Newt v. Judiciary

In what seems to be an ongoing effort to convince Republican primary voters that he's the most radical Republican in the presidential race, Newt Gingrich decided to go after the "judicial activism"-haters by declaring yesterday that what we need is more witch hunts of judges. In Gingrich's view, when members of Congress -- a group of people well known for being sober and responsible and avoiding grandstanding and demagoguery -- feel like it, they should be able to haul judges in front of them to explain their rulings, and if the judges don't like it, federal marshals should arrest them. Furthermore, he believes that the president should be able to simply overrule any Supreme Court decision that displeases him. As he said on Face the Nation, "Nine people cannot create the law of the land, or you have eliminated our freedom as a people." Newt would essentially like to overturn Marbury v. Madison and declare the last two centuries of Supreme Court jurisprudence invalid.

It should be noted that Newt is not the only one who wants to just fire judges he disagrees with; Rick Santorum, for instance, thinks that because the 9th Circuit court of appeals has issued rulings he doesn't like, the entire court should be abolished. But other candidates haven't come forward with quite the kind of bold thinking Gingrich has, when it comes to the congressional witch hunts and the idea that the president should be able to just overrule whatever decisions he doesn't like. Because after all, why have the power residing with "nine people," when you can just give it to one person?

Whenever someone proposes a breathtaking expansion of executive power, it's a good exercise to ask yourself, "What if the politician I hate most had this power?" If you're a liberal, you can insert "Sarah Palin," as in, "What if Sarah Palin had the power to declare anyone anywhere in the world, even an American citizen, an enemy combatant and have them assassinated?" Thinking about it that way ought to enable you to divorce the issue from your feelings about the particular person who happens to sit in the White House now and determine whether the principle being espoused is a reasonable one. In this case, any reporter who gets the chance ought to ask Newt a question like this:

Let's say that the Supreme Court declares the Affordable Care Act unconstitutional next year. According to your position, Speaker Gingrich, Barack Obama not only would be able to simply state that he disagrees and will continue implementing the law, but in fact he should do that if that is what he as president believes. Will you say right now that if the Supreme Court declares the ACA unconstitutional, you'll urge Barack Obama to ignore the Court and implement the ACA, since that's his preference?

The real answer is, of course he won't. Should the Supreme Court rule the ACA unconstitutional, Gingrich will say they're absolutely right, and President Obama has no choice but to abide by their ruling. You see, breathtaking expansions of executive power are for presidents you like, not those you dislike. But it turns out that he got asked a question like this, as this article explains. His utterly nonsensical answer was as follows: "Gingrich said the standard should be the 'rule of two of three,' in which the outcome would be determined by whichever side two of the three branches government were on." He did allow, though, that most of the time "you want the judiciary to be independent," but it's necessary to step in and overrule them when they make decisions that are "strikingly at variance with America." Well that makes sense: the judiciary will be independent, so long as they don't render decisions deemed wrong by...well, by Newt, I guess.

To their credit, even many conservatives believe that on this issue, Newt is completely insane. But that just shows that even his own party can't fully appreciate his bold, innovating thinking.

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