GOP PRESIDENTIAL hopeful Newt Gingrich recently made disturbing comments regarding the judiciary. He proposed that Congress should be able to impeach judges whose decisions he believes to be wrong. If elected, he would abolish courts that displease him, ignore Supreme Court decisions he doesn’t approve of, and order US marshals to arrest judges to force them to explain their decisions to Congress.
Attacking the federal judiciary is unquestionably popular in some precincts in America. And no reasonable person can dispute that federal courts have sometimes overstepped their bounds. Judges have used their power to twist the law in novel ways, and sometimes to make new law rather than sticking to their proper task of interpreting statutes and the Constitution.
As an example, Gingrich points to a 2002 Ninth Circuit opinion declaring that the words “under God’’ in the Pledge of Allegiance were unconstitutional. But what is the proper remedy in such cases? For one thing, the courts themselves are often self-correcting. Gingrich fails to mention that the decision was overturned by the Supreme Court - unanimously.
The Constitution also provides that judges can be impeached by Congress for misconduct. That’s not easy to do, but in December 2010 we impeached a federal district judge in Louisiana after he was convicted on multiple counts of corruption.
This case was just the eighth time in history a federal judge has been removed by Congress, and the framers of the Constitution made it difficult for good reason. If it were easy, judges would be subject to the whims of Congress and the president.
Our system of checks and balances, the foundation of our constitutional order, would be undermined.
Yet under Gingrich’s scheme, that is precisely what would happen. Judges would be deciding cases while constantly looking over their shoulder at the possibility of retaliation from politicians. Our system of checks and balances, the foundation of our constitutional order, would be undermined. Public confidence in the impartiality of the courts would be shattered. If a president and majorities in Congress could simply overturn the constitutional interpretations of the Court, and if judges could be arrested for displeasing politicians in the other two branches, we would be placing our basic rights in jeopardy. The rule of law would be destroyed.
Gingrich styles himself a historian, but he is either blissfully unaware that the Founding Fathers deliberately established our government with three co-equal branches of government, or he is fully aware of that elementary fact and yet is pandering to the right-wing extreme element in our own party. I do not know which is worse. I do know that an independent judiciary possessing equal power with the legislative and executive branches is essential if our government is to operate as it was intended.
Do we want to dismantle our constitutional structure and replace it with a court system that is not only subservient to the executive and legislative branch, but must act in fear of them?
Fortunately, Gingrich’s scheme has found few takers. Indeed, people from all sides of the political spectrum are alarmed, including conservatives. Columnist George Will called Gingrich’s plan a “descent into sinister radicalism.’’ Michael Mukasey, attorney general under George W. Bush, said it “would reduce the entire judicial system to a spectacle.’’
Presidents have the right to appoint judges of their choosing, so long as they are qualified and understand and respect the limits of their responsibilities. In the Senate, I have voted to confirm nearly 90 percent of President Obama’s judicial nominees. I also take the “advice and consent’’ responsibility seriously, and have voted against nominees whom I thought lacked experience or possessed views outside the mainstream.
Once confirmed, however, federal judges should be able to operate independently and outside the fray of partisan politics. When judges fall short, as will sometimes happen, they should be criticized. On those rare occasions where they misbehave, they should be impeached. That is the way the system was designed.
An independent judiciary is a cornerstone of our democracy. That Gingrich would make the courts tremble at the thought of retaliation from the president or whatever political party has the majority at the time is a very dangerous notion that threatens the founding principles of our government. If the former speaker doesn’t publicly disavow these views, the voters in New Hampshire and elsewhere will disavow his views on this issue.
Scott Brown is a US senator from Massachusetts.