This post is not about politics. It’s about much more.
The Republican Presidential debates have generated many surprising applause lines, but Newt Gingrich delivered this one on December 15 and it should scare all freedom-loving Americans. So should the crowd reaction.
“[T]he courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people,” Gingrich proclaimed in the final debate before the Iowa caucuses. “I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.”
[“Testified in front of sitting Supreme Court justices at Georgetown Law School”? Maybe he means “giving testimony” in his newly-found religious sense.]
Anyway, Gingrich — the man who racked up a $500,000 Tiffany’s tab, but decries “elites” — then proceeded to explain exactly how he’d accomplish a “rebalance”: abolish courts that disagreed with his views; subpoena sitting judges for Congressional appearances; ignore Supreme Court decisions that he didn’t like.
For a candidate who fancies himself a historian, ironies abound. For someone who is given to rhetorical flourishes while comparing himself to Winston Churchill and analogizing his adversary’s policies to Nazism, the remarks are astonishing. They’d be funny, too, if they weren’t so frightening.
Stalwart conservatives, including Ann Coulter, Bill O’Reilly, and former Bush administration Attorneys General, Alberto Gonzalez and Michael Mukasey, have roundly condemned Gingrich’s assault on the federal judiciary. So did the National Review.
Lest you think that his Iowa remarks were impromptu outbursts, Newt’s October 7, 2011 White Paper, “Bringing the Courts Back under the Constitution,” lays it all out. (Gingrich brags about not being a lawyer; unfortunately for Vince Haley, a 1992 University of Virginia Law School graduate, the White Paper lists him as its senior editor.)
This post considers just one of Newt’s ideas: subpoenaing judges before Congressional committees to explain their reasons for decisions that he doesn’t like. His White Paper describes it this way:
“Judicial Accountability Hearings
Congress can establish procedures for relevant Congressional committees to express their displeasure with certain judicial decisions by holding hearing [sic] and requiring federal judges come [sic] before them to explain their constitutional reasoning in certain decision [sic] and to hear a proper Congressional Constitutional interpretation.”
Problematic grammar aside, the stated rationale is disingenuous. In decisions that matter, federal judges routinely explain their reasoning in written opinions. The losing party may disagree, but the process is transparent. If there’s an appeal, at least three more judges review the case; they usually explain themselves, too. A few reach the Supreme Court, where yet more judicial elucidation occurs.
Unless the purpose is to pursue judicial impeachment — the constitutional remedy for misconduct — anyone who seeks to command a sitting judge’s appearance before Congress has a single goal: winning through intimidation. That takes me to Newt the historian, who sometimes ignores history’s most important lessons.
Following World War I, Germany’s Weimar Constitution established an independent judiciary. On August 20, 1942, Adolf Hitler appointed Otto Thierack as Reichminister of Justice. Six weeks later, Thierack issued the first of his “Letters to All Judges.” According to an article from the U S. Holocaust Memorial Museum, the Letters set forth “the state’s position on political questions and on the legal interpretation of Nazi laws.” German judges understood the importance of following those “suggestions.”
But the article also notes that even Hitler’s SS grasped the potentially explosive implications of Thierack’s intrusions. The fear of a public backlash led to classifying the Letters as state secrets. In a May 30, 1943 report, the Security Service of the SS declared, “The people want an independent judge. The administration of justice and the state would lose all legitimacy if the people believed judges had to decide in a particular way.”
During the final Iowa debate, Gingrich listed U.S. Supreme Court Justices Roberts, Scalia, Thomas, and Alito as his favorites. That endorsement should make them squirm and, as another history lesson confirms, react publicly:
“First they came for the Socialists, and I did not speak out — Because I was not a Socialist…”
There is a deep undercurrent against the current legal system, especially the civil justice system, in the country today. Obviously, Gingrich is trying to capitalize on that.
It would be far preferable if lawyers, judges and legal scholars today would step up to the plate and renew a commitment to innocent until PROVEN guilty, to facts and preponderance of evidence, and to legal ethical standards that put the rule of law above win-at-all-costs by whomever has the most money and influence.
I called your post to the attention of the Des Moines Register under its far less pointed editorial regarding Newt’s bombast.