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 ...
Actually, congress doesn’t subpoena the executive. No President has ever been called to testify before congress. In fact, the constitution found this separation so important that it actually PROSCRIBES an event where the President actually does present information to Congress.
And no judge can haul a representative in front of the bench using a bench warrant, to find out what THEY were thinking when they passed a law.
And the cosntitution forbids the executive from using police powers to detain congressmen.
And there’s no rational purpose in trying to get the judges to “explain” themselves. The judges, as this article points out, already explain themselves in their ruling publications. All that this new power would do would be to allow representatives to ask questions and brow-beat judges into ruling more “correctly” — meaning however the majority currently in power wanted.
And if congress really is upset about a judge, they can impeach him. And it doesn’t take “2 out of 3” like Newt said — congress has the complete authority to remove any judge, and the President can do nothing. Congress also has the absolute authority to remove the President, without the judiciary having a say (the judiciary does “preside” over impeachment, but doesn’t rule).
The constitution has checks and balances. If congress can’t use them, we don’t need a presidential candidate proposing extra-constitutional harrassment authority that would be abused by liberals to destroy conservative judges.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Read the Constitution before calling something Un-Constitutional. Congress is mandated to pay the Judges and maintain the courts under the constitution.
While the Constitution mandates that justices be paid, it does not give the power to justices to determine how much and when, etc. they are compensated. This is a power given only to Congress. The response from the judiciary would be to simply refuse to hear cases or rule, which would make all federal laws unenforceable and thus render Congress impotent.
Thanks, I would never do that.
>>As I recall only the Supreme Court is specified in the Constitution and Congress was given authority to create and presumably remove all inferior Federal courts.
>>
>Learn that in Law School did you?
>
>Maybe next time you should consult the Constitution.
Here’s what the Constitution says:
Article I, Section. 8.
[...] To constitute Tribunals inferior to the supreme Court; [...]
Article III, Section. 1.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. [...]
What I find interesting is that Newt’s stance on this is extremely unpopular with the elitists but is very popular with the people.
And is constitutional.
I'm not sure Congress actually has the authority to arrest people who refuse a summons. On the other hand, it should certainly have the authority to subpoena a judge or executive employee with a notice that failure to appear will be regarded as a resignation. If an official opts to resign, Congress would cease to have authority over that person.
Well let's just talk about this for a second. Now, to issue a subpoena simply because you don't “like” or “agree” with his ruling is not an idea I like for sure. I haven't had time to read the whole white paper either, but I will.
One the other hand, if a judge steps into the legislature's territory and legislates from the bench, in violation of the very constitution he is supposed to be upholding, then are you saying there is no recourse for Congress to stop this infringement?
Now clearly, Congress is within their constitutional rights to eliminate court districts(do you agree), but that doesn't sound so great either.(Media portrayal of eliminating judicial districts just because you don't like their rulings doesn't sound any better than subpoena).
And if the district is to be eliminated, shouldn't the Congress do a little fact finding and perhaps subpoena or at least extend an invitation to testify and thus have a discussion with those who will be impacted? Should that include the Judges involved?
I am certain that the framers of the constitution did not intend us to live under an oligarchy, nor did they intend Congress to be helpless and to just accept intrusion into their duties by the Judiciary or the President. Yet all too often that is exactly what has happened, and Congress has simply bitched about it or in some cases aided and abetted.
Meanwhile, I have watched for the last 50 years as Judges have stripped away our rights and ordained rules that could have never passed Congress. I also think that the majority of the country is getting tired of living like some 30% of the country wants, which the Judges have been part of implementing.
It is time for Congress to take on the Judiciary, but they are so impotent they can't even pass a stikin’ budget (what's it been-3 years now?). Any how, what exactly should Congress do to stop legislation from the bench? That's what I want to know.
in such inferior Courts as the Congress may from time to time ordain and establish. [...]
_______________________________________________
If Congress establishes them I guess they must be permanent then.
Waste of time to read those stupid Federalist Papers, when you can just go to school and learn how to never take a position on anything unless it pays you to do so.
It's a crime to ignore a congressional summons called "Contempt of Congress"
I'd think any ruling not supported by the Constitution should require elucidation.
Claiming Newt is calling for "arresting" Judges for making rulings "we don't like" is complete BS.
It is not forbidden anywhere in the constitution. Congress is explicitly given the power to ordain and establish all inferior courts. No where is it forbidden to reorganize or eliminate inferior courts.
The constitution provides that Judges serve during good behavior. There is no definition of good behavior in the constitution. Legislating from the bench sounds like bad behavior to me.
Another interesting tidbit from my review of Article III section 2. The original jurisdiction of the Supreme Court is enumerated. The appellate jurisdiction of both law and fact is under the jurisdiction of Congress ie “with such Exceptions and under such Regulations as the Congress shall make.”
It's devestating to me how Congress fails to protect their power, and fails to protect the most innocent people of all, the unborn. When Roe v Wade was decided, I fully expected Congress to act somehow maybe even a Constitutional Amendment to define an unborn baby as a person at the very least.
State legislatures did rewrite their laws to preserve life, and Supremes struck them down. Apparently, all the US Congress had to do was pass a law that the life of the fetus trumps the privacy issue and/or that this issue is a State's right and remove the subject from appellate review by the Supreme Court.
It is clear to me now, as never before,that Congress has not been exerting their authority to check the judiciary at all.
If Congress has the authority to physically compel people to appear before it at any time for any reason, such a statute would be an exercise of its authority. A mere statute, however, could not confer upon Congress any authority which it did not already have.
In any case, I would suggest that whether or not Congress has the authority to compel people to testify, it should have the authority to regard the giving of testimony as an essential job requirement for federal employees.
Congress has the clear constitutional authority to impeach federal judges. Gingrich's rationale was to subpoena a judge to explain his rationale prior to initiating an impeachment hearing. The Subpoena is a courtesy to the judge.
Congress has the power to subpoena a judge the same as they can subpoena members of the executive. But if a judge wants to ignore a congressional subpoena, then they can answer to the impeachment trial.
If a judge who happens to e.g. in Texas decides that he'd rather stay in Texas and forfeit his job than travel to D.C., what authority would Congress have to do anything more than declare his job forfeit? If Congress has arbitrary power to subpoena people who are not employees of the federal government, what would prevent them from using such power arbitrarily and capriciously so to impose hardship upon people who do things Congress doesn't like?
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