When asked by host Bob Schieffer how he would force federal judges to comply with congressional subpoenas, Gingrich said he would send the U.S. Capitol Police or U.S. Marshals to arrest the judges and force them to testify.
Gingrich, who in recent weeks has surged to the front of the pack in the race for the 2012 Republican presidential nomination, has come under fire from the left and the right for his attacks on the federal judiciary. Michael Mukasey, former attorney general during the George W. Bush administration, said some of Gingrich’s proposals were “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle.
You don't need to be a lawyer, politician or scholar to hear the contradictions in Gingrich's latest argument. He's against "elitist" judges but not against the lobbyist-infused Washington insiders who would overrule them. He rails on the 9th Circuit for its Pledge of Allegiance ruling as though it were the law of the land (it is not, as your school-age child is likely to tell you). Similarly, he picks on a federal trial in judge in Texas whose school prayer ruling was almost immediately overturned on appeal. Small beer, indeed, for the monumental remedies Gingrich seeks; it's like destroying the whole house to get rid of a few nagging flies.
"I think part of the advantage I have is that I'm not a lawyer,' Gingrich told Schieffer. "And so as a historian, I look at the context of the judiciary and the constitution in terms of American history." The fact that Gingrich is not a lawyer helps explain why he sounds so ignorant about the law. The fact that he is an historian helps explain why he's hanging much of his theory on some hoary precedent involving Thomas Jefferson, the slave owner, who eliminated 18 of 35 judges back in his day. Never mind the constitutional precedent and practice of the intervening 200 years, Gingrich's argument goes, it happened once so it should happen again.
I cited Judge Johnson above not just because his quote is a timely reminder to demagogues like Gingrich that they are often responsible for the very "activism" they decry. Judge Johnson, as a federal trial judge in Alabama from 1955-1979, essentially devoted his entire judicial life to helping to ensure that black citizens would gain the basic civil rights that governors and state legislators and the Congress and the White House would not give them. Imagine how many times Judge Johnson would have been called onto the carpet on Capitol Hill under a Gingrich Administration. On which side of that history would you want to be?
The last word goes to Fein, the proud Reaganite. On Sunday afternoon, he called Gingrich's ideas "more pernicious to liberty than President Franklin Roosevelt's ill-conceived and rebuked court-packing plan." More colloquially, Fein told me in October when Gingrich first went off the rails on this issue: "This is crazy. It would bring us back to the pre-Magna Carta days... The idea that these legislators, who haven't read the Constitution or their own statutes, are going to lecture federal judges about the law is ridiculous. It's juvenile. It's high school stuff." Indeed—and thus perfect for a bumper-sticker: Your Constitution: Rock, Paper, Scissors, Newt.
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