A few weeks ago, the idea factory that is Newt Gingrich generated its worst idea in 68 years.
Following in the footsteps of the court-packing scheme proposed by President Franklin Delano Roosevelt in 1937, the former Speaker set forward an outrageous set of “judicial reform” proposals. These plans have more in common with Roosevelt’s grand plan to subordinate the centuries old Anglo-American legal tradition of an independent judiciary to the whims of a power hungry class of political operatives in the legislative and executive branches than they do with serious minded Constitutionally based reform.
His campaign posted a 50 page document, Bringing the Courts Back Under the Constitution, outlining his proposals on his website. His purpose, he says, is 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.”
Criticisms have come from the left and the right. Erwin Chemerinksy, Dean of the UC Irvine Law School, argues that Gingrich suggestion that we consider impeaching federal judges because of the content of their decisions is unconstitutional:
“Article II, Section 4 of the Constitution allows impeachment only for “treason, bribery, and high crimes and misdemeanors.” It does not allow, and never has been used, to remove judges because their opinions are unpopular. Life tenure for federal judges exists precisely so that they will decide cases based on their best understanding of the Constitution and the law, not to please politicians and voters.”
Mark Fitzgibbons, at American Thinker, argues Gingrich courts the demise of the Citizen United ruling. He points to this clause in Gingrich’s proposal:
“Acting together, the legislative and executive branches can therefore limit the jurisdiction of the federal courts through ordinary legislation. This legislation would remove the power of the courts to hear certain types of cases that the executive and legislative branches believe that the federal judiciary has simply gotten wrong in the past.”
Fitzgibbons properly notes that with such power, an Obama-Reid-Pelosi axis “would have acted to limit the courts’ authority to hear First Amendment cases involving elections, such as Citizens United.” Gingrich’s proposal, Fitzgibbons concludes, “is both unconstitutional and unwise.”
An independent judiciary has been the cornerstone of Anglo-American jurisprudence since 1610, when Sir Edward Coke, Chief Justice of the Court of Common Pleas (roughly equivalent to our modern Supreme Court), told King James I to keep his hands out of decisions made in his court. James wanted Coke to decide a case in the crown’s favor, but Coke emphatically told the Stuart tyrant to stay out of his business:
“The King in his own person cannot adjudge any case, either criminal…or betwixt party and party…this ought to be determined and adjudged in some Court of Justice, according to the Law and Custom of England.”
Coke paid the price for his defiance—serving time in the Tower of London after losing his judicial appointment—but the Stuart tyrant was unable to effectively defeat Coke’s notion that an independent judiciary was a critical element in the balance of powers in seventeenth century England.
The most serious challenge to an independent judiciary in the United States came with Roosevelt’s court packing attempts. Angry with the Supreme Court that had struck down much of his first New Deal, Roosevelt petulantly set about to correct the errors of the court. After his landslide victory in 1936, he followed his March, 1937 inauguration with a “fireside chat” with phrasing that eerily predicted the language in Gingrich’s recent proposal:
“In the last four years, the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside…During the past half-century the balance of power between the three great branches of the federal government has been tipped out of balance by the courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance.”
Fortunately for the country, FDR’s proposal to add six new justices to the Court, died in a skeptical Congress a few months later.
Now, more than seven decades later, Gingrich has proposed his own version of FDR’s court packing plan. This shouldn’t surprise us. After all, as recently as 2005, Gingrich called FDR “the greatest president of the twentieth century.”
Like FDR, however, Gingrich’s ideas represent a dangerous attack on the Constitution, one which reflects his lack of commitment to not only Constitutional principles, but also the core values of the Tea Party movement. Most of us, committed as we are to Constitutionally limited government, recoil at the thought of making federal judges scrape and bow before self important legislators and Presidential candidates.
While Gingrich is correct to point out that seven decades of an activist judiciary has dramatically and incorrectly expanded concepts of the federal government’s proper Constitutional role, his medicine will do more harm to the patient than the illness it is designed to treat. The long term solution to address the imbalance caused by this judicial activism is to elect Constitutional minded Presidents who will appoint “originalists” to the court and conservative Senators with strong backbones who will fight for their confirmation.
Michael Patrick Leahy is the editor of the Voices of the Tea Party e-book series and co-founder of Top Conservatives on Twitter and the Nationwide Tea Party Coalition. His new book, Covenant of Liberty: The Ideological Origins of the Tea Party Movement, will be published by Broadside Books in spring, 2012. He can be reached on Twitter at @michaelpleahy .