Archive for Thursday, December 22, 2011

Gingrich targets independent judiciary

December 22, 2011


Washington — When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when, discussing Bosnia and Washington, D.C., street violence, he said, “People like me are what stand between us and Auschwitz.” (The Atlanta Journal-Constitution, Jan. 16, 1994). What primarily stands between us and misrule, however, is the Constitution, buttressed by an independent judiciary.  

But Gingrich’s hunger for distinction has surely been slaked by his full-throated attack on such a judiciary. He is the first presidential candidate to propose a thorough assault on the rule of law. That is the meaning of his vow to break courts to the saddle of politicians, particularly to members of Congress, who rarely even read the laws they pass.

Gingrich’s most lurid evidence that courts are “grotesquely dictatorial” is a Texas judge’s aggressive decision concerning religious observances at high school functions, a decision a higher court promptly (and dictatorially?) overturned. Gingrich’s epiphany about judicial tyranny occurred in 2002, when a circuit court  ruled unconstitutional the Pledge of Allegiance phrase declaring America a nation “under God.” Gingrich likened this to the 1857 Dred Scott decision that led to 625,000 Civil War dead. The Supreme Court unanimously overturned the circuit court’s “under God” nonsense. So, Gingrich is happy? Not exactly. He warns that calling the Supreme Court supreme amounts to embracing “oligarchy.”  

He says the Founders considered the judiciary the “weakest” branch. Not exactly. Alexander Hamilton called the judiciary the “least dangerous” branch (Federalist 78) because, wielding neither the sword nor the purse, its power resides solely in persuasive “judgment.” That, however, is not weakness but strength based on the public’s respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.

 Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich’s campaign against courts repudiates contemporary conservatism’s core commitment to limited government.  

Logically, Gingrich should regret the dictatorial Supreme Court decisions that have stymied congressional majorities by overturning portions of McCain-Feingold and other restrictions on political speech. Logic, however, is a flimsy leash for a mind as protean as Gingrich’s, which applauds those decisions — and the Kelo decision. In Kelo, the court eschewed dictatorship and deferred to the New London, Conn., City Council majority that imposed a stunning abuse of eminent domain. Conservatives were appalled; Gingrich, inexplicably but conveniently, says he is, too.  

Gingrich radiates impatience with impediments to allowing majorities to sweep aside judicial determinations displeasing to those majorities. He does not, however, trust democratic political processes to produce, over time, presidents who will nominate, and Senate majorities that will confirm, judges whose views he approves.

Although not a historian, Gingrich plays one on television, where he recently cited Franklin Roosevelt (and Jefferson, Jackson and Lincoln) as “just like” him in being “prepared to take on the judiciary.” Roosevelt, infuriated by Supreme Court decisions declaring various progressive policies incompatible with the Constitution’s architecture of limited government, tried to “pack” the court by enlarging it, and attempted to purge from Congress some Democrats who opposed him. Voters, who generally respect the court much more than other government institutions, re-elected those Democrats and so thoroughly rebuked FDR’s overreaching that Congress lacked a liberal legislating majority for a generation.    

To teach courts the virtue of modesty, President Gingrich would attempt to abolish some courts and to impeach judges whose decisions annoy him — decisions he says he might ignore while urging Congress to do likewise. He favors compelling judges to appear before Congress to justify decisions “out of sync” with majorities, and would sic police or marshals on judges who resist congressional coercion. Never mind that judges always explain themselves in written opinions, concurrences and dissents.

Gingrich’s unsurprising descent into sinister radicalism — intimidation of courts — is redundant evidence that he is not merely the least conservative candidate, he is thoroughly anti-conservative. He disdains the central conservative virtue, prudence, and exemplifies progressivism’s defining attribute — impatience with impediments to the political branches’ wielding of untrammeled power. He exalts the will of the majority of the moment, at least as he, tribune of the vox populi, interprets it.

Atop the Republican ticket, Gingrich would guarantee Barack Obama’s re-election, would probably doom Republicans’ hopes of capturing the Senate and might cost them control of the House. If so, Gingrich would at last have achieved something — wreckage, but something — proportional to his swollen sense of himself.      

Disclosure: This columnist’s wife, Mari Will, is an adviser to Rick Perry.    

George Will is a columnist for Washington Post Writers Group. His email address is


JayhawkFan1985 5 years, 10 months ago

Way to stay on topic. Perhaps you are suggesting the supreme court interfere with Obamas reelection just as they did Kerrys 11 years ago. You're name should be "hanging Chad"

JayhawkFan1985 5 years, 10 months ago

Obviously I was referring to the 5 members of the supreme court that ignored the rules when they installed Bush jr so it would have been Kerry's first election I was referring to. as Obama is president, that is why I said reelection their. I could have been more precise but I thought everyone would remember those events given the 8 years of horror that followed.

JayhawkFan1985 5 years, 10 months ago

How could I have been so stupid? I should have typed Gore, not Kerry...and I did it twice...

cato_the_elder 5 years, 10 months ago

No kidding. He really let it all hang out this time.

Romney-Rubio in 2012.

just_another_bozo_on_this_bus 5 years, 10 months ago

The judicial system is hardly immune to politics-- its rulings (both from the left and right) are based as much on ideology as on the interpretation du jour of the "original intent" of the constitution.

However imperfect our court system is, it still works as an effective if imperfect check on the excesses of the legislative and executive branches.

james bush 5 years, 10 months ago

I liked Gingrich until he talked enough to convince me that he's a ready, fire, aim kinda guy.

Fossick 5 years, 10 months ago

I liked Gingrich before 1996. Finest House Minority Leader of the last century, but not the guy you want in charge of anything that matters.

voevoda 5 years, 10 months ago

I'm still puzzling over Gingrich's comment comparing street violence in Washington DC to Auschwitz. Auschwitz wasn't an example of street violence. It wasn't a situation where government had ceased to function and gangs or militias took over, waging war on each other while terrorizing the non-combattants. Auschwitz was a Nazi concentration camp, established by a government obsessed with ideology, for the purpose of murdering people whose only crime was belonging to a group that the state had categorized arbitrarily as enemies. Given Gingrich's rabidly anti-Muslim rhetoric of last year, would he really stand against another Auschwitz?

jayhawklawrence 5 years, 10 months ago

It is unfortunate that so many in the Republican camp admire Newt Gingrich. It is a little bit like admiring Satan because he is so smart.

The reality is that it is difficult for a normal person to get their head around a guy like Newt because his ego is so large it blocks out the sun and another reason is that he is well schooled in the art and execution of propaganda techniques. In fact, he actually teaches others how to use propaganda methods.

If Americans are going to stand as the examples and protectors of liberty, they need to understand how and when they are being played for suckers.

Career politicians and their associated pools of parasites are well schooled in these techniques.

weeslicket 5 years, 10 months ago

not a quote: ... Although not a historian, Gingrich played one for freddie may and fannie mac...

beatrice 5 years, 10 months ago

And yet, he remains a Republican front runner. Amazing. It boggles the mind that the Republicans, in an election they could probably win if they had a halfway reasonable candidate, are running candidates who are this bad. This group is making the Democrat's 2004 selection of John Kerry look good. As Lewis Black said about Kerry, "The first time I heard him talk, I realized I didn't have enough bread crumbs to find my way home." Ugh.

If only Jon Huntsman had stayed out of the race until the last second, he would have been welcomed as a hero during the last few debates for no other reason than not being Romney, he would have won the nomination because he isn't going to fall flat on his face and, since he seems rather moderate, would likely have won the election.

I believe Romney will still get the nomination, because Gingrich is about as electable as John Edwards. The more the Republicans battle each other, the better Obama's chances of locking up a landslide reelection will be.

Paul R Getto 5 years, 10 months ago

"Amazing. It boggles the mind that the Republicans, in an election they could probably win if they had a halfway reasonable candidate, are running candidates who are this bad." === Good point, Bea. I'm not sure where Newt is going with all of this. Nixon said campaign from the right and govern from the center. He's on the wrong track with this attack on the courts, but it may be to pander to the Iowa gang of caucus folks. Wish we could get over the circus on both sidea and have real, open regional primaries that include a few states, then schedule them every 3 weeks or so from January to June in an election. Last person standing gets the brass ring. The way we do it now, with Iowa and NH setting the tone, has little to do with democracy and picking a good leader for either party.

jayhawklawrence 5 years, 10 months ago

I agree that Huntsman has the best chance of winning an election but no chance right now of winning the Republican primary.

Another factor to consider is that Americans need time. They need time to adjust to being unemployed and they need time to find a new job or career path.

They needed time to sort through the political rhetoric in the midst of an economic collapse and they needed time to re-evaluate their political loyalties.

The previous election occurred during an avalanche of negative propaganda from the Republicans regarding health care. Most Americans did not know what was in the health care bill. Now they are beginning to realize that the Republicans were using "fear of the unknown" to influence the voters and it was also a weak turnout. A lot of scared people came out and voted for the Tea Party.

With time, the truth will emerge and people will see more clearly what direction they want our country to go in. Americans have always proven to be wise enough to eventually make good decisions and the only wise decision was to find a balance between reasonable spending cuts and some tax reform which would include simplification and raising some taxes on the wealthy, closing some loopholes that large corporations have enjoyed as a result of the millions they spend on lobbyists like Newt Gingrich.

Americans will realize that Obama the rookie was not that bad and Obama after one term as President is not so bad either. I would welcome a Republican Party under the influence of someone like Huntsman and a version of Romney that is not trying to appease right wingnuts.

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