I like this one. Public hearings on why a court/judge did or didn't follow the "intent" of the lawmakers when it ruled on a case. As a bonus we get to see what the lawmakers "intent" really was.
Posted on 12/20/2011 9:40:44 PM PST by Ernest_at_the_Beach
Given Newt Gingrich’s rather curious comments on the judicial branch of the federal government during last week’s GOP debate in Iowa, and the fact that he has doubled – if not tripled – down on them since then, two serious questions remain. While they draw raucous applause from conservative debate crowds, are these even remotely viable proposals and, perhaps more to the point, is he even serious?
As to the first matter, there’s more than ample evidence that these latest products rolling off the production line at the idea factory that is Newt Gingrich may have skipped over the Quality Control station checkpoint. Should federal judges not serve for life? Should they be subpoenaed to explain their less than satisfactory decisions to Congress? Can the president simply ignore their decisions if he/she finds them unacceptable? To get the full history of these suggestions – which are actually far from new – attorney Doug Mataconis provides an extensive tutorial. As usual, it’s fairly long with a lot of material to go over, but you’ll find the history of court cases and historical vignettes which provide the backdrop to where we stand today. But for a shorter summary, Gerald Shargel dots the i’s and crosses the t’s.
What Gingrich ignored last night, and what was only noted briefly by Ron Paul, is that under Article III of the Constitution, federal judges are appointed for life. Only personal misconduct can result in impeachment and removal. A judge may not be removed because of decisions with which Republicans disagree. Gingrich should be smart enough to know that subpoenaing judges is neither legal nor workable. But this historian also knows that the Army-McCarthy hearings made for good television.
Doug himself concludes with some of the weightier consequences.
In his position paper, Gingrich engages in a wholesale attack on the structure of American government as established in the Constitution, and as it has existed for the past two centuries, proposing to replace it with a system where majorities are given even more control over the levers of state while minorities are increasingly denied access to the one branch of government most likely to protect them from a rapacious and oppressive majority. It is an attack on the Constitution, on the Rule Of Law, and on individual liberty. The fact that it received so many cheers last night is very disturbing.
There’s more to it than that, though. One of the classic episodes from American history where this question arose early on was the 1832 SCOTUS decision in Worcester v. Georgia, where the high court held that individual states didn’t have the right to seize Native American lands. Andrew Jackson, already engaged in a process of effectively purging the indigenous tribes from Georgia and Florida was incensed beyond consolation. Jackson is recorded as responding by saying, “Justice Marshall has made his decision, now let him enforce it.”
It’s easy to write this off as a dusty trivia question from the early 19th century without pausing to consider just how terrifying that moment truly was. It wound up passing, but that period of executive revolt raised a question which has come up many times in our nation’s history during times of constitutional crisis. The Executive branch controls not only the military, but the civilian department responsible for law enforcement. What becomes of the courts if they can find no agent to enforce their decrees? Are they to pack up their black robes in hobo bindles and flee to Canada? At that point you may as well take down the tents, dim the lights and pack it in because the Great American Experiment has ended.
But none of this may wind up mattering very much in the case of Newt Gingrich, which brings us to the second question posed above. Is he really serious about this? To answer that one, I find myself reminded not of some historical figure from the early days of the nation, but the modern day master of bombast, Rush Limbaugh.
Some years ago, Ed Morrissey was discussing Rush with me and he provided a fairly lucid explanation for the man’s behavior. The vast majority of the time, he told me, Rush is pretty much just this guy who covers and comments on current events, politics and government news from a very conservative perspective. Sure, there’s the occasional story which enrages him and gets him shouting, but it’s nothing really out of line. But every once in a while he lets slip with something that gets the liberal blogosphere and the MSM setting their hair on fire. Depending on the comment, his critics will accuse him of being a racist, a sexist, a homophobe, or whatever the flavor of the week may be. But Rush always manages to somehow tiptoe the line so that it’s more of a dog whistle than an actual bark.
So does this mean that, deep down, Limbaugh is a racist or whatever? The answer is probably no, because what Rush is – first and foremost – is a showman and a businessman who knows that controversy is good, attracts more listeners and gets people talking about him. The same can be said for politicians trying to attract the high “ratings” of the voting public. As Shargel notes above, the Army-McCarthy hearings made for good television.
Still, as we find in a more recent update, Newt was back out on the trail today doing the Sunday morning shows and pitching the same ideas. And he manages to do it with a straight face.
Newt is hardly a stupid man, and he’s probably forgotten more American History than most of us will ever learn. He doubtless has not lost track of Article III. The more likely explanation is that this is something which was a designed play to create precisely this type of outraged conversation and earned media which keeps his name in the headlines without spending a dime of campaign money. And it doesn’t hurt that his most conservative primary voters and Tea Party enthusiasts, long frustrated with various decisions by the Supreme Court, eat it up with a spoon.
If Newt wins the nomination – and eventually the presidency – I expect this particular issue will be one that fades away down the memory hole as he becomes more busy with real world affairs. So maybe it was a crazy idea… crazy like a fox.
UPDATE: Karl adds his own thoughts on this subject in the Green Room.
The "Magic Negro" song comes to mind. That was all started by a black journalist at some paper, but was attributed to Rush. I agree with Newt on this issue and some judges / courts should be impeached. The 9th circus is a prime example.
Hot Air? They do “analysis light” ~ just surface manifestations.
Turns out, though, McCarthy was right... The Communists were everywhere, and now they are running the show.
I like this one. Public hearings on why a court/judge did or didn't follow the "intent" of the lawmakers when it ruled on a case. As a bonus we get to see what the lawmakers "intent" really was.
Well, I got lazy and didn't read the full article (perhaps I should!). But, I agree. We HAVE to get out of this ridiculous cycle of using the courts and activist judges to solve all of our problems . . . . . ESPECIALLY when liberals don't get what they want from Congress!!
During his confirmation hearing, Robert Bork raised the issue of activist judges "legislating" from the bench on issues that should be referred to the Congress or legislature to resolve. Bork was (and is!) dead on with that one and I hope this is the direction that Newt is going in. We CANNOT have a government that is true to its Constitution when so many judges (and legislators, for that matter) are working so actively to undermine the very foundations of our government.
Thank for bringing this to my attention! I will pull the article down and actually READ it! It sounds as though there is more going on than I originally thought with the first few sentences I read. Merry Christmas, ex!
Rush found an untapped audience, a huge segment of public opinion that had no outlet, no voice. He gave them their voice. It was they whom Newt also tapped into as be made his charge to take the House. We might poll the conservative member of the House and ask:Are you a Rush listener? I bet a significant no. owe something of their passion to listening to him.
I agree. I think that as it stands today, after over 20 years on the radio, 80% of conservative politicians can that God for sending Limbaugh to the radio station when he was a teen.
First, the legislature can impeach the judge (see Alcee Hastings). Unfortunately, Hastings ran for Congress and won a seat in the House of Representatives.
Second, Congress establishes judicial circuits. Congress can expand them or shrink their numbers or redraw their judicial boundaries. In effect, Congress can write them out of existence.
Third, Congress appropriates funds to run these circuits, including the USSC. Congress can increase or decrease (including zeroing-out funding) any time it wants to do so. Want to get a lawyer's attention very quickly? Cut off their funding and watch them go bat guano.
Fourth, the executive branch nominates justices to the various courts. Get a competent executive to field competent candidates and elect competent legislators to confirm them. Congress has the perfect right to compel (subpoena) judge candidates if they will not cooperate with the legislature's legitimate questions. This can be done but it requires a will and a spine. The Republican Party (aka Party of Stupid) doesn't have either. They punt the ball every time.
Rush would never get the numbers he has without being sincere - except of course when using parody and absurdity to illustrate or illuminate the absurd. (Remembering his 1996 show endorsing Bill Clinton for 3 hours. Remembering his show referring to the Clintons as President and Mrs. Nixon for 3 hours. Remembering his excessive respect for and agreement with callers propounding this silliest ideas.)
Unlike most politicians Gingrich does things he says he will do.
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