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December 18, 2011

What should we make of Newt Gingrich's latest round of court bashing?

The question in the title of this post is prompted by latest comments from the latest GOP front-runner, some of which are captured in this Los Angeles Times piece headlined "Newt Gingrich says he'd defy Supreme Court rulings he opposed." Here is how the piece begins:

Newt Gingrich says as president he would ignore Supreme Court decisions that conflicted with his powers as commander in chief, and he would press for impeaching judges or even abolishing certain courts if he disagreed with their rulings. "I'm fed up with elitist judges" who seek to impose their "radically un-American" views, Gingrich said Saturday in a conference call with reporters.

In recent weeks, the Republican presidential contender has been telling conservative audiences he is determined to expose the myth of "judicial supremacy" and restrain judges to a more limited role in American government. "The courts have become grotesquely dictatorial and far too powerful," he said in Thursday's Iowa debate.

As a historian, Gingrich said he knows President Thomas Jefferson abolished some judgeships, and President Abraham Lincoln made clear he did not accept the Dred Scott decision denying that former slaves could be citizens.

Relying on those precedents, Gingrich said that if he were in the White House, he would not feel compelled to always follow the Supreme Court's decisions on constitutional questions. As an example, he cited the court's 5-4 decision in 2008 that prisoners held by the U.S. at Guantanamo Bay, Cuba, had a right to challenge their detention before a judge. "That was clearly an overreach by the court," Gingrich said Saturday. The president as commander in chief has the power to control prisoners during wartime, making the court's decision "null and void," he said.

But the former House speaker demurred when asked whether President Obama could ignore a high court ruling next year if it declared unconstitutional the new healthcare law and its mandate that all Americans have health insurance by 2014. Gingrich said presidents can ignore court rulings only in "extraordinary" situations.

On his website, Gingrich spelled out his views on courts. "While abolishing judgeships and lower federal courts is a blunt tool and one whose use is warranted only in the most extreme of circumstances … it is one of many possibilities to check and balance the judiciary," he wrote. "Other constitutional options, including impeachment, are better suited" to check wayward judges.

"In very rare circumstances, the executive branch might choose to ignore a court decision," he wrote.

Gingrich also said that as president he might ignore a Supreme Court ruling if it held gays and lesbians had the right to marry. "The Constitution of the United States has absolutely nothing to say about a constitutional right to same-sex marriage. Were the federal courts to recognize such a right, it would be completely without constitutional basis," he wrote.

While his critique of the courts has been popular on the right, even some conservatives object to Gingrich's proposals on abolishing courts or impeaching judges over their decisions. Conservative legal analyst Edward Whelan called Gingrich's proposal for abolishing judgeships "constitutionally unsound and politically foolish."

Given Gingrich's prior criticisms of a "broken" criminal justice system that relies too much on prison (see here), I cannot help but wonder if this might mean that a President Gingrich might sometimes seek to release some federal prisoners early (or seek to impose some alternative form of punishment) if and whenever he did not like a court-imposed sentence.  Of course, the clemency power in the Constitution makes the use of this kind of executive check on the courts constitutionally sanctioned, but I sure would like to see a President Gingrich breathe a lot of new life into this power to check the sentencing work of courts in our "broken" criminal justice system.

Some recent and older related Gingrich posts:

December 18, 2011 at 12:23 PM | Permalink


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I don't think Gingrich has even thought through what his judge bashing means for criminal law, immigration backlogs, etc., and don't think he means he'd use clemency as you describe. There is a tangential relation, though, between his comments about abolishing courts and criminal justice: As long as the Drug War and immigration cases dominate federal court dockets, he can't really go after judges as he describes. De-criminalize on one or both those fronts, however, and you could start to talk realistically about eliminating some federal courts. So if he really wants to go after the courts by abolishing judgeships, decriminalization in one or both of those two areas may be the only realistic way to do it. Otherwise, certainly in my neck of the woods, the dockets are just too large.

Posted by: Gritsforbreakfast | Dec 18, 2011 12:45:24 PM

I have discussed the person who cuts my hair. 2000 hours of training. A 100 question exam on skin, bones, diseases, and other difficult subjects. Cutting the hair of 3 types of people in front of a licensing official. Doing facials, manicures, and other tasks in front of a licensing official.

Is judging as difficult as cutting hair, in terms of decision making, responsibility, impact on others, including safety? Why are know nothing lawyers able to decide complex technical questions, family breakups, the fate of ultra-violent criminals? They make these decisions without a minute of training, testing, or even later accountability. So how do they make decisions? Fine, if thy had any sense. They use their sicko personal feelings. They are mental cripples from law school, indoctrinated into supernatural beliefs, with no principal validated by scientific evidence or even by logic, or common sense. So these decisions have the validity of two year olds throwing things about in a room, with no restraint by permissive parents. The parent of the court is the Congress, allowing this horrible child to go on uninterrupted in its destructiveness.

So Gingrich is on the right track. I would go further. Arrest the entire hierarchy, for their insurrection against the constitution, have an hour's fair trial, and summary executions. Shoot them in the back of the head in the court basement. There would be no accusations of collateral corruption, but a reading of their decisions as the sole evidence of treason. To deter.

In fairness to the court, the ultimate power and responsibility for the utter failure of all self-stated goals of all law subjects is the Congress. This body is totally dominated by rent seeking lawyers. Even if the representative is not a lawyer, his staff writes the legislation and persuades his decisions. The election is rigged against dissidents. The representative can thrown out by the electorate, the staff remains the same.

As an alternative to horrid violent revolution, torts. End all self-dealt immunities including those of the Congress. Allow law suits when their carelessness and ignorance cause damage to individuals. Deter these incompetent tortfeasors. Nor should the innocent taxpayer be forced to pay. All judgments should come from the personal assets of the tortfeasors.

So a bullying Congress threatened their charters, and forced banks to give mortgages to irresponsible Democrat crack heads in the ghetto, let the Congress pay for their losses.

I have shown immunity grows the entire industry, not just the defendant, and how liability has shrunk the entire industry in historical natural experiments. Tort liability will rapidly shrink government. Tort liability is the royal road to smaller government.

Posted by: Supremacy Claus | Dec 18, 2011 1:01:03 PM

Gingrich should keep his mouth shut on the point. You don't announce you're going to defy the Supreme Court--you just do it.

Case in point--all the Cuban criminals who were freed by an idiotic Supreme Court ruling a few years back--you round them up, send them to GTMO, and push them across the fence. And then you announce it.

Posted by: federalist | Dec 18, 2011 1:01:32 PM

Gingrich is dangerous and entirely unprincipled.

Under his "reasoning," Gore, the Clinton Administration, and the State of Florida could have ignored Bush v. Gore.

Gingrich won't say that Obama could ignore a SCOTUS decision striking down Obamacare, but he says he, as President, would be able to ignore SCOTUS decisions granting habeas relief/rights.

So much for checks and balances and separation of powers.

Posted by: Calif. Capital Defense Counsel | Dec 18, 2011 2:28:15 PM

i agree all this proves is he has no business in politics let alone president. Last time i looked the U.S SUPREME court was created by the same document that made his useless job. Not a damn thing he can do about it. His ONLY input on that body is in the appointment process after that he's out of luck.

What needs to happen is the U.S SUPREME COURT needs to issue an arrest warrant for his ass based on his TREASONOUS STATMENTS!

Posted by: rodsmith | Dec 18, 2011 3:14:39 PM

federalist understands the GOP motto: subterfuge.

Posted by: George | Dec 18, 2011 4:49:21 PM

"What should we make of Newt Gingrich's latest round of court bashing?"

Not much, since there isn't going to be a President Gingrich, and he's not going to get the nomination, either.

The best Republicans (Rubio, Ryan, Christie, Thune) all took a pass, so there's a weak field. But not weak enough to nominate Newt.

Posted by: Bill Otis | Dec 18, 2011 4:50:30 PM

Of course, we conveniently forget the CURRENT administration's rather capricious record of ignoring federal law decisions. Focusing on ignoring Supreme Court decisions may be a bit troubling, but when the current administration has already ignored federal decisions with regard to TARP, Obamacare, "Fast and Furious", voting irregularities, and other decisions that are given, at best, a ho-hum approach by the mainstream media shows that people think with their partisanship more than their constitutional knowledge. Bottom line: Until we get a REAL constitutionalists in all three branches of government, the argument is strictly an exercise in politics, and not in real fundamental change.

Frankly, the only constitutionalists that truly exist are in the Tea Party wing of the Republican party, or the Libertarian party. Establishment republicans (Both Bushes, Karl Rove, Boehner) and all parties left of the center have proven to be voracious shredders of constitutional authority.

Posted by: Eric Knight | Dec 18, 2011 6:12:35 PM

Congress should try to deter crazy Justices. Justice Taney in Dred Scott, applied judicial review for the first time in the US. The result, a needless, and catastrophic Civil War. His decision judicial review violated Article I Section 1 of the constitution. It reversed the Missouri Compromise that prevented war for 20 years. It violated a ratified international treaty, the one settling the border with Canada, the Webster- Ashburton Treaty of 1842.

It set off war. Lincoln issues an arrest warrant for Tanney. A federal marshal had his hand extended to take it. A vile, filthy, weasel, vermin lawyer persuaded Lincoln to not hand it over, at the last second. This tiny ort of judicial accountability may be still be viewed in the Federal Marshall museum.

After the war began, traitor judges allowed habeases for accused Southern spies in Maryland. Federal troops entered the court to arrest these traitors on the bench. When a judge resisted, he was pistol whipped, and thrown in a rough prison, covered in blood.

I would like to see Gingrich get elected, and emulate President Lincoln, in courage and wisdom.

Needless to say, the Dred Scott decision is never covered in law school in Constitutional Law classes. I bet what I said above is known to every Am History AP high school student (where I got my knowledge), but no lawyer here, not even one educated at Harvard Law knows any of this. True even if learned in high school, the memory has been erased by the criminal cult indoctrination of the Hate America treason education camps that are our law schools. This is similar to having 3 pages and spending an hour on Wold War II in Japanese high school history class.

Question: Just how much lawlessness, treason, and catastrophic consequences to the American people should be tolerated before a Supreme Court Justice can be called to account for his decision, and not for a politically driven weasel collateral corruption charge?

Posted by: Supremacy Claus | Dec 18, 2011 6:29:29 PM

It's kind of funny that someone who, in essence, believes that Marbury v. Madison is not good law identifies as a conservative.

Posted by: dm | Dec 18, 2011 9:54:34 PM

Please read about the problems with Marbury v Madison. It is so riddled with legal and professional responsibility problems, it should be invalidated for illegality. Again, none of this is new, secret or creative. Yet, lawyers know nothing about these problems, and treat it as established legal Gospel. Even judicial review should not be assumed as a principle, since it was invented by that royalist toadie, Sir Edward Coke, just made up from his rear end, without validation anywhere or anyhow, at the point of a sword.


Posted by: Supremacy Claus | Dec 18, 2011 10:36:22 PM

Q. "What should we make of Newt Gingrich's latest round of court bashing?"

A. << Luke 23:34 variation >>:
"Voters forgive Newt, for he does not know what he does not know.

"Forgive him but do not vote for him."

Posted by: Docile Jim Brady | Dec 19, 2011 9:01:49 AM

It's one of things Republican demagogues need to say to convince mostly poor, mostly ignorant Americans to vote against their own best interests.

It's a reminder Gingrich -- with his acerbic, thugish Contract for America -- was perhaps the one individual most responsible for poisoning the atmosphere in Washington to the point where it basically ceased to function.

Posted by: John K | Dec 19, 2011 9:57:17 AM


Who do you think it will be? Romney?

As for Newt, this seems like wildly unprincipled principle he's advocating. If he limited himself to areas of national security under a unitary theory he would at least be consistent. Getting into the gay marriage debate is a bit silly. It might be a judicial overreach to do such a thing [in fact, it would be] but not one that the president should just ignore. I don't agree with him on national security stuff either but at least that would have an academically defensible academic principle.

Posted by: Robert Barnhart | Dec 19, 2011 10:32:26 AM

John K,

Perhaps you are done mourning the fall of the Berlin Wall and have moved on to weep over the passage of the Contract for America.

Strangely though, the Contract was sufficiently positive for democratic President Bill Clinton to claim credit thereof.

Posted by: Adamakis | Dec 19, 2011 10:36:09 AM

Frankly (sorry, Newt), nothing more than the Ghost of Nixon here. If the POTUS does it, then, by definition, it's not illegal. Dangerous in the 1970's, dangerous now.

Posted by: ALB | Dec 19, 2011 10:38:29 AM

It's been clear for some time that the anonymous commentator who calls himself "federalist" isn't too bright. Now he says he's in favor of lawlessness. Wow. Even Bill doesn't go that far.

Posted by: lawyer2 | Dec 19, 2011 11:23:19 AM

Adamakis...if Gorbachev changes his mind about the Berlin Wall and runs for president of Russia with a promise to restore The Wall, I'll resume mourning for that.

As for Clinton and the Contract With America, remnants of the Contract that weren't killed in the Senate or heavily revised in negotiations with the Clinton Administration were, in fact, vetoed by Bill Clinton.

Posted by: John K | Dec 19, 2011 12:42:18 PM

Lawyer2, please point out something I have written that shows me to be not too bright. Second, please point out how my proposed reaction to SCOTUS' opinion that armed criminals should be forcibly repatriated to Cuba is "lawless."

Posted by: federalist | Dec 19, 2011 12:57:17 PM

Robert Barnhart --

It has to be Romney by a process of elimination. Indeed I might wind up being a contributor. A few friends of mine know him and say he's actually pretty good. His Senate campaign against Kennedy was a disaster, but I think (and hope) he's improved since then.

The reason the Repbulicans should nominate him is simple: The guy who wins the election next year is the guy who is NOT the focus of scrutiny. If Obama is the focus of scrutiny, he loses, because the country is in bad shape, headed in the wrong direction, over its head in debt, losing influence abroad, and justifiably angry about it. If Romney is the focus, he loses, since many people believe that if he has any fixed beliefs, they're awfully hard to detect. He seems like a standard-issue politician. He has the Romneycare problem. He does not excite the Republican base, and actually winning a close election (which this will be) requires foot soldiers. Romney will have trouble recruiting them.

The basic reason to nominate Romney is that he's bland, and thus less likely to be the focus of attention. If I'm right, that will be enough to win, what with the country in its current condition.

Gingrich is plenty smart and could get in Obama's face in a debate. Romney won't, which will hurt him. But Gingrich thinks even more of himself than Obama thinks of HIMSELF, which is saying something. Sooner or later he'll say something that will implode his candidacy.

By any conventional measure, Obama should be toast (look at his "Deserves Reelection" numbers, the unemployment rate, and the direction-of-the-country polling -- all of them classically good predictors), but these are unconventional times, and the opposition is weak, so this one is hard to call this far out.

Posted by: Bill Otis | Dec 19, 2011 1:18:52 PM

lawyer2 --

Fortunately for me, if not for him, I have had the opportunity to get to know federalist personally. He is exceptionally bright, and has the academic achievement to prove it (even if it were not evident from analytical quality of his comments).

As for lawlessness, BY FAR the most frequent example of the claimed right to disregard the law is the view of drug legalizers that they (and anyone else) is free to consume whatever drugs they want notwithstanding that they are patently illegal under the CSA -- and that anyone who says otherwise is a fascist.

Posted by: Bill Otis | Dec 19, 2011 1:27:59 PM

Weren't some of these elitist, radically un-American, activist judges responsible for handing over the 2000 election to GW, and the position that corporations are Homo sapiens?

How would Gingrich feel if Obama decided to impeach and replace the 5 right-wing Supreme Court justices with more liberal-leaning justices?

Posted by: Huh? | Dec 19, 2011 1:50:34 PM

Huh? --

"How would Gingrich feel if Obama decided to impeach and replace the 5 right-wing Supreme Court justices with more liberal-leaning justices?"

He would feel like Obama just handed the election to the Republicans.

Posted by: Bill Otis | Dec 19, 2011 2:40:54 PM

Last time I checked the Constitution, the impeachment power was vested in Congress, with roles to be played by the House and the Senate.

I'm not quite sure how Obama could just up and decide to impeach any federal judge, unless Congress was behind him.

Posted by: Calif. Capital Defense Counsel | Dec 19, 2011 3:13:15 PM

"You don't announce you're going to defy the Supreme Court -- you just do it."

This indicates lawlessness. The fact that you need me to explain this to you reinforces my view that you are not very bright.

If you are in fact bright, as Bill says he personally knows you to be, it is not evident from the analytical quality of your comments.

Posted by: lawyer2 | Dec 19, 2011 6:58:01 PM

Ugh, lawyer, you really are a dumb one. I wouldn't have thought I would have had to go into a detailed explanation.

The specific example I gave was lawful defiance, i.e., getting around a court order in an in-your-face kind of way.

Posted by: federalist | Dec 19, 2011 7:15:19 PM

Otis: "He would feel like Obama just handed the election to the Republicans."

Obama could shit on John "Boner" Boehner's head on national TV and still get re-elected.

Posted by: Huh? | Dec 19, 2011 9:35:11 PM

Calif. Capital Defense Counsel: "I'm not quite sure how Obama could just up and decide to impeach any federal judge, unless Congress was behind him. "

Tell that to Newton... he don't get it.

Posted by: Huh? | Dec 19, 2011 9:36:19 PM

You blog is so lovely that speak the words right out my month. I bookmark you so that we can talk about it in details, I really can’t help myself but have to leave acomment, you are so good.

Posted by: Tim Tebow Jersey | Dec 19, 2011 11:46:59 PM

Huh? stated: "...and the position that corporations are Homo sapiens?"

You do realize that the idea of corporate personhood has been around for at least 400 years, correct? And that it has been part of American jurisprudence since early 1800's?

Posted by: TarlsQtr | Dec 20, 2011 12:35:56 PM

Bitchslappin is fun, isn't it? Lolz. Check out this video from Canadian comedian Josh Rimer which I found on YouTube! http://youtu.be/yDCk3NN_HAs

Posted by: alex | Jan 9, 2012 12:47:24 PM

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