THE BLOG
12/21/2011 04:27 pm ET | Updated Feb 20, 2012

How the Gingrinch Stole the Judiciary

I would like to make one of Mitt Romney's $10,000 wagers with Newt Gingrich. I bet that if the United States Supreme Court were to declare President Obama's health care legislation unconstitutional that there will be no cries from him or any other conservatives that the decision was made by "a bunch of elite, activist, unelected, unaccountable, arrogant judges thwarting the will of the majority and substituting their agenda for that of Congress". It's a bet I can't lose. "Judicial activism" is in the eye of the beholder. For conservatives it simply is a decision with which they do not agree.

Newt Gingrich, who touts himself to be the great historian (not lobbying but giving historical advice to Freddie Mac and Fannie Mae), suggests that judges should be called before Congress (and physically dragged in if necessary) to explain controversial rulings. First Newt, you might want to begin by reading the opinions which have the explanation right there in black and white. They call them "judicial opinions" because the reasoning for the decision is set forth in great detail. I am willing to double-down on my bet -- that Newt has never read the opinion by Judge Biery in Texas that he is constantly railing against. Most criticism of judicial opinions focuses upon the result and not the reasoning, and I suspect Gingrich has read a squib or a headline but not the whole opinion.

But Newt has this idea that judicial rulings are supposed to be popular, at least with him, and that if they are not, something should be done about or to the judges who render them. For instance, those judges who ruled against school segregation in those states that still wanted it should be removed, or at least their budgets cut and their lights turned off. Rulings of judges in favor of criminal defendants, gay marriage, abortion rights, and separation of church and state are not popular with conservatives, so off with their robes! Gingrich apparently has this view that judicial independence and separation of powers are some quaint old relics that have seen better days.

He wants to abolish courts and eliminate judges that do not rule as he wished. By the way Mr. Historian, the president does not abolish jurisdictions or subpoena anyone including judges to appear before Congress; Congress does that. But my all-time favorite is the idea of having Congress decide what is constitutional -- be a Super-Supreme Court. Here's how that would work. Congress would enact a law. The Supreme Court would declare it unconstitutional. Congress would then decide whether or not it is constitutional. And wouldn't the current Congress be the idyllic place to decide whether or not its own legislation is constitutional, assuming that is -- that they pass any legislation. They can't agree on the lunch menu.

The Constitution grants federal judges life tenure with good behavior subject to impeachment for serious violations -- not disappointing or unpopular rulings. The judiciary is the last branch of government for which the public has respect. Leave it to the politicians to bring it down to their level.

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