I’d really question that. And if you get too careless about abolishing courts, that could open up a can of worms. Because there could be retaliation. So it should be a more serious — yes we get very frustrated with this, but the whole thing is, if you just say, ‘Well we’re going to — OK there are 10 courts, let’s get rid of three this year because they ruled a way we didn’t like.’
“That to me is, I think opening up a can of worms for us and it would lead to trouble. But I really, really question this idea that the Congress could subpoena judges and bring them before us. That’s a real affront to the separation of the powers.”
Yes, Ron Paul was the sensible one on the stage last night when it comes the courts.
Great.
By: Steve Benen, Contributing Writer, Washington Monthly Political Animal, December 16, 2011
“This Year Belongs To The Republicans”: I Hope They Kept The Receipt.
The Wall Street Journal had an interesting report the other day on the congressional fight over extending the payroll tax cut through 2012. Democrats were quoted as saying they feel like they have the advantage in this debate — they’re the ones fighting for a middle-class tax break — but one Republican said something in response that stood out for me.
Terry Holt, a former House GOP aide who is close to Mr. Boehner, said any perceived political advantage is superficial, compared to the way Democrats have lost ground on spending issues over the past year.
“Democrats are trying to put the best face on a very bad year for them,” Mr. Holt said. “This year belongs to the Republicans.” [emphasis added]
Holt apparently looks back at the nearly-completed year and believes it’s been a good one.
He’s not alone. National Journal published the results of its latest Congressional Insiders Poll yesterday, and one of this week’s questions was, “What grade (A+ through F) would you give the first year of the 112th Congress?” Republicans were fairly impressed — a 39% plurality gave this Congress so far a B, and 28% gave it a C. While 66% of Democrats gave it an F, only 6% of Republicans felt the same way.
To my mind, this Congress is proving to be one of the worst — most destructive, most negligent, most dysfunctional — in the history of the country, but for Republicans, there’s a sense that 2011 wasn’t that bad. Indeed, a month ago, none other than House Speaker John Boehner (R-Ohio) defended his institution, saying it’s his job to make Congress work, “and it is working.”
I wonder what the weather is like in the GOP’s reality.
Look, some of the questions are subjective, but if Republicans can look back at the last calendar year and feel a sense of pride, the obvious question is what exactly they hoped to get out of 2011.
The year has been so miserable, it’s tough to imagine what the GOP finds satisfying. Republicans’ approval rating dropped to levels unseen since Watergate; Congress’ approval rating dropped to a level unseen since the dawn of modern polling. Republicans held the full faith and credit of the United States hostage, on purpose, and caused the first-ever downgrade of the nation’s debt. Neither party has been able to pass any of its major legislative priorities, and thanks to Republican intransigence, compromise between the parties has become a laughable pipedream.
At the same time, the Republican presidential nominating race has become farcical, with random cranks, clowns, and charlatans taking turns as ostensible frontrunners, hoping to serve as the main primary challenger to a core-free, flip-flopping coward who lies with discomforting ease. The more Americans see of the GOP field, the more they recoil.
This isn’t to say that the year has been awful for everyone. The domestic economy and job creation have steadily improved; the United States has scored some major counter-terrorism and foreign policy victories; the American auto industry is starting to flourish after nearly collapsing in 2009; and we saw the formal end of misguided policies like “Don’t Ask, Don’t Tell.”
But the year’s best news invariably resulted from developments that Congress couldn’t screw up and Republicans had nothing to do with.
“This year belongs to the Republicans”? Unless nihilism was the goal — and perhaps it was — I hope the GOP kept the receipt.
By: Steve Benen, Contributing Writer, Washington Monthly Political Animal, December 10, 2011
Where Oh Where Are Gingrich’s Enemies?
For many members of Congress, it must seem truly strange to observe the current Newt Gingrich boomlet. This is, after all, the same Gingrich who was run out of Washington 13 years ago after his party suffered a rare midterm loss that left Republicans barely hanging on to control of the House. Gingrich not only stepped aside as speaker but resigned his congressional seat. He left the chamber with his tail between his legs and did not exactly endear himself to his fellow members on the way out, calling the other congressional Republicans “hateful” and “cannibals” who blackmailed him out of office during a conference call announcing his departure. With his bombastic style, Gingrich was well set for a life of public speaking and book career far away from any other elected office.
That was the mind-set of the political class when Gingrich entered the presidential field earlier this year (especially after his entire staff fled his campaign over the summer), and yet now Gingrich has—at least for the time being—replaced Mitt Romney as the front-runner for 2012. One would expect those representatives who revolted on Gingrich—many of whom are still in Congress—to rush to the press to divert Republican voters from making the same mistake they made in 1994 when they elevated Gingrich to speaker.
Instead, they’re keeping their thoughts largely to themselves, according to Politico. The group of Republicans who ousted Gingrich in ’98 are hesitant to disparage the new Tea Party favorite, and some have even switched sides and are supporting Gingrich. Former House Majority Leader Dick Armey corralled support to replace Gingrich back in the day but demurred from offering comment for Politico‘s article. That’s a strikingly different tone than earlier in the year. “It’s typical of Newt to be whimsical,” Armey told Politico in May. “We always say: Newt always has so many great ideas. Well yeah, but then he shifts between them at such a rate it’s pretty hard to track it let alone keep up with it.” Or take former Representative Bob Livingston, the Louisiana congressman whose challenge to then-Speaker Gingrich incited that harsh resignation conference call. Now Livingston has endorsed Gingrich and is raising money for his former foe.
Not all of Gingrich’s former colleagues have held back. On Sunday, Oklahoma Senator Tom Coburn—a member of the House during Gingrich’s reign—ripped into the presidential candidate on Fox News. “I’m not inclined to be a supporter of Newt Gingrich,” Coburn said,
“having served under him for four years and experienced personally his leadership…I just found his leadership lacking and I’m not going to go into greater detail in that. And I think if you were poll the gang—the group of people that came in Congress in 1994, in which he did a wonderful job in organizing that, he’s brilliant, he has a lot of positives. But I still—it would be—I will have difficulty supporting him as president of the United States.”
Coburn isn’t alone in that view; if it becomes clear that Gingrich’s surge is not the short-lived bubble of Herman Cain or Michele Bachmann, his former colleagues will likely start bringing those attacks out in droves to block his accession back to the top of the party.
By: Patrick Caldwell, The American Prospect, December 6, 2011
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