Newt Gingrich’s Crazy Attacks on the Federal Courts

The law, lawyers, and the court.
Dec. 19 2011 5:27 PM

Courting Disaster

Newt Gingrich's ill-advised war on the only branch of government that people believe in.

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So either Gingrich truly is betraying himself here as a spoiled brat who just wants to slap his mommy in the mouth for occasionally telling him “no,” or his attack on the judiciary is a dog whistle of some sort. And while I am all but certain that this attempt to turn the courts into his personal lightning rod of crazy is simply Gingrich proving yet again that he needs to be boss of everything, let’s pretend for just a second that there is some reasoned plan behind attacking the only branch of government that enjoys almost 50 percent popular support. Why, Newt, why?

One possibility is that this is Newt attempting to talk exclusively to Iowa voters. Don’t forget that he has a history with Iowa and its judges. It was Gingrich, after all, who was one of the first prominent financial supporters of a successful ouster of three Iowa Supreme Court Justices who had done nothing but rule (unanimously by the way) that the state constitution prohibited discrimination against gay marriage. He helped gay marriage foes raise $200,000 to that end, and as a result Bob Vander Plaats, CEO of the influential Iowa social conservative group called The Family Leader is still in agonies over whether three unseated judges mathematically cancels out three sets of marriage vows. It’s a short hop from undermining a state’s nonpartisan judicial election scheme to shutting down federal courts. But all of it speaks volumes about Gingrich’s respect for judicial independence.

 Howard Kurtz suggests that this is just Gingrich “narrowcasting” to the types of conservative activists who turn up for Republican primaries. But it does lead one to wonder whether bashing elitist out-of-touch activist judges still has any salience with Republicans after decades of successes in the courts, twinned with decades of nullifying the courts, and whether two isolated episodes of judges enforcing the establishment clause is really enough to work up anyone who isn’t still relitigating the big battles of the 1980s. Scott Lemieux is amused that Republicans continue to do battle with the Warren Court decades after the federal judiciary has shifted to the right, observing that we live in a “bizarre world in which Republican-dominated federal courts are seen as bastions of liberalism. As on so many other issues, wealthy, privileged Republicans have the remarkable ability to be permanently aggrieved no matter how much they’re winning.” But maybe Gingrich simply feels that gabbling on about the anti-religious bias of the judicial branch will still resonate with GOP voters, even while it’s completely untrue. It’s also a distinct possibility that Newt, the big ideas man, never fully appreciated that the “war on activist judges” is a talking point, not a position paper.

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One of the reasons Republicans have been trash talking the courts for three decades is that courts can’t answer back. If Chief Justice John Roberts is gnashing his teeth at Gingrich’s proposals to drown the entire federal judiciary in a bathtub, you’ll never hear it from him. And maybe that’s the final explanation for why Gingrich is attacking the judicial branch with such out-of-proportion ferocity. In classic bully fashion he’s going after a target that is structurally unable to tell its side of the story. That, and that alone, is why those three Supreme Court justices from Iowa were swept off the bench in a retention election. When judges can’t talk back, the bullies will always win.

Maybe Newt’s star was fading anyhow, and perhaps it’s ultimately a good thing for the judicial branch to see scorn emanating from across the political spectrum for efforts to damage the sole counter-majoritarian check we all have on “popular” legal ideas in this country. Or maybe his thoughts on the courts can ignite a really thoughtful conversation about why courts matter so much in election years (one rooted in actual decisions and consequences and not plans to turn the judicial branch into the guys who empty Newt’s ashtrays). I confess I have no idea why Gingrich hates judges so much. Maybe one bit him when he was a child. Or maybe one bit him during one of his divorces. But in the annals of big rhetorical miscalculations, his attack on the last branch of government that still works at all will go down as an epic mistake.

Also in Slate, read Eric Posner's take on Gingrich and the judiciary.