Mu-ah, ha, ha! I will arrest the judges who do not please me!"
Ok, maybe not an angel. But I am sure that Ronald Reagan is rolling over in his grave.
This one’s for you, Marco.
Today’s witness to the lack of conservatism in Newt Gingrich is George Will who, frankly, says things better than I do, including when he calls Newt the “anti-conservative”:
When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when, discussing Bosnia and Washington, D.C., street violence, he said, “People like me are what stand between us and Auschwitz” [Atlanta Journal-Constitution, Jan. 16, 1994]. What primarily stands between us and misrule, however, is the Constitution, buttressed by an independent judiciary.
Which is exactly why Newt wants to take a shotgun to the judiciary and start telling it what to do.
But enough from me. Let’s go back to George:
But Gingrich’s hunger for distinction has surely been slaked by his full-throated attack on such a judiciary. He is the first presidential candidate to propose a thorough assault on the rule of law. That is the meaning of his vow to break courts to the saddle of politicians, particularly to members of Congress, who rarely even read the laws they pass.
Gingrich’s most lurid evidence that courts are “grotesquely dictatorial” is a Texas judge’s aggressive decision concerning religious observances at high school functions, a decision a higher court promptly (and dictatorially?) overturned. Gingrich’s epiphany about judicial tyranny occurred in 2002, when a circuit court ruled unconstitutional the Pledge of Allegiance phrase declaring America a nation “under God.” Gingrich likened this to the 1857 Dred Scott decision that led to 625,000 Civil War dead. The Supreme Court unanimously overturned the circuit court’s “under God” nonsense.
So, Gingrich is happy? Not exactly. He warns that calling the Supreme Court supreme amounts to embracing “oligarchy.”
He says that the Founders considered the judiciary the “weakest” branch. Not exactly. Alexander Hamilton called the judiciary the “least dangerous” branch (Federalist 78) because, since it wields neither the sword nor the purse, its power resides solely in persuasive “judgment.” That, however, is not weakness but strength based on the public’s respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.
Two points to Will, zero to Gingrich.
But why is the Supreme Court, and the judiciary in general, not completely beholden to democracy? Why is it, in essence an anti-democratic aspect of our government?
Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich’s campaign against courts repudiates contemporary conservatism’s core commitment to limited government.
Logically, Gingrich should regret the dictatorial Supreme Court decisions that have stymied congressional majorities by overturning portions of the McCain-Feingold campaign finance legislation and other restrictions on political speech.
Logic, however, is a flimsy leash for a mind as protean as Gingrich’s, which applauds those decisions — and the Kelo decision. InKelo, the court eschewed dictatorship and deferred to the New London, Conn., City Council majority that imposed a stunning abuse of eminent domain. Conservatives were appalled; Gingrich, inexplicably but conveniently, says he is, too.
Gingrich radiates impatience with impediments to allowing majorities to sweep aside judicial determinations displeasing to those majorities. He does not, however, trust democratic political processes to produce, over time, presidents who will nominate, and Senate majorities that will confirm, judges whose views he approves.
As one friend said of Gingrich, if you think you know him now, just wait 10 minutes–you’ll find someone different, someone not limited by the bounds logic places on the rest of us.
BUT WAIT! There’s more George Will on Gingrich’s attack on the judiciary.
Although not a historian, Gingrich plays one on television, where he recently cited Franklin Roosevelt(and Jefferson, Jackson and Lincoln) as “just like” him in being “prepared to take on the judiciary.” Roosevelt, infuriated by Supreme Court decisions declaring various progressive policies incompatible with the Constitution’s architecture of limited government, tried to “pack” the court by enlarging it and attempted to purge from Congress some Democrats who opposed him. Voters, who generally respect the court much more than other government institutions, reelected those Democrats and so thoroughly rebuked FDR’s overreaching that Congress lacked a liberal legislating majority for a generation.To teach courts the virtue of modesty, President Gingrich would attempt to abolish some courts and impeach judges whose decisions annoy him — decisions he says he might ignore while urging Congress to do likewise. He favors compelling judges to appear before Congress to justify decisions “out of sync” with majorities, and he would sic police or marshals on judges who resist congressional coercion. Never mind that judges always explain themselves in written opinions, concurrences and dissents.
Again, with the logic thing. We just aren’t as well read, intelligent, forward-thinking, or sophisticated as Newt Gingrich. Neither ‘frankly’ or ‘fundamentally’ speaking, at least.
Gingrich’s unsurprising descent into sinister radicalism — intimidation of courts — is redundant evidence that he is not merely the least conservative candidate, he is thoroughly anti-conservative. He disdains the central conservative virtue, prudence, and exemplifies progressivism’s defining attribute — impatience with impediments to the political branches’ wielding of untrammeled power. He exalts the will of the majority of the moment, at least as he, tribune of the vox populi, interprets it.
Which is why, in my estimation, Gingrich would be a dangerous turn for our country, a leader more akin to Julius Caesar and the Emperors of ancient Rome than the Democratic-Republicans of Thomas Jefferson’s vintage. Ilya Somin accurately notes that
[…] Gingrich conveniently ignores the fact that there are already many constraints on judicial power. Judges are nominated by presidents and confirmed by the Senate, which makes it difficult to push through nominees who deviate greatly from the political mainstream. Once appointed, they cannot easily enforce decisions in the face of strong opposition from public opinion and/or the other branches of government. Congress can impose additional restraints by deciding which courts have jurisdiction over what issues.
Historically, federal courts have erred at least as much by failing to strike down unconstitutional laws and policies as by overruling laws that they should have upheld. Many of the most notorious Supreme Court decisions — Plessy v. Ferguson, Korematsu, Buck v. Bell, Kelo v. City of New London (which, as Will notes, Gingrich has harshly criticized), fall into the former category.
Though he’s slightly less well known than George Will, Matthias is no less wise, in his succinct analysis:
[blackbirdpie url=”http://twitter.com/#!/politicalmath/status/149878497182097408″]
Be wise, Iowa and New Hampshire: end this Georgian’s time on the national stage. Send him back to consulting Freddie and Fannie Mae for his million dollar plus fees. It’ll be better for all of us.
[Washington Post][h/t Volokh Conspiracy]
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Good piece.
I’ll admit I was really surprised at the venom with which he went after the judiciary . . . I didn’t think he (or any significant candidate for the Presidency) would go as far as he did. It’s one thing to talk about amending the Constitution to bind “activist” judges. It’s a whole other order of magnitude to kick them out of office for daring to cross majorities.
As Somin notes there are a lot of institutional and structural constraints on the judiciary that limit its ability to cross democratic majorities on a regular basis. Gingrich’s statements show a near total disregard for this carefully balanced structure, which is all the more alarming given how flighty and spur of the moment his ideas are. You get the distinct sense that Gingrich is more than willing to throw down significant parts of the constitutional structure to pursue his latest craze without regard (or maybe even forethought) for the potential consequences.
Of course, maybe the anti-judiciary bit is just the latest craze that’s already ceased to amuse him…
Bingo. Especially your “throw-away” line. I think he goes through ideas, things that he thinks are smart, or maybe that he thinks can capture a headline, pander to the base in a new way, or just distinguish him…and never mind the real results.
Yeah. I think it’s the latest craze that’s already ceased to amuse him, though I wonder if the hubbub will force him to stick to his guns just a little more than otherwise.