Of course we should. In a democratic society, healthy debate preserves the democracy. Debates about the proper role of the judiciary have been part of the American fabric since the adoption of the United States Constitution, so we should neither be shocked nor surprised that a presidential campaign will bring out candidates who attack courts in general or certain decisions in particular. That is what former Speaker Newt Gingrich has made a central part of his campaign to become president.
But to paraphrase the late Sen. Daniel Patrick Moynihan, Gingrich is entitled to his own set of opinions but not his own set of facts or history. Gingrich has been ignoring a lot of facts and rewriting a lot of history. To recap the former speaker’s activity, recently he spoke at a conference organized by the Family Research Council Action, saying that he “would instruct the national security officials in a Gingrich administration to ignore the recent decisions of the Supreme Court on national security matters … .” According to The Atlantic, Gingrich also “wants Congress to subpoena federal judges whose decisions it disagrees with.”
At one point, Gingrich was a history professor, so that fidelity to historical accuracy should be a fundamental value for him. The Atlantic article — “Gingrich: Time to Subpoena Federal Judges,” by Andrew Cohen — notes several problems in Gingrich’s proposal, including the unconstitutionality of “a Congressional inquisition that patently violates separation of powers principles.” Gingrich suggests other ways of disciplining judges through limiting the right to appeal and the budget.
For example, Gingrich says, “Congress has the power to limit the appeals, as I mentioned earlier. Congress can cut budgets. Congress can say: ‘All right, in the future, the 9th Circuit can meet, but it will have no clerks. By the way, we aren’t going to pay the electric bill for two years. And since you seem to be — since you seem to be rendering justice in the dark, you don’t seem to need your law library, either.’ ”
Interpretation left to the future
Next to flag burning, school prayer may be among the most volatile First Amendment issues a judge faces. The Founding Fathers were clear. They envisioned a nation with no established religion but left the details of what that meant to future generations. If a judge rules on a school prayer case, expect to be attacked and don’t be surprised if you are reversed. And so it is not unexpected that Gingrich has repeatedly attacked a Texas federal district court judge for issuing an opinion on a school-prayer case in June that Gingrich described as a ruling so anti-religious, so bigoted, and so dictatorial that the judge should be subpoenaed to testify before Congress to justify his behavior. The district court opinion, which was promptly reversed in June (an aspect of the case Gingrich rarely, if ever, mentions), can be found here [PDF]. Hyperbole is part of politics, but is this opinion really bigoted?
Gingrich has a campaign manifesto he describes as the “21st Century Contract With America.” The Des Moines Register reports that a central component of the manifesto is an attack on the judiciary. Gingrich’s platform includes a call to “rein in lawless judges, re-establish a constitutional balance among the three branches of government, and bring the courts back under the Constitution.” Gingrich calls for using “the clearly delineated powers available to the president and Congress to correct, limit or replace judges who violate the Constitution” In support of his platform, Gingrich said that “President Thomas Jefferson abolished over half the federal judgeships.”
Jefferson is a figure of enormous historical significance, and so it is not surprising that a candidate would try to cloak themselves in his aura. But Jefferson never said he would advise the government to ignore a Supreme Court decision as a matter of national security. It was President Richard Nixon who did that during Watergate, and Nixon obviously does not create the same aura that Jefferson does.
Jefferson’s views were complex
Is Gingrich accurate when he claims that his views of the judiciary are similar to Jefferson’s? Jefferson was indeed highly suspicious of the judges appointed by his predecessors, but his views about the judiciary were far more complex than Gingrich portrays. For example, Jefferson argued for a bill of rights that would include power for the judiciary to protect individual rights. The role of the judiciary in protecting individual rights is noticeably absent from Gingrich’s rhetoric.
Jefferson was very much a partisan in his views about the judiciary. At his urging, Congress indeed repealed the Judiciary Act of 1801, abolishing the numerous judgeships created at the end of the John Adams presidency. Apparently, this is what Gingrich is referring to when he claims that Jefferson abolished over half the federal judgeships. Many historians (excluding Gingrich) have concluded that the battle to abolish the Judiciary Act of 1801 was not one that reflects well on the value of an independent and accountable judiciary. The passage of the act itself was fraught with partisan overtones. In the 19 days between passage of the act and the conclusion of his administration, President Adams quickly filled as many of the newly created circuit judgeships as possible. The new judges were known as the Midnight Judges. Adams was said to be signing their appointments at midnight prior to Jefferson’s inauguration. The famous Supreme Court case of Marbury v. Madison involved one of these “midnight” appointments.
The Federalists argued that once the courts were created and judges were appointed, the Constitution required that the judges serve for life unless impeached for “high crimes and misdemeanors.” Jefferson chose not to focus on the argument that there was political manipulation of the courts by President Adams’ midnight appointments, but instead chose to attack the appointments as simply too costly to the nation. His argument was he had the right not to issue the commissions necessary for the midnight appointments to take effect to save money. Despite the fact that this argument required a “loose” interpretation of the Constitution, which Jefferson rallied against when he fought the creation of Hamilton’s First Bank of the United States, the Congress agreed and repealed the law.
Tried to impeach federal judges
Jefferson and his political allies were not content with simply overturning the Judiciary Act of 1801 and preventing the “midnight judges” from taking office. They next attempted to impeach existing federal judges. The first case was John Pickering, a Federalist judge who exhibited signs of insanity and public drunkenness. At Jefferson’s urging, the House of Representatives impeached Pickering in 1804, and the Senate removed him from the bench later that year.
Jefferson next set his sights on the Supreme Court. After he learned that Federalist Justice Samuel Chase had told a grand jury that the Republicans threatened “peace and order, freedom and property,” Jefferson urged congressional leaders to begin impeachment hearings. Even many Jeffersonians felt that this accusation of sedition against Justice Chase was too reminiscent of the Federalist Sedition Act that they had repealed. Unwilling to remove a Supreme Court Justice on purely political accusations, the Senate acquitted Justice Chase of all charges in 1804.
By rebelling against Jefferson’s wishes, the Senate sent a message that the independence of the judiciary was not open to political manipulation. Political manipulation seems to be a central tenant of Gingrich’s present views on the judiciary, and that is where his fidelity to history and facts fall short. Should we pay attention to Newt Gingrich? Of course. But what Gingrich owes us in return is fidelity to factual accuracy in the telling of history.
Judge Kevin S. Burke has served on the Hennepin County District Court for 27 years. He served as the chief judge for four terms. He is the president of the American Judges Association.