WASHINGTON -- Newt Gingrich's lackluster performance in Thursday night's debate darkened the already dim chances of seeing Justice Anthony Kennedy hauled before a congressional committee to account for his occasional left-leaning fifth votes in politically charged Supreme Court cases.
But in Gingrich's view, that may be just the kind of tough oversight the judiciary demands -- and the kind of big, albeit constitutionally dicey, thinking the country needs. Unfortunately for Gingrich, no one except his most committed supporters seems to agree.
In October, appearing before the Values Voter Summit, he railed against "judges who don't understand the Constitution" -- or, at least, his interpretation of the Constitution. The chief problem, he said, is the concept of judicial supremacy, under which the legislative and executive branches must acquiesce to the courts' interpretations of the Constitution.
The speech was drawn largely from a Gingrich campaign white paper titled "Bringing the Courts Back Under the Constitution." In the paper, Gingrich lays out his case against judicial supremacy with supportive citations to the Federalist Papers, contemporary scholarship, and curiously aberrant opinions by two of the Supreme Court's most notoriously activist justices. As Gingrich makes clear, denunciations of judicial supremacy have a long history of support, from presidents Jefferson and Jackson to Lincoln and FDR. Each of them, in various ways, fought a Supreme Court that obstinately opposed his political agenda.
A President Gingrich, on the other hand, would enjoy perhaps the most conservative Court in 75 years. Further, he might have the chance to replace the 78-year-old liberal Justice Ruth Bader Ginsburg or the 75-year-old moderate Justice Kennedy with a rock-solid right-wing jurist, who would create a conservative majority on the few issues that have not yet fallen into the Republicans' win column.
Although the white paper nods to this time-honored means of swinging the courts in a given direction, Gingrich's focus is clearly on sending a broader message to the judiciary that it will not be the boss of a Gingrich administration, even if judges must be intimidated into submission.
To do so, Gingrich would abolish troublesome judgeships and lower federal courts, a move that the white paper describes as "a blunt tool and one whose use is warranted only in the most extreme of circumstances." Although Gingrich does not explicitly define those circumstances, he has heavily criticized the Supreme Court's decision allowing Guantanamo detainees to challenge their detentions in federal court as well as the prospect of a pro-gay marriage ruling.
Meanwhile, conservative commentators have condemned Gingrich's proposal to abolish judgeships as, in the words of National Review's Ed Whelan, "awful."
Gingrich has reserved particular ire for the U.S. Court of Appeals for the 9th Circuit. Chief Judge Alex Kozinski, a Reagan appointee, told the Wall Street Journal that the campaign attacks are a "topic of amusement," while another 9th Circuit judge laughed off the idea of breaking up the court before finding it "a little depressing."
In December, Gingrich said that he would encourage Congress to subpoena judges for accountability hearings, even if that meant sending the U.S. Capitol Police or U.S. marshals to round up the judges. Michael Mukasey, who served as attorney general under George W. Bush, told Fox News that Gingrich's threats to the independent judiciary were "dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle."
And what a spectacle it would be. The 2012-2013 Supreme Court term might very well rule on abortion, affirmative action, gay marriage and Guantanamo. Any of those issues could divide the justices 5-4 to the delighted "chagrin" of a President Gingrich itching for a fight.
In recent weeks, attention to Gingrich's judicial views has subsided as more sensational matters, from his super PAC ads to his second wife to his space colonies, have arisen. Still, Gingrich has not disavowed the plan, however much it has been hammered. His win in the South Carolina primary raised the possibility that confrontation with the courts could become an official policy of the Republican presidential nominee.
But a Mitt Romney victory over Gingrich in Tuesday's Florida primary could kill the idea. Romney has gone on the record as opposing the more extreme elements of Gingrich's plan, warning of the uncertainty that congressional power over the courts would bring to the rule of law.
"Every few years, you'd have elected congresspeople changing the rulings of the Supreme Court," Romney said last month in New Hampshire, according to the Boston Globe. Instead, he would stick with the tried-and-true method of appointing conservative judges and go no further.
And that may reflect the deciding difference between Gingrich and Romney in Florida. While some voters don't like Romney for playing his politics so safe, more may be turned off by Gingrich's willingness to upend everything.