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Newt Gingrich’s attacks on the courts: Should we pay attention to him?

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.

Judge Kevin S. Burke
Judge Kevin S. Burke

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.

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Comments (10)

  1. Submitted by Richard Schulze on 10/20/2011 - 07:07 am.

    Most people use the term “Judicial Activism” to explain rulings that they don’t like. It won’t get him elected president, but it will keep his speech-making and book-selling career going.

    I wish I had as little integrity as Mr. Gingrich; I could make a bundle.

  2. Submitted by Dennis Tester on 10/20/2011 - 07:52 am.

    Gingrich for President
    – The man gets it –

  3. Submitted by Richard Beens on 10/20/2011 - 08:02 am.

    You’re all so hard on Newt — after all,this is the man who loved his country so much he had to cheat on his wife! What a patriot!

  4. Submitted by Dennis Tester on 10/20/2011 - 08:28 am.

    Bill Clinton is a serial sexual predator, accused rapist, disbarred attorney, convicted perjuror, and impeached president, but he’s still a beloved figure in the democrat party. Maybe Newt should run as a democrat.

  5. Submitted by Thomas Swift on 10/20/2011 - 09:24 am.

    Judge Burke questions Gingrich’s historical integrity, but his relating of the facts actually give warrant to Ginrich’s statements.

    Filling in minutiae left out of a speech sound bite and adding commentary does not prove infidelity to the facts.

  6. Submitted by James Hamilton on 10/20/2011 - 01:06 pm.

    Fascinating article and a great example of a too frequently used tactic of politicians, the distortion of the historical record by a partisn selection of the facts reported. Gingrich is not the first and will not be the last to do so, from any party.

  7. Submitted by James Hamilton on 10/20/2011 - 01:45 pm.

    Harldy a sound by, Mr. Swift. Here’s the entirety of Newt’s pitch on the courts, taken directly from his 21st Century Contract, the subject of the article referred to by Judge Burke above and to which Judge Burke provided a link for those capable of reading it for themselves. (Formatting errors mine.)

    * * *

    9. Restore the proper role of the judicial branch by using the clearly delineated powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution.

    In the last half-century, a political and activist judiciary has stepped far beyond its proper boundaries.

    The time has come to reestablish a balance among the three branches of government according to the Constitution.

    Article I of the Constitution covers the legislative branch, because the Founding Fathers
    thought it would be closest to the people and therefore the strongest branch.

    Article II concerns the Executive Branch because the Founding Fathers had lived through
    an eight-year war with the British Empire and knew there were times when there would
    have to be a strong executive and a competent Commander-in-Chief implementing the
    law and defending the nation.

    The Judicial Branch did not come until Article III because the Founders wanted it to be
    the weakest of the three branches.

    The Federalist Papers explicitly recognized that the Judicial Branch would be weaker
    than the Legislative and Executive Branches. In Federalist 78, Alexander Hamilton wrote
    reassuringly that the Judicial Branch would lose any confrontation with the two elected
    branches: “the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.”

    The Founding Fathers felt strongly about limiting the power of judges because they had dealt with tyrannical and dictatorial British judges.

    In fact, reforming the judiciary was second only to “no taxation without representation”
    in the American colonists’ complaints about the British Empire prior to the revolution. A
    number of the complaints in the Declaration of Independence relate to judges dictatorial
    and illegal behavior.

    Since the New Deal of the 1930s, however, the power of the American judiciary has increased exponentially at the expense of elected representatives of the people in the
    other two branches. The judiciary began to act on the premise of “judicial supremacy,”
    where courts not only review laws, but also actively seek to modify and create new law
    from the bench. The result is that courts have become more politicized, intervening in
    areas of American life never before imaginable.

    There are clear legislative and executive remedies for courts and judges that violate their
    oath of office, act beyond the judicial power, or otherwise act in a manner that violates
    the Constitution, and these remedies have been used in the past.

    For example, Thomas Jefferson and the new Congress abolished over half the federal
    judgeships and reorganized the federal judiciary with their repeal of the Judiciary Act of
    1801 and their passage of the Judiciary Act of 1802. Congress also has the power under
    Article III of the Constitution to regulate the jurisdiction of the Supreme Court and other
    federal courts.

    I look forward to having a national conversation about a bill that will establish a constitutional framework for reigning in lawless judges, reestablishing a Constitutional balance among the three branches, and bringing the Courts back under the Constitution.

    * * *

    Gingrich, like any candidate, is responsible for what he says as much as what he doesn’t say. Omission is part of the art of persuasion, an art in which Gingrich has shown some skill. It is not only appropriate but incumbent upon those who find errors in his reasoning, or dishonesty in his presentation, to come forward.

    It’s not much different, in fact, than reading and responding to posts on MinnPost.

  8. Submitted by Richard Schulze on 10/20/2011 - 07:41 pm.

    I don’t think Mr. Gingrich ever be elected. After all, we already know he’d just dump us halfway through his term to go be the president of a younger country.

  9. Submitted by Thomas Swift on 10/24/2011 - 10:50 am.

    I thank you for posting the speech in it’s entirety, James. given context, it not only bolsters Gingrich’s arguemnt, but calls into question the judge’s orginizational skills.

    That is to say he put the cart before the horse and then drove both down the wrong road.

  10. Submitted by Lock Piatt on 11/02/2011 - 12:00 pm.

    I find no Authority for what the Judge wants in the Article III of the Constitution maybe he can tell us where the usurped powers the courts use are allowed?

    Article III – The Judicial Branch Note

    Section 1 – Judicial powers

    The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

    Section 2 – Trial by Jury, Original Jurisdiction, Jury Trials

    (The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

    Section 3 – Treason Note

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

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