Separation of Powers is sooooooo 18th Century
Good or bad, this is what you get with Newt Gingrich:
GOP presidential frontrunner Newt Gingrich said Congress has the power to dispatch the Capitol Police or U.S. Marshals to apprehend a federal judge who renders a decision lawmakers broadly oppose.
Gingrich says if there is broad opposition to a court decision, Congress should subpoena the ruling judge to defend his or her action in a hearing room.
When asked if Congress could enforce the subpoena by sending the Capitol Police to arrest a judge, Gingrich assented.
“If you had to,” Gingrich said. “Or you’d instruct the Justice Department to send the U.S. Marshall.”
Gingrich cites the 9th Circuit’s decision that reciting the Pledge of Allegiance is unconstitutional as a prime example of why such a reform would be necessary. It’s easy to use examples like this of judicial indiscretion in order to justify such drastic action. Yet what of judicial interventions where the Court and not the legislature is acting in accord with the Constitution? I can think of several examples where conservatives cheered – rightfully – when the Supreme Court overturned an act of Congress. In US v Lopez, US v. Morrison, and Citizens United v. FEC, just to name a few cases, the Supreme Court acted on the side of the Constitution as opposed to Congress, and did so presumably against the majority will. As we speak the Supreme Court is set to hear arguments about the individual mandate and other aspects of Obamacare, and once again conservatives (again rightfully) will be hoping for the Court to rule against the democratically elected branches.
No one is more aware than me of how out of control the judiciary has been, particularly since the age of FDR. What Gingrich and other populist-conservatives fail to appreciate is that the judiciary’s wholesale assault against the Constitution is but a symptom of what plagues this Nation. After all, how did we wind up with a judiciary willing to disregard the Constitution? They didn’t just appear out of magic. Years of progressive education instilled these judges with an attitude that the Constitution is a “living, breathing” document that ought to bend to the whims of the age. More importantly, it was democratically elected leaders like FDR who put these men and women on the courts.
Furthermore, it is odd to suggest that one of the ways to stop the politicization of the judiciary is to further politicize the judiciary. Will judges act as independent arbiters of the Constitution if they know they are going to be hauled before the legislature for making the wrong call?
Long story short, I don’t think Gingrich is entirely wrong to highlight the problems of the judiciary. It absolutely must be a theme of this and any federal campaign. But Gingrich is missing the forest for the trees in singling out the judiciary when it’s an entire political philosophy – and, for that matter, political party – that is the problem.
Another thing that strikes me about this statement is how unrealistic it is. Even if Gingrich becomes president and has resounding Republican majorities in both Houses there is virtually no chance that anything like this will happen. This is mere bombast. Now, it is perhaps an exercise in rhetorical exaggeration used to highlight an important issue. But ultimately this reveals a problem that goes beyond Newt, and it is the absurdity of our presidential campaign system. Each candidate feels compelled to offer pie in the sky proposals in an effort to appeal to some constituency. Even more troubling is that the underlying attitude is that the president is some kind of emperor as opposed to the chief executive of a constitutional republic. Even though this particular proposal is likely going nowhere, it is a sad fact that the presidency has become a hyped up institution that has grown well beyond the powers outlined in the Constitution. So the ultimate irony is that while Newt is proposing a radical plan under the guise of restoring balance to the Constitution, he is only furthering the imbalance of the Constitution and the respective powers of each branch of government. And while the Star Wars prequels may have been otherwise useless, at least they taught us a valuable lesson about trying to “restore balance” to anything.