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.

Newt Gingrich.
Why is Newt Gingrich attacking the federal courts?

Photograph by Kevork Djansezian/Getty Images.

For a self-confessed epic character, Newt Gingrich has stage-managed himself into an epic piece of political stupidity. With his escalating attacks on the federal judiciary, he has confirmed that, if elected, he would place himself atop a government that simultaneously manages to be both a dictatorship and a theocracy. In recent weeks—and just as his presidential star was improbably rising—he doubled down on his initial claims that the federal courts “have become grotesquely dictatorial and far too powerful,” to offer up new promises that, as president, he would abolish federal judgeships, occasionally ignore the Supreme Court, and—in the manner of a tiny tyrant in khaki shirts and mirrored sunglasses—have federal marshals arrest errant federal judges and force them to testify before Congress about their unpopular decisions.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

One is tempted to open up a can of lofty rhetorical whoopass to explain why each of these ideas offends the basic constitutional principles of separation of powers, and judicial independence, but really, why? Does anyone even have to explain why Gingrich’s plans to construct a federal judiciary out of his own rib, then terrorize it into imposing his constitutional vision on the nation is a staggeringly bad one? Not really, given that conservative commentators have ably done so already. Former Bush Attorney General Michael Mukasey last week called the Gingrich court plan “ridiculous,” “irresponsible,” “outrageous,” and “dangerous” and former Bush Attorney General Alberto Gonzales called it “intimidation or retaliation against judges.” Conservative legal analyst Edward Whelan dismissed Gingrich's proposal for abolishing judgeships "as constitutionally unsound and politically foolish." Conservative columnist George Will poked fun at Gingrich’s hysterical rant about how the 9th Circuit’s decision that the word “God” in the Pledge of Allegiance was unconstitutional was comparable to the court’s infamous Dred Scott decision. Wrote Will: “Really? It took four years of war and 625,000 dead to settle the slavery question; it took a unanimous Supreme Court a few minutes to swat aside the 9th Circuit’s silliness.”

It’s silliness indeed for Gingrich to focus an attack on an entire “arrogant,” “elitist,” and “grossly dictatorial” judicial branch by paying obsessive attention to the California Pledge case (that was overturned) and a Texas district court decision (that was also overturned). By his lights this should be a sign of the one branch of government that actually works. Gingrich saves extra scorn for Anthony Kennedy (who sometimes “gets up as a conservative” and sometimes “gets up as a liberal,”) and for the landmark 1958 ruling in Cooper v. Aaron—the seminal (and unanimous) civil rights case barring Arkansas from simply nullifying federal school integration rulings. Gingrich dismisses Cooper as “factually and historically false.”

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Also, if there is a dumber idea than having judges who already issue written opinions being hauled before Congress to explain the very reasoning they have painstakingly rendered in writing, I can’t imagine it. But Gingrich is so in love with his proposed mechanisms to replace the judgment of nine puffed-up elitists with the judgment of just one puffed-up elitist, he seems unable to appreciate the irony.

Given that not a single serious constitutional thinker has lined up behind Gingrich’s proposals to do away with judicial independence (and Gingrich says that’s because historians know more about such matters than lawyers anyhow) the real question is not so much why is he spewing all the wackadoo, as what can he possibly be thinking? What can Gingrich be seeking to achieve when he attacks a judicial branch that is—as my friend Jess Bravin notes—“widely considered to be the most conservative since the 1930s.” (Bravin goes on to point out that Gingrich should be more careful picking fights with his friends, since, if “a President Gingrich were to follow through with his plans, he would almost certainly provoke a constitutional conflict with the head of the federal judiciary—Chief Justice John Roberts, who, as it happens, Mr. Gingrich has cited as one of his favorite justices.”)

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.

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.

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