Gingrich Proposal: Subpoena, Arrest, Impeach Federal Judges

Gingrich Position Paper Calls For Impeaching Judges When They Get Out Of Line. In a position paper on Newt Gingrich's campaign website, Gingrich explained his plan to "[r]estore the proper role of the judicial branch by using the clearly delineated Constitutional powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution." This plan called for Congress and the President to work together to impeach and remove federal judges who they feel “refused to adhere to the legislative limitations on jurisdiction.” [Newt.org, 10/7/11]

Gingrich Position Paper Suggests That Congress Should Abolish Federal Courts When It Disagrees With Their Decisions. From the position paper on Gingrich's website:

A good place to start correcting federal judges is in Texas. This past June, a federal district court judge in West Texas issued an extraordinary judicial order that threatened local school officials with going to jail if they failed to censor the content of a student's speech at a high school graduation ceremony. Such oppressive and tyrannical behavior from a sitting federal judge is not constitutional and has no place in America. Congress would be well within its power to impeach and remove this federal judge from office, or failing that, work with the President to abolish his judgeship.

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The Constitution vests Congress with the power to create and abolish all federal courts, with the sole exception of the Supreme Court. Congress even has the power, as Congressman Steve King of Iowa frequently notes, to “reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle.” During the administration of Thomas Jefferson, the legislative and executive branches worked together to abolish over half of all federal judgeships(18 of 35). While abolishing judgeships and lower federal courts is a blunt tool and one whose use is warranted only in the most extreme of circumstances, those who care about the rule of law can be relied upon to consider whatever constitutionally permissibly tools they can find to fight federal judges and courts exceeding their powers. It is one of many possibilities to check and balance the judiciary. Other constitutional options, including impeachment, are better suited in most circumstances to check and balance the judiciary. [Newt.org, 10/7/11]

Gingrich Has Proposed That Congress “Subpoena Federal Judges” When They Did Not Like Their Decisions. From an article in the ABA Journal:

On national security issues, Gingrich said at a Values Voters Summit on Friday, he saw no reason to obey some U.S. Supreme Court rulings, report CBS News and the Atlantic. “I would instruct the national security officials in a Gingrich administration to ignore the recent decisions of the Supreme Court on issues of national security,” Gingrich said.

Gingrich also told the summit and Face the Nation on Sunday that Congress could subpoena federal judges and ask them to explain their decisions. Gingrich thought the subpoenas could have “a sobering effect” on judges' assessment of their powers.

He also had another proposal for chastising judges. The Atlantic has Gingrich's quote: “Congress has the power to limit the appeals, as I mentioned earlier. Congress can cut budgets. Congress can say: 'All right, in the future, the 9th Circuit can meet, but it will have no clerks. By the way, we aren't going to pay the electric bill for two years. And since you seem to be--since you seem to be rendering justice in the dark, you don't seem to need your law library, either.' ” [ABA Journal, 10/12/11]

• Gingrich Subsequently Said If Judges Did Not Comply With Subpoenas They Could Be Arrested. [CBS News, 12/18/11]

Limbaugh And Fox's Doocy Have Touted Gingrich's Proposals

Doocy: Gingrich Was “Historical,” “Accurate,” And “Brilliant” When “Talking About Out-Of-Control Judges And The Courts.” During the December 16 edition of Fox News' Fox & Friends, co-host Steve Doocy said:

DOOCY: And when it comes to Newt Gingrich, while he was tamer, I'll tell you, when he was talking about out-of-control judges and the courts, he was historical, he was accurate, he was brilliant. The crowd there in Sioux City really ate it up. [Fox News, Fox & Friends, 12/16/11]

Limbaugh Hyped Gingrich's Plan To Impeach Judges, Abolish Courts. During the December 16 edition of The Rush Limbaugh Show, Rush Limbaugh lauded Gingrich's defense of his proposals for judges during the December 15 Fox News debate. He classified Gingrich's statements as one of “Newt's Best Debate Moments”:

LIMBAUGH: Another Newt moment was this. Megyn Kelly: She handled the legal questions last night. “Speaker Gingrich, you have proposed a plan to subpoena judges to testify before Congress about controversial decisions that they make. In certain cases you advocate impeaching judges or abolishing the courts altogether. Two conservative former attorneys general have criticized your plan saying it alters the checks and balances of the three branches of government and they used words like 'dangerous, outrageous, totally irresponsible.' Are they wrong?”

GINGRICH (audio clip): The courts have become grotesquely dictatorial, far too powerful -- and I think, frankly, arrogant in their misreading of the American people. There's an entire paper at Newt.org. I've been working on this project since 2002 when the Ninth Circuit court said that “one nation under God” is unconstitutional in the Pledge of Allegiance, and I decided: If you had judges who are so radically anti-American that they thought “one nation under God” was wrong, they shouldn't be on the court.

LIMBAUGH: That also brought people out of their seats last night. There were a lot of moments like that, and it was an uplifting debate throughout the whole time. The attitude, mood of the whole night was productive and good. You know, people don't understand the courts, the separation of powers in Congress. Congress can do anything they want with their -- Congress can totally redistrict the United -- who set up the court system, do you think? Do you think that Oliver Wendell Holmes sat down one day and said, “You know what? This is going be the Ninth Circuit, and over here is going be the DC Circuit. Over here is going be the Fourth Circuit.”

That is not how it happened. Congress did it. If Congress wanted to split the Ninth Circus -- make it smaller, make fewer people subject to it -- they could. If they had the votes, if the president goes along with it. It's -- the Founding Fathers really did not want an imperial judiciary. They did not want what we've got. They did not want judges and bureaucrats writing law. The people are not represented when that starts happening. There is no representative republic. The Founding Fathers had no intention that the final word on law or anything else be nine people wearing robes. That was not the intent. It's where we have evolved -- in fact, not just with legal issues. How many political issues now end up at the court and whatever the Supreme Court verdict is is the final word and authority on a political issue like abortion?

Sorry, that was not the intent. Judges can be impeached. Now, it is a bit radical to bring 'em in and start making them explain their decisions. It's tempting. Some, but I -- that -- well, Alcee Hastings. You can impeach them. Then they run for Congress after that. But there is a way of dealing with this. Most people, particularly people who are under 50, peripheral knowledge of the court system and the Constitution have grown up believing that what happens when a judge bangs a gavel is it. That's it. There's nowhere else you can go. Once you have gone to the last court that'll hear your case, that's it. That was never intended, particularly when it comes to legal issues. But with the left, politicizing all the judgeships as they can and putting unelectable people on courts, that's where it all started transforming. [Premiere Radio Networks, The Rush Limbaugh Show, 12/16/11; RushLimbaugh.com, 12/16/11]

But Legal Experts Call Gingrich's Plan A Terrible Idea

Group Aimed At Keeping The Judiciary Fair And Impartial: “Gingrich's Proposal ... Clashes Violently With The Founders' Intentions.” From a report on Republican presidential candidates' plans for the courts by the Justice at Stake campaign, an organization dedicated to keeping “state and federal courts fair and impartial”:

Gingrich's proposal to eliminate judgeships for political reasons also clashes violently with the Founders' intentions. In August 1787, the Constitutional Convention considered a plan to allow Congress to oust judges for reasons other than misbehavior in office. The proposal was rejected by seven states, and favored by only one. Participants in the convention included Hamilton, James Madison, George Washington and Benjamin Franklin. [Justice at Stake campaign, 10/24/11]

Law Professor Raskin: Gingrich's Proposal Says That “Racist Governors ... Were Right In Thinking That [Brown v. Board of Education] Was Nothing More Than A Suggestion.” From a Huffington Post article by law professor and Democratic Maryland state Sen. Jamin Raskin:

The campaign paper on the judiciary that Gingrich boasted of last week is a scary protracted critique of the Supreme Court's 9-0 decision in Cooper v. Aaron (1958). This was a critical desegregation case from Arkansas reaffirming Brown v. Board of Education (1954) and the Court's power under Marbury v. Madison (1803) to declare what the law is for the nation. In what must be seen as a shameless and shameful bid for attention in the Southern states, Gingrich is now effectively saying that racist Governors like Orval Faubus and George Wallace were right in thinking that Brown's historic ruling was nothing more than a suggestion. He is attacking the decision that struck down, once and for all, the doctrines of “interposition” and “nullification” under which racists have rallied since before the Civil War.

When Gingrich was asked last week about the Bush administration Attorneys General attacking his judicial positions, he said he would ask them “first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? Eighteen out of 35 were abolished.” The following conversation followed:

KELLY: Something that was highly criticized.

GINGRICH: Not by anybody in power in 1802.

Well, Newt, first of all, the repeal of the Judiciary Act in 1802 got rid of 16 judgeships, not 18, and, second, it was enormously controversial. For example, the Washington Federalist wrote: “The fatal bill is passed. Our Constitution is no more.” The New York Post described this non-controversial bill as “the death wound of our glorious Constitution.” Third, had he been around then, Gingrich would have certainly been on the other side wailing about attacks on the judges because all of the plutocrats and reactionaries rallied around the courts at that point. [Huffington Post, 12/19/11]

Even Conservatives Have Labeled Gingrich's Plan “Dangerous” And “Unconstitutional”

Michael Mukasey Says Gingrich's Plan For Judiciary Is “Outrageous,” “Dishonest,” “Ridiculous,” “Irresponsible,” And “Dangerous.” Former attorney general under President George W. Bush, Michael Mukasey, told Fox News' Megyn Kelly on America Live that Gingrich's plan is “off-the-wall” and would “reduce the entire judicial system to a spectacle.” From the show:

MEGYN KELLY: Now let's talk about his idea. He wants to, among other things, subpoena judges who issue decisions that he doesn't like.

MICHAEL MUKASEY: For judicial oversight hearings, as he calls them.

KELLY: What -- how does that strike you?

MUKASEY: Outrageous

Kelly: How so?

MUKASEY: Because there's no basis. The only basis on which Congress can subpoena people is to consider legislation. To subpoeana judges so as to beat them up about their decisions has only a -- if they're going to say that has to do with legislation that they might propose, that's completely dishonest.

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KELLY: But what about the most controversial courts and Gingrich's plan to eliminate them? He wants to see the Ninth Circuit Court of Appeals entirely abolished. Your thoughts on that?

MUKASEY: Ridiculous. The fact is that the Constitution empowers the Supreme Court [sic: Congress] to establish lower federal courts. Presumably, it can undo lower federal courts. But to say that you're going to undo an entire court simply because you don't like some of their decisions when there are thousands of cases before that court is totally irresponsible.

KELLY: But you know, a lot of people don't like, in particular, the Ninth Circuit Court of Appeals. They think it's issued some crazy rulings, it issued, as Newt Gingrich has pointed out many times, the opinion striking down “under God” in the pledge, which was later reversed by the Supreme Court, but a lot of people think “yeah, I don't like that Ninth Circuit, let's get rid of it” -- to those viewers who are feeling that way, explain why you think that's outrageous and dangerous.

MUKASEY: It's outrageous because it essentially does away with the notion that when courts decide cases, the proper way to have them reviewed is to go to a higher court. It's dangerous because even from the standpoint of the people who put it forward, because you have no guarantee that you have a permanent majority. The minority now can be the majority tomorrow and can do the same thing to the courts that they don't like.

[...]

MUKASEY: It would reduce the entire judicial system to a spectacle. [Fox News, America Live, 12/15/11]

Alberto Gonzales Says Gingrich's Judicial Plan Is “Troubling” And He “Would Not Support” Gingrich's Efforts. Former attorney general under President George W. Bush, Alberto Gonzales, told Megyn Kelly that Gingrich's plan is “troubling” because having “a strong and independent Judiciary” is key to protecting the rule of law that makes our country great. From the show:

ALBERTO GONZALES: I think that we have a great government, a great country because it's built upon a foundation of the rule of law. And one of the things that makes it great and the fact -- the rule of law is protected is by having a strong and independent judiciary. And the notion or the specter of bringing judges before the Congress like a school child being brought before the principal, to me, is a little bit troubling. I believe a strong and independent judiciary doesn't mean that the judiciary is above scrutiny, that it's 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. [Fox News, America Live, 12/15/11]

National Review Online's Whelan Calls Gingrich's Proposal “Awful.” In a series of five blog posts on “Gingrich's Awful Proposal to Abolish Judgeships,” Ed Whelan and Matthew Franck say Gingrich's proposal is “constitutionally unsound and politically foolish.” From Whelan's first post in the series:

In last night's debate among Republican presidential candidates, Newt Gingrich defended his proposal to oust bad judges from office by statutorily abolishing the judicial offices they occupy. In a series of posts, Matt Franck and I will explain why we believe that this particular proposal of Gingrich's is constitutionally unsound and politically foolish. (Matt and I may have somewhat different thinking on the underlying issues, so the views expressed by one of us should not necessarily be imputed to the other.) [National Review Online, 12/16/11]

National Review Online's Franck Says Gingrich's Plan Constitutes “Cheating On The Constitution's Rules.” From a post by Franck:

But Gingrich's proposal doesn't match its supposed precedent. He doesn't simply want to restore a status quo ante (for motives pure or partisan) by abolishing a court we don't need. He apparently wants to abolish it and then recreate it in some fashion, with new vacancies. That's cheating on the Constitution's rules for the removal of judges one doesn't like. If the problem is the judge (not the court), then the Constitution provides for impeachment. That's difficult, both procedurally and in terms of the standards to be applied to justify removal. But it's difficult for a reason. I have often said that judicial independence is something we could stand to have a lot less of. But there are right ways and wrong ways to bring activist judges to heel. This is a very badly wrong way. [National Review Online, 12/16/11]

Bush-Appointed Former Federal Judge Says “The Constitution Is Pretty Clear That Neither Side Can Eliminate Judges Because They Disagree With Their Decisions.” From a Washington Post article quoting Michael W. McConnell, who was appointed by President George W. Bush to be a judge on the U.S. Court of Appeals for the 10th Circuit and resigned to become a law professor:

Michael W. McConnell, director of the Constitutional Law Center at Stanford University and a former federal appeals judge appointed by Bush, also observed that conservative audiences “should not be cheering” and “are misled” if they believe Gingrich's proposal is in their interest at a time when Republicans are looking to the Supreme Court to declare President Obama's health-care law unconstitutional.

“You would think that this would be a time when they would be defending the independence of the judiciary, not attacking it,” he said. “You can't have it both ways. It can't be that when conservative Republicans object to the courts, they have the right to replace judges, and when liberal Democrats disapprove of the courts, they don't. And the constitution is pretty clear that neither side can eliminate judges because they disagree with their decisions.” [The Washington Post, 12/17/11]