What does George will adduce in support of of his charge?
President Gingrich would attempt to abolish some courts and impeach judges whose decisions annoy him.
Actually Gingrich as president would have little to do with this congressional function and nothing whatever to do with the impeachment of judges. So his proposal has nothing to do with annoying President Gingrich but it has everything to do with annoying the democratic will of the majority of the American people as expressed by their elected representatives. In fact Gingrich proposes constitutionally provided remedies which so unaccountably excite Mr. Will, such as exercising the constitutionally mandated power to set the jurisdiction of courts and to impeach judges. One might note that there is no constitutional language limiting the scope of impeachment of judges as there is with presidents.
George will describes Gingrich's next "assault on the rule of law:"
….He favors compelling judges to appear before Congress to justify decisions “out of sync” with majorities,
To my knowledge Gingrich did not advocate putting federal judges in stocks but merely in a hearing room chair to give testimony which the Congress might use in its constitutionally mandated role of determining proper jurisdiction for the courts. If Congress is empowered to expand or contract that jurisdiction, surely it is empowered to conduct hearings to inform the decision. Why should judges be exempt from the ordinary rule of law which so recommends itself to Mr. Will, who continues:
and he would sic police or marshals on judges who resist congressional coercion.
I believe this has to do with the power of congressional subpoena which is a analogous to the power of judicial subpoena in which a judge might order a federal marshal to bring in a Congressman and render evidence desired by the court. In fact, a judge has the power to incarcerate people for what it believes to be contumacious acts in the face of the court, a power under our rule of law not enjoyed by Congress and not suggested by Gingrich.
These "sinister" suggestions by Gingrich inspired George Will darkly to conclude:
Gingrich’s unsurprising descent into sinister radicalism — intimidation of courts — is redundant evidence that he is not merely the least conservative candidate, he is thoroughly anti-conservative
If one reviews the history of constitutional law he might come to conclusions which support Gingrich and undermine George Will's rather overblown language.
The first thing to consider is the Constitution nowhere empowers the Supreme Court or any other federal court to determine the constitutionality of law. This is a power which the Supreme Court has asserted for itself beginning with a case called Marbury vs. Madison and it asserted a principle in theory only because it did not have the power to enforce it against the executive. In fact, Gingrich has history right and not George Will. In the events that led up to the vs. Madison decision, the outgoing Federalists appointed and approved judges whom they expected would undermine the incoming administration of the Jeffersonians. The Jeffersonians simply exercised powers contained in the Constitution and eliminated 18th of those 34 judges. Gingrich got it right. The political branch exercised its constitutional authority respecting the judicial branch.
George Will cites Roosevelt's court packing scheme illegitimately as a historical illustration of the deleterious effect of changing the structure of the court, that is, to achieve control of court decisions through the political process. But the attempt was rejected! The point is not that the attempt was unconstitutional, the point is that it failed because it was not supported by the democratic will. And that is Gingrich's point, decisions of the court which result in elimination of jurisdiction or elimination of courts, cannot be done without the popular will. The history of the court packing scheme vindicates Gingrich and undermines Will.
That is why it is necessary to note that we are not talking about decisions which "annoy" Gingrich but decisions which arouse the righteous wrath of the American people and bestir their elected representatives. To deny this provision is to deny democracy as well as the Constitution.
Rather than the means that the Constitution itself provides to exert the will of the people against the tyrannical will of a berobed elite, George Will wants to strip the Constitution of its provisions and confine democracy:
He [Gingrich] does not, however, trust democratic political processes to produce, over time, presidents who will nominate, and Senate majorities that will confirm, judges whose views he approves.
We might reply that it is George will who does not "trust [the] democratic political processes to produce" impeachments and adjustments of jurisdiction of which Mr. Will would approve. It seems that George Will is rather selective about which democracy he likes and which democracy he does not.
In other words, George Will says there is no other remedy except to continue to do in the future what has consistently failed in the past in the hope that we will get a better result next time. We all know that Einstein had something to say about that.
The only process which George Will would vouchsafe us in preserving democracy is a process that brought us a new term of art: "borking" and "electronic lynching." It has produced disastrous crony appointments of justices, like Justice Goldberg. It has given us stealth appointments like Justice Souter. It is given us liars like Elena Kagan who has been appointed precisely to sustain Obamacare and who has willfully declined recuse herself. It has given us judges who have ordained out of nowhere the murder of 40 million babies and rationalized the bloodbath because they had visions of" shadows and penumbras." It has given us a court system from top to bottom not dedicated to the rule of law and the principled understanding of the original intent of the Constitution but to the imposition of social engineering and the waging of politics by other means.
George Will insists that we remain naked before our enemies.
When Gingrich points to the Constitution and says, "here are your provisions with which to defend your democracy against judicial tyranny," George Will accuses Gingrich of assaulting the very Constitution Gingrich upholds.
George will has stood history, logic, and the Constitution, all three, on their heads.
