[Editor’s Note: I studied Constitutional Law from federal Judge Allen Sharp, I have also been instructed by Henry Abraham, the author of “Justices and Presidents”, which is the definitive text on the Justices of the Court. Newt is totally correct about this as Article III of the Constitution is clear on this issue. The UPDATE is below.]
Go to 4:50 in the video to see Newt’s position. An awesome speech by the way:
What you are about to read below a load of complete nonsense. What Newt is talking about is called Article III of the US Constitution. Congress has almost total power over the lower courts. Congress passes “Judicial Acts” for the purpose of regulating the lower courts and dealing with rogue circuits like the 9th. EVERY first year law student knows this. For a former Attorney General to talk like this is beyond astounding and is likely pure politics.
They go on as if the lower courts are all powerful and that the status-quo is fine. They were created by an Act of Congress so what? Congress cannot take another look at them? Judicial supremacy was opposed by the Founders.
Fox News:
EXCLUSIVE: Former Bush Attorneys General Call Gingrich Position on Courts ‘Dangerous’
Two former attorneys general under President George W. Bush have found a few things to like in Newt Gingrich’s position paper on reining in the authority of the federal courts, but other parts, they say, are downright disturbing.
Some of the ideas are “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle,” said former Attorney General Michael Mukasey.
In a 28-page position paper entitled, “Bringing the Courts Back Under the Constitution,” Gingrich argues that when the Supreme Court gets it wrong constitutionally, the president and Congress have the power to check the court, including, in some cases, the power to simply ignore a Supreme Court decision.
“Our Founding Fathers believed that the Supreme Court was the weakest branch and that the legislative and executive branches would have ample abilities to check a Supreme Court that exceeded its powers,” he argues.
Mukasey and Alberto Gonzales, in exclusive interviews with Fox News’ Megyn Kelly, said they are particularly alarmed by provisions such as allowing Congress to subpoena judges after controversial rulings to “explain their constitutional reasoning” to the politicians who passed the laws.
“The only basis by which Congress can subpoena people is to consider legislation. To subpoena judges to beat them up about their decisions has only — if they are going to say that has to do with legislation they might propose, that’s completely dishonest,” Mukasey said.
“I think we have a great government, a great country because it’s built upon the foundation of the rule of law. And one of the things that makes it great and the rule of law is protected by having a strong independent judiciary,” Gonzales said.
“And the notion of bringing judges before Congress like a schoolchild being brought before the principal to me is a little bit troubling. I believe that a strong and independent judiciary doesn’t mean that the judiciary is above scrutiny, that it is above criticism for the work that it does, but I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges.”
Mukasey has counseled Mitt Romney, Gingrich’s chief rival for the Republican presidential nomination, but said only once, and he would do the same for any GOP candidate. He and Gonzales said they were also not happy with the Gingrich call for the power to impeach judges or abolish judgeships following any ruling considered particularly outrageous.
They were additionally very skeptical of Gingrich’s suggestion that we should just “do away with” the Ninth Circuit because of some of the left-leaning decisions from that group of jurists.
UPDATE – Some Romney supporters are trying to spin this story into something it isn’t with a series of misleading accusations and objections.
Bogus Objection #1: Newt wants to micromanage the Judiciary!
Who said anything about “Micromanaging the judiciary” – I will tell you who – NO ONE HAS.
The 9th Circuit has not been micromanaged, on the contrary these created, invented courts who are invented at the pleasure of Congress and the American people have been trying to micromanage our lives.
Judge Hamilton even tried to order the Speaker of the State House and President of the State Senate to ban Jesus from the prayer opening each session.
Newt is not saying that the judiciary should be micromanaged and he has never said anything even remotely close to that. His position paper and the video of his speech which I linked above, make it clear that the 9th and a few other judges have gotten so out of control and so radicalized that they are trying to micromanage our culture like a far left secularist oligarchy.
Creating a straw man is no way to win the point.
Bogus Objection #2: Newt wants exclusive executive control over the judiciary!
Newt is not talking about exclusive executive control. Presidents lobbied for and got those Judicial Acts passed by Congress; just like when people said “Reagan cut taxes”, it was Congress who passed that new tax legislation.
Bogus Objection #3: We should take a Burkean approach in saying are we really so hubristic as to dismantle that system and hope to create something better in its place?
This is elitist euphemistic sophistry for “we need to preserve the status-quo” and it is also pure nonsense. We dismantle some government systems and recreate them all the time, it is called Federalism and the 50 states do it on a regular basis with various legal and policy experiments.
Bogus Objection #4: Chief Justice Marshall established judicial supremacy over constitutional interpretation.
I know all about “The Great Chief Justice” John Marshall, however Marshall cannot remove Article III, nor did he intend to.
Marshall did not establish “judicial supremacy over constitutional interpretation”, he asserted that the Supreme Court had the power of “Judicial Review”; to declare certain acts of Congress and certain enforcement actions of the Executive under it’s jurisdiction to be unconstitutional. There is a significant difference between the two.
In no way was Marshall trying to assert Judicial supremacy and in no way was he trying to elevate the power of the lower courts that exist at the pleasure of Congress to a position over them in such a way to take separation of powers and toss it out the window.
Quite frankly, I am astonished at the near total lack of understanding many so called lawyers have about “Separation of Powers”. All it takes is one good read of the Federalist Papers. So either our law schools are dropping the ball or the self bias of lawyers and law professors has them believing in this supremacy nonsense.
The Judiciary was intended to be the weaker of the three branches of government. It is the duty of all branches, not the sole purview of the court, to uphold and defend the constitution, this is why the Constitution demands an oath of office to defend it for ALL of the three branches.
The way our government is supposed to work is that when one branch gets out of line, the two others can gang up on it and strip it of power when needed. This is basic 8th grade civics stuff and I am seeing political enthusiasts and pros along with some attorneys responding to this very notion as if we had told them that Martians had made a crop circle in their back yard.
Is this simply the rank intellectual dishonesty in the form of political maneuvering or has our education system failed to this degree?
[Editor’s Note – Tossing all modesty aside for just a moment. My Constitutional Law class was as intense as one would find in any law school.
Question #4 on my ConLaw final exam was:
The Great Chief Justice dies in 1801. Thomas Jefferson appoints the head of the Virginia Supreme Court to be the new Chief Justice of the United States. Explain how this likely changes every Supreme Court ruling from 1801 to 1821 (essay format start writing).
I got an A. This writer has found few attorney’s who can beat him in a game of ConLaw quiz bowl.]
Political Arena 