Posted on 12/19/2011 10:54:45 AM PST by indianrightwinger
There Is No Power and No Reason to Subpoena Federal Judges
December 19, 2011 12:21 P.M. By Andrew C. McCarthy I was surprised that the usually excellent Megyn Kelly’s debate question to Newt Gingrich about his proposal for reining in the judiciary intimated that former Bush administration attorneys general Michael Mukasey and Alberto Gonzales had panned the proposal as “dangerous, ridiculous, totally irresponseible, outrageous,” etc. To be sure, that’s what they said about some aspects of Gingrich’s proposal; but not the overall plan. In fact, as Megyn’s report states, Judge Mukasey said of Gingrich’s plan, “There’s a lot in there that’s good. Take a red pen to the parts that are bad, stick with the parts that are good, and run on it.”
For now, though, I just want to address a bad part that is getting most of the attention — as Kate’s post from yesterday indicates. That’s the business about issuing congressional subpoenas to federal judges to coerce them into explaining themselves before lawmakers. As many commentators have suggested, this proposal would violate separation-of-powers principles. The judiciary is a peer of the political branches. It would be no more appropriate for Congress to subpoena a federal judge (or that judge’s clerks) about the reasoning of one of the judge’s rulings than it would be for Congress to subpoena the president (or his top advisors) about a controversial decision that was within the president’s constitutional authority, or for a judge or the Justice Department to issue a subpoena to a member of Congress (or the lawmaker’s staff) to question that member about the deliberations over some legislative act that arguably went beyond Congress’s enumerated powers.
Put aside the constitutional problem, though. What I find most difficult to understand is the pointlessness —
(Excerpt) Read more at nationalreview.com ...
Who is “Brutus”?
” Judge Crater.”
“The Missingest Man in New York”.
I'm not a lawyer, but is seems to me the executive branch has a nearly limitless check on the judiciary. It's called a pardon. I suspect all of the states governors have the same power in their jurisdictions as well.
As far as I know, the chief executive can overturn any conviction, any time, for whatever reason.
Perhaps this only applies to criminal cases, but the argument that the judicial branch does not have any checks from the executive always ignores the pardon.
I agree. What is the point giving the POTUS or the judges more power that they can abuse you with and they will. We are headed in the wrong direction. More power to the feds no matter who it is is not the answer. Getting rid of the louses is.
Congress can subpoena anybody. And Newt is only talking about arresting a judge that failed to heed a Congressional summons.
Rediscovering the power to impeach judges would reign in a lot of the craziness we have seen out of the judicial branch.
If he is not ignorant of the law and history, as you say, then he is lying.
Congress is responsible for writing the rules of the lower courts. If they write a law that lets them subpoena, arrest, and impeach a judge for simply ruling to our dislikes, it’s their prerogative.
“issuing congressional subpoenas to federal judges to coerce them into explaining themselves before lawmakers”
I think this is kind of silly. Judges already explain themselves. It’s called an “opinion” written by the court. They may be wrong but they do clearly explain their reasoning (or lack of it) as to why they are wrong.
Fixing that flaw requires amending the constitution. Something Perry is advocating by proposing term limits for Judges. Not Newt.
Show me in the Constitution where a Judge can not be subpoenaed? Something other than some wise@ss attorney opinion, and Megyn Kelly is not the ultimate authority.
No one knows for sure. Most scholars believe it was Robert Yates. He was without a doubt the most effective and prescient antifederalist writer. The Federalist Papers are a joke compared to Brutus.
Who is claiming that the “accused” can’t be called to testify during an impeachment trial? Step 1 is to first impeach the said Judge.
So, is Newt proposing we impeach first any judge that makes a “grotesquely unamerican” ruling according to his definition alone?
Or, did he not propose hauling these judges in front of Congress before impeachment (in spite of not impeaching).
Only the master of History, savior of the Republic can clarify.
Learn that in Law School did you?
Maybe next time you should consult the Constitution.
I am with you on this. With as much Constitution and US Statute ignoring going on by Obama, my opinion is do it fast, do it quietly and punish strongly before the MSM gets wind of it - in fact, impose a Congressional Media Blackout until after sentencing has been imposed. Then move on to the next a$$hole judge in line.
Surely they can't subpoena a Ball Player, noooo.
There are many misperceptions about the constitution, one of the greatest being the idea that members of the judiciary are given lifetime appointments and can be removed only upon impeachment and conviction for high crimes or misdemeanors. The plain language of Article III, Section 1 specifies that their term of office is limited to a period of “Good Behavior”, not “Lifetime”. This period of “Good Behavior” is a much lower threshold for impeachment than the “High Crimes and Misdemeanors” established for members of the Executive Branch who have a fixed term of office. As the branch of government holding exclusive power over impeachment, Congress can determine what level of bad behavior is impeachable or indeed what constitutes bad behavior in a judge. How they go about reaching this determination is also up to their collective judgment. Members of the House of Representatives face the voters every two years and the public has the opportunity to determine if they have engaged in bad behavior themselves. The further requirement that two thirds of the Senate members present concur for conviction is ample protection from political motivation.
Never said he "can't be subpeonaed." I said there is "no basis" to subpeona a judge who makes a single 'bad call'. We all make unpopular decisions, especially if we alone have heard all the facts. However, if you have a judge who makes 'unpopular' decisions, after hearing the facts, time and time again; and a little research into the basis of how/why he made these decisions is 'suspect' - he should be impeached. But, everyone is entitled to a 'mistake'; lest we impeach every judge who makes a decision we may not 'like'. The judge is to be impartial, and conduct his job in accordance with the Constitution. When he ceases to conduct himself according to the oaths of office, he should and must be removed.
Re-reading this, you were not implying that you had or could Google my real name. My bad...
Yet it is the lack of political will that has kept Roe v. Wade alive all these years.
It's not so much that legislatures have the power to overturn a Supreme Court case, but they do have the power to keep hammering and hammering at it until the Court gives up or at least gives ground.
For example, Roe was based on a several "facts" about viability that we know today are not even remotely true. Congress, after hearings and so on, could make congressional findings of fact that completely undercut Roe's rationale. Then pass a law based on those findings of fact. Then new cases could be brought and brought again and again, if need be. If Congress, through the laws it passed, consistently demonstrated that it was the will of the people to regulate abortion, at some point the Supreme Court would begin to defer to the legislative branch.
The Supreme Court at one point said the death penalty was unconstitutional. But states kept passing death penalty statutes and sending them up to SCOTUS for review. If they got struck down for this or that, they rewrote the law and litigated again. IOW, the states demonstrated that the people felt very strongly that capital punishment should be available. Eventually the Supreme Court said, okay, we were wrong: it's not unconstitutional per se. Today we do have the death penalty.
But there are very few instances where there is a broad and sustained political will to push to overturn a Supreme Court ruling.
To some extent, bad judges are simply the wages of political sin.
OK, you have had yours, now move on. :)
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