Newt Gingrich's outbursts against judicial independence are stirring alarm even among conservatives, like former Attorneys General Michael Mukasey and Alberto Gonzales, who have denounced his musings on the judiciary as "dangerous," "outrageous," and "totally irresponsible," as last week's questioner at the GOP presidential debate observed.
Gingrich's defiant answers at the debate were divorced from reality and indeed comical for a self-proclaimed "historian." He called the courts "grotesquely dictatorial, far too powerful, and. . . arrogant in their misreading of the American people" -- a characterization that would have applied nicely to Bush v. Gore (the first Supreme Court decision in history to settle a presidential election by ordering that votes not be counted), or Shaw v. Reno and Miller v. Johnson (which struck down state-designed majority-African American legislative districts that were not to the aesthetic or political likings of the 5-justice majorities), or Citizens United (a case in which the 5-Justice majority wrote its own question and then answered it with the astonishing revelation that corporations are endowed with political spending rights of the people.)
No, with his macho posturing, Gingrich was targeting Elk Grove v. Newdow , the 2002 9th circuit decision which held that the addition of "under God" to Francis Bellamy's Pledge of Allegiance was a deliberate endorsement of monotheism with no secular purpose and therefore a violation of the Establishment Clause. (The decision was later reversed by the Supreme Court on the dubious grounds that the plaintiff lacked standing.) But Gingrich is adamant that this is a case that must be brought to the attention of the American people. As he said in the debate, "if you had judges who were so radically anti-American that they thought "one nation under God" was wrong, they shouldn't be on the court." He suggests that the judges who write such decisions should be impeached or that their entire courts be abolished.
Ironically, Gingrich is training his bullying talk and threats on a judge who was named to the federal judiciary by President Richard Nixon. The author of the straightforward majority opinion in the 2-1 Ninth Circuit panel decision in the Newdow case was Judge Alfred T. Goodwin, who was named both to the federal district court and the Ninth Circuit by none other than "Tricky" Dick Nixon himself. Is Nixon now too liberal for Gingrich? Gingrich's crass appeal to religious fervor in his party is brutish indeed.
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.
Gingrich went on to say that "Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country. That would be the end of our freedom." But, of course, Lincoln always accepted the binding constitutionality of the Dred Scott judgment, which is why the Emancipation Proclamation did not free slaves in states that remained loyal to the union--it was a "war measure" justified only by military necessity and Lincoln felt he had no other authority to free the slaves because of Dred Scott. It is a good thing that Gingrich only pretends to be an historian.
But, lest any of this drive anyone into the arms of Mitt Romney as some kind of moderate alternative to Gingrich on the judiciary, consider that Romney's new constitutional advisor is none other than former Judge Robert Bork, an astounding selection to head up the Governor's legal and constitutional affairs advisory team. Bork is a fiercely pro-corporate, anti-voting rights, anti-choice, anti-feminist, pro-censorship, anti-gay, anti-free speech, anti-separation of church and state, and evolution-denying ideologue who has described the 9th Amendment to the Constitution defending the rights of the people as "an inkblot" and called for allowing Supreme Court constitutional decisions to be overturned by majority vote in Congress as well as a constitutional amendment to deny gay people the right to marry.
Newt Gingrich might be flaunting his disregard for the Constitution most flagrantly, but as a danger to our rights and liberties, he's got nothing on Mitt Romney.
Follow Jamin Raskin on Twitter: www.twitter.com/jamie_raskin