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.

 

Republican ephemera, Part 4: Even Newt’s baggage has baggage…

Newt Gingrich has been quite the Republican statesman lately, shrewdly applauding his fellow candidates at every opportunity and attacking debate moderators. And his poll numbers lift him from the presidential obscurity to which he seemed destined a mere month ago to Serious Contender status. (Americans viscerally detest debate moderators.)

A Fox poll of Republican primary voters gives Gingrich 23%, Romney 22%, Cain 15%, and the rest single digits. A CNN/ORC poll of Republicans and independents who lean Republican gives Romney 24% and Gingrich 22%. Quite the surge for the gentleman from Georgia.

Debate-weary Republicans dream of the Great Debate between Gingrich and Obama, and what the savvy Speaker and architect of the ’94 Republican resurgence could do to the guy who was 33 in 1994, and hadn’t yet begun his political career. Meanwhile, Democrats salivate at the prospect of Republicans choosing Newt Gingrich to run against Barack Obama, and their Playbook for such a scenario is thick with optimism.

Gingrich has three categories of baggage — and by “baggage,” we mean stuff that depresses voters, or more particularly, depresses voter enthusiasm and turn-out (or, alternatively, inspires enthusiasm or turn-out for one’s opponent).

1. Gingrich has high name recognition precisely because he was the guy who reintroduced America to divided government. When the Republicans took over the House in 1994 — the first time since 1954 — it was due in no small part to the raging partisan energy of Newt Gingrich, co-architect of the Contract with America, and back-bencher bomb-thrower for years before that success. There followed abundant legislative energy in pursuit of the Contract with America, an unpopular determination to impeach a popular president, and a sad stand-off with President Clinton that could have been a significant victory for fiscal responsibility, but ended up being about Newt Gingrich feeling personally snubbed by the president, and a government shut-down that Democrats successfully painted as Gingrich’s petulance. Gingrich’s name recognition derives substantially from his passionately partisan stature in the 1990s — not a recipe for attracting independents.

2. Fast-forward to the 21st century. Gingrich strives to acquire counter-baggage. Serious counter-baggage, not simply moderation of his views. He flips 180, and flips hand-in-hand with iconic Democrats who were as passionately partisan for the opposite camp as he had been for his. He holds hands with John Kerry about global warming, cuts a global warming commercial with Nancy Pelosi, holds hands with Al Sharpton about education reform, supports a George Soros candidate in a special election, holds hands with Hillary Clinton about health care, and even applauds the individual mandate. And most recently, he calls Paul Ryan’s plan to save Social Security “right-wing social engineering.”

And now he’s trying to sound conservative again. I could make a case that Newt Gingrich is a smart man with views that evolve intelligently with the times — but if the question is who has flip-flopped more, advantage Romney, indeed, advantage all of the Republican candidates over Gingrich. And if the question in the general election is who has been more steadfast to their stated principles, advantage (barely) Obama. Gingrich’s reinvention of himself may be commendable — but it is serious baggage in the Republican primaries, and still baggage in the general election.

3. And then there’s the personal baggage. Should it matter? Probably not. But did it matter to Gingrich when he participated in the assault on President Clinton for his tawdry trysts with Monica Lewinsky and others? Yes it did, even though Gingrich was having an affair with his now third wife at the time. And then there’s the disputed treatment of his former wives, which would ideally be irrelevant, but will not in a general election with minions dispatched to slam the Republican candidate by whatever means possible. Similarly his status as the only Speaker of the House to have been disciplined for ethics violations. I’ve taken a look at those ethics charges — 84 charges, of which 83 were dropped — and the one that stuck, something about failure to seek legal counsel and providing inaccurate information, seemed thin to me — but we’re talking about “baggage.” And in the general election, Gingrich would simply be “the only Speaker of the House to have been disciplined for ethics violations.”

It wouldn’t appear from this essay that I admire Newt Gingrich — but I do. I cannot help but admire a man who ended a 40-year Democratic Party monopoly on Congress, a man who properly shares credit for some of the achievements of the Clinton administration and who deserves credit for preventing some of the mischief Clinton would have done but for divided government.

But that doesn’t mean he should, or could, be president. If Republicans are serious about winning the White House in 2012, then this latest Anybody-But-Romney uptick by Newt Gingrich should promptly go the way of Bachmann, Perry and Cain. Mitt Romney can beat Barack Obama. I don’t see anyone else who can.