Ignoring judges was never all that popular in this country, and shouldn't be now.
I missed last Thursday’s debate where Newt Gingrich and Michelle Bachmann took aim at the Supreme Court, and indeed, the Federal Judiciary generally. But since then Newt has kept at it, and his answers make me incredibly nervous.
The principle of limited government means that government must be strictly limited – even if you like what the government (or the people currently in charge) would do with unlimited power.
Additionally, any stable and free government requires predictable rules and institutions. Liberty is not safe in a state of anarchy, but neither can it exist where powerful political figures can simply create, ignore, or “interpret” laws to mean whatever happens to be convenient at the time.
To be sure, the federal courts often get accused of doing exactly this, and often those accusations are even deserved. But Newt’s “solutions” to this real problem ignore the above principles, and would in the end be much, much worse than the status quo.
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“The courts have become grotesquely dictatorial,” Mr. Gingrich said at a candidates’ debate Thursday, something he would correct by calling judges before congressional inquiries, abolishing or defunding courts whose constitutional interpretations differ from his and impeaching judges not solely for criminal or ethical misconduct, as has been the practice, but also for their rulings.
Newt also said he would simply ignore rulings he didn’t like, which could also meet the definition of “grotesquely dictatorial”.
The problem with this, of course, is that it completely eliminates any independence of the judiciary. It destroys the rock-paper-scissors nature of our federal government, and makes the judiciary a mere employee of the Executive.
The question is then begged – who do you turn to for relief when the executive gets out of hand? If Newt Gingrich can either harass the courts into submission or ignore them altogether, then so can Barack Obama. Or Eric Holder. Or on the state level, any ol’ county prosecutor or state Attorney General. Our Attorney General has already shown she’s willing to bring baseless criminal charges against a potential political rival – can you imagine if there were no independent judge to throw such a case out?
What Gingrich is advocating here is nothing short of lawlessness. No one who claims to believe in limited, accountable government should even be flirting with this sort of nonsense.
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Conservatives fall into this trap most often in the realm of criminal law and national security. I am a national security hawk, but I draw the line at indefinite detention of American citizens caught allegedly engaged in terrorist attacks on American soil, and I’m incredibly disappointed that so many Republicans voted for something that clearly has no Constitutional support. I’m not opposed to the death penalty, but the finality of it; the fallibility of prosecutors, defense attorneys, and judges; and the fact that there have been so many exonerations that only happen many years after the original trial make me very relieved we have a lengthy appeals process for such cases.
I’m a limited government guy, because I understand that even the best human beings are subject to sin, greed, corruption, laziness, incompetence, and thoughtlessness. That includes the humans who work in government, from local cops to EPA regulators to the Contractor’s Board to the President of the United States. I don’t want the federal government making health care decisions for me any more than I want them to collect and store my DNA without due process. And that’s true no matter how much I want people to be healthy, or how badly I want violent criminals or terrorists off the streets.
For government to be limited, there must be some entity who can do the limiting. The courts are (and I’m being generous here) imperfect at this. But if not them, who? Politicians pandering for votes?
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George W. Bush’s most important and lasting legacy, in my view, will be his judicial picks, specifically Justices Roberts and Alito. I don’t always agree with them, but they are incredibly intelligent and accomplished jurists who understand the philosophical foundations of our Constitution. They understand that there are limits to what the government can do, and usually rule accordingly.
There is already a check on the federal judiciary – the President appoints judges, and the Senate confirms them. Elections have consequences when it comes to the state of the law, and frankly, they should. Indeed, I was incredibly disappointed in 2008 that John McCain didn’t make a bigger issue out of the fact that the next President would be picking Supreme Court justices and populating the entire federal bench.
But as I’ve said before, the answer is better, more principled judges with a history of taking limited government positions. It is rather not to slag the entire judiciary or threaten to perp-walk various judges in handcuffs before some investigative committee if they don’t toe the Presidential line.
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There’s a lot I like about Newt Gingrich. There’s a lot I don’t, but I can get past Pelosi’s couch. I appreciate his fighting spirit, and can ignore election season hyperbole.
President Obama not only ignores the other branches of government on a regular basis, but has and will continue to appoint judges who will provide a legal fig leaf for his lawless and absurd “there really aren’t any limits to government” Constitutional philosophy. The federal judiciary will be in safer hands under President Gingrich than it is now.
But of all the legitimate concerns conservatives have with Newt in choosing their nominee, this should perhaps be the most significant. It certainly is for me.
