On Gingrich’s judicial power play

Mr. Gingrich thinks well of himself – by itself, a prerequisite for the presidency. Part of the American vetting process we call caucuses, primaries and campaigns is about inquiring just how well one thinks of oneself, and just how one thinks well of oneself.

Mr. Gingrich gives us a glimpse into both by his assault on activist judges. He has ramped up the rhetoric – far beyond its traditional mooring in the importance of presidential elections, because presidents populate the judiciary. That subtle interplay between the branches – a perfect instance of what we traditionally celebrate as “checks and balances” – doesn’t satisfy Mr. Gingrich.

He wishes to make a case for the other two branches aggressively taking back power from the judiciary. He makes this case radically, as befits the bigness of his ideas. Presidents (and presumably governors) are not necessarily bound by Supreme Court interpretations of the Constitution, entire courts (such as the Ninth Circuit) should be abolished, and individual judges should be held accountable for opinions that a president or a congressional committee consider unconstitutional, and subpoenaed, if necessary, to explain their decisions.

I disagree strongly with Mr. Gingrich’s splash-play on judges – but I hasten to add, his ideas are not “crazy.” The Supreme Court’s final authority on constitutional interpretation was an unsettled and controversial question before 1803, when Chief Justice John Marshall handed down the landmark Marbury v. Madison decision. And the controversy continued simmering thereafter (emphasis on “simmering,” as we conducted judicial and political business as if the issue were finally settled).

Mr. Gingrich is correct that Congress has the technical power to abolish and add lower courts, and even to haul judges before Congress. But not all technical powers are wisely exercised, a point that should resonate with conservatives.

Curiously, Mr. Gingrich’s remedy for a “constitutional crisis” (and for the record, we are not in the midst of a “constitutional crisis,” at least not if that phrase has any of the gravity that the Constitution itself has) is to radically politicize the Constitution. If you believe we’re in the midst of a constitutional crisis now, buckle your seatbelts. Strip the Supreme Court of supremacy in constitutional interpretation (a notion, ironically, with considerable liberal support), abolish the Ninth Circuit, and subpoena judges to explain their decisions to Congress – and we’ll be awash in weekly constitutional crises.

Mr. Gingrich might have sounded sensible had he urged a more serious constitutional conversation. For example, he could have called for serious congressional inquiries into constitutional doctrines applied by the courts. He could have promoted hearings by the House and Senate Judiciary Committees featuring panels of legal experts that educated Congress and the public on the origins, justifications and consequences of various holdings. That would be a public service, and smack less of branch bullying.

But of course, Mr. Gingrich believes he is seizing upon a hot-button issue, and doing so in a radical way that could galvanize conservative support for him as the only muscular conservative in the race for the Republican nomination.

As Mr. Gingrich has very little money and very little organization, compared to Mr. Romney, he rather desperately needs a surrogate for what organization and money get a candidate: credibility and momentum. Attacking activist judges plays well with the base, but is insufficiently attention-getting by itself. So Mr. Gingrich couples it with a grand re-shuffling of the constitutional balance of powers, as befits the bigness (and the bluster) of his ideas.

It’s a long shot, but it’s Mr. Gingrich’s Hail Mary – much as John McCain, with his similarly challenged campaign, threw the Sarah Palin Hail Mary – not with conviction that he was choosing carefully, but precisely with the knowledge that choosing carefully doomed him, and that only an apparently reckless long-shot, which might, just might, open into some kind of excitement and momentum, was his only hope.

The difference is that John McCain stared at the juggernaut of history bearing down upon him, and threw a Hail Mary, while Newt Gingrich imagines himself the juggernaut of history poised to sweep civilization, and throws a Hail Mary hoping how well he thinks of himself will be contagious.

 

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Pro-Gay, Anti-Military Misdirection and Elena Kagan

Captain Pete Hegseth testified before the Senate Judiciary Committee in opposition to Supreme Court nominee Elena Kagan.  It is a short powerful statement.  It underscores succinctly the difficulty that so frequently confronts me in making sense of leftwing priorities.  Captain Hegseth doesn’t argue the merits of the Don’t-Ask-Don’t-Tell law, and in fact acknowledges that reasonable minds can differ.  Instead, he notes merely that the source of the policy was Congress and President Clinton, for whom Ms. Kagan went to work, and that instead of directing her activist opposition to the source of the policy, she directed it at the institution upon whom it was imposed by law.

Moreover, if the opposition to DADT is a genuine instance of solidarity with gay rights (rather than an opportunistic bashing of the military), then why did Ms. Kagan invite and welcome to Harvard’s campus numerous members of Congress who voted for the policy she calls “a moral injustice of the first order”?  These members of Congress were the actual perpetrators of this first-order moral injustice.  Shouldn’t they have been flogged?

Speaking of which, Captain Hegseth notes that Harvard has three academic chairs endowed by money from Saudi Arabia — where homosexuality is a capital offense.  If you are gay, or adequately suspected of being gay, in Saudi Arabia, you will be killed.  Not fired, not scorned, not disrespected.  Killed.  There plainly must be a moral injustice of an order even higher than first.  Saudi Arabia commits that extra-magnitude moral injustice routinely.  And Ms. Kagan would therefore be obliged to oppose it with rough proportion to her activist opposition to the military and its congressionally-imposed DADT policy.  She did not.

So Ms. Kagan’s conduct at Harvard was opportunistic and hypocritical.  I do not suggest that engaging in opportunistic and hypocritical conduct automatically disqualifies Ms. Kagan from confirmation to the Supreme Court.  Let him who is without sin cast the first Saudi Arabian stone.  But can we at least call it a sin?