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.



Goodwin Liu should not be a Ninth Circuit judge

Presidential elections matter for many reasons — not least, but too little noticed, because of judicial nominations. Federal judges, and Supreme Court justices, typically serve for life. Their philosophies, their ideologies, their view of the Constitution, influence American law and politics vastly more than some of the congressional contests we so closely watch.

The Ninth Circuit United States Court of Appeals (covering California, Oregon, Arizona, Alaska and Washington) — by far the most liberal, and most-reversed, circuit in the land — does not need another liberal judge. To be sure, the nominees to the Ninth Circuit during this administration will be liberal — but there is liberal, and there is Goodwin Liu.

President Obama’s nomination of Goodwin Liu to the Ninth Circuit was blocked by Republican filibuster on Thursday. It was a principled vote. I do not say that lightly. I’ve written before that presidents are entitled to deference in their judicial nominations — precisely because presidential elections have consequences, and Americans must better appreciate judicial nominations as one such substantial consequence.

When Republican Senator Lindsey Graham voted in favor of President Obama’s nomination of Elena Kagan to the Supreme Court in the Senate Judiciary Committee, to the great consternation of many conservatives, I defended him. Liberal presidents get to do liberal things — and unless Elena Kagan was unqualified (she was not) or the sort of ideological liberal who threatened especially aggressive promotion of a liberal agenda (she was not), then the president gets his pick.

Goodwin Liu warranted Republican opposition. His published views are not only not mainstream — they’re the most far-reaching re-writing of the Constitution in contemporary legal and political dialogue.

Liu promotes not merely statutory, but constitutional, rights to health care, education, housing and welfare payments — meaning these entitlements, like rights to free speech, freedom from unwarranted search and seizure, etc., would be beyond the power of any future legislature to question or curtail.

“Rights to government assistance,” Liu insists, “are essential to liberty,” and therefore a fundamental right. And Europe proves it! The “experiences of other nations suggest that the existence of such rights is compatible with constitutionalism.” Goodwin Liu says every form of welfare is a constitutional right — meaning we cannot any longer debate the propriety or extent of any government hand-out — it’s a constitutional right. We neatly remove from the political realm, according to Liu, every argument about health care, education, housing, and welfare payments — because these are “constitutional rights.”

If ever there were a reason for Republicans — for Americans generally — to oppose a judicial nominee — this is it.

This is why presidential elections profoundly matter. President Obama wants Goodwin Liu on the Ninth Circuit, and the left is touting Goodwin Liu as a future Supreme Court nominee. And Goodwin Liu represents the most substantial change to our understanding of the Constitution in this generation.

Republican Senator Jeff Sessions says of Liu: “His record reveals that he believes the Constitution is a fluid, evolving document with no fixed meaning.”  No, only half-right — and in part, dangerously wrong. Goodwin Liu believes the Constitution “fixes” a host of “rights” and takes them forever out of the realm of political debate.

The road to serfdom begins with the kind of judiciary Goodwin Liu envisions.