Newt Gingrich's Crusade Against the Courts

As I've pointed out before, politicians love issues that allow them to exploit fears and emotions without alienating large blocs of voters. Few such issues have given conservatives as much mileage in recent years as immigration, and Newt Gingrich should be commended for breaking from the ranks. Not only has he articulated a humane, reasonable immigration policy, he has also rejected one of the most reliable tools in the conservative arsenal for scoring cheap political points. So he uses the courts instead.

Gingrich describes his attitude toward the courts in section nine of his 21st Century Contract with America, which begins with the intriguing proposition that the Constitution serves as both the framework for the federal government and a set of power rankings:

The Judicial Branch did not come until Article III because the Founders wanted it to be the weakest of the three branches.

Thus, the Legislative and Executive branches get to square off for the championship, while the Judiciary will take on the Ratification Clause in the Fiesta Bowl.

Anyway, back to Newt:

The Federalist Papers explicitly recognized that the Judicial Branch would be weaker than the Legislative and Executive Branches. In Federalist 78, Alexander Hamilton wrote reassuringly that the Judicial Branch would lose any confrontation with the two elected branches:

“the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.”

The Founding Fathers felt strongly about limiting the power of judges because they had dealt with tyrannical and dictatorial British judges.

A good rule of thumb: Never take a 25-word excerpt from a 223-year-old essay at face value. Short and to the point? Just one semicolon? No pointlessly elaborate double- or triple-negations? That's not the Alexander Hamilton I know. Here's the whole sentence (and here's a link to the full text):

It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.

Something tells me Newt didn't omit that last clause for the sake of brevity. It seems Hamilton's point wasn't that the judiciary should be weak, but that because it neither writes laws nor commands armies it is inherently weak, and therefore additional protections must be in place to ensure its equality with the other branches.

Newt's insistence that the judiciary was intended to be the weakest branch is, at best, dubious, but even more dubious is his insistence that the judiciary is now the strongest:

Since the New Deal of the 1930s, however, the power of the American judiciary has increased exponentially at the expense of elected representatives of the people in the other two branches. The judiciary began to act on the premise of “judicial supremacy,” where courts not only review laws, but also actively seek to modify and create new law from the bench. The result is that courts have become more politicized, intervening in areas of American life never before imaginable.

Really? The power of the judiciary has increased at the expense of the other two branches? We are talking about the same legislative branch that now uses the Commerce Clause to do any damn thing it wants, right? And the same executive branch that has decided it can unilaterally go to war? If anything, the courts have struggled to keep up.

But that's not how Newt sees it, obviously, and his campaign recently released an issue paper detailing his fears. From the introduction:

If the Supreme Court ruled that 2+2=5, would the executive and legislative branches have to agree? Would we have to pass a Constitutional amendment to overrule the Court and reassert that 2+2=4?

Yes, we would. And while we're at it, we should also pass an amendment prohibiting toddlers from serving on the Supreme Court.^[1]

Still, Newt's right that it can be scary to think about how much power is held by just nine people. And they aren't even elected, so those seats can be held by anyone! Well, anyone who can secure the nomination of the President, who is elected by a college of 538 citizens, who are in turn elected by the voters of each state, and who can then secure the approval of the Senate Judiciary Committee and at least 51 members (60 if the filibuster's in play) of the full Senate, each of whom are elected by the voters of their states.

Honestly, the more I think about it, the scariest thing about the Supreme Court isn't that the Justices are unelected; it's that they're chosen by the people who are.^[2]

But that's a discussion for another time. Much of the issue paper (which, at 54 pages, could really use a table of contents) is devoted to making the case that on issues like national security and marriage (and probably others—seriously Newt, table of contents next time) the courts have abrogated their duty to uphold the Constitution. These are, of course, among the most controversial issues of our time. Legal scholars have written thousands of pages in support of a variety of approaches to the constitutional questions they present. So when Newt says "[w]ere the federal courts to recognize such a right [to same sex marriage], it would be completely without constitutional basis," he's stating an opinion, not a universally-accepted truth. 2+2=4 is an accepted truth. That the Fourteenth Amendment's guarantee of equal protection doesn't extend to discrimination based on sexual orientation is not.

And that's what this all comes down to. The problem he's describing—judges usurping the other branches, creating their own laws, ignoring the Constitution, etc.—is very serious. It just isn't real.^[3] Clearly, Newt doesn't like some of the interpretations courts have applied to the Constitution, and in many cases neither do I, but I remain unconvinced that there's an epidemic of judicial roguery going on. There is, perhaps, an epidemic of judges interpreting the Constitution in ways Newt Gingrich disagrees with, but the solution to that is not to launch a crusade against the judiciary. The solutions are to (a) become President and appoint judges you like, and (b) calm the hell down, because there will always be people in positions of power who disagree about things.

But then he'd have to find something else to get people riled up about.

1. Of course, the Court doesn't have jurisdiction over disputes of simple arithmetic, but you wouldn't expect a toddler to know that.

2. Interesting that the officials who play a role in the judicial nominating process—the President and the members of the Senate—originally weren't elected by the people. Senators, of course, were chosen by state legislatures until 1913. The President is elected via the intermediary of the Electoral College, and a state's Electoral College delegation was, and still is, selected by a method of each state's choosing. Until around the 1820s a lot of states let their legislatures make that decision as well.

3. Well, some of it is real, but the severity is vastly overstated. Aside from the preposterous 2+2 hypothetical, the most absurd judicial overreach I've seen Newt talk about is that story out of San Antonio, where Judge Fred Biery ruled that a high school valedictorian couldn't include a prayer in her speech and that the school couldn't use terms with religious connotations like "amen" or "benediction". The ruling was overturned by a higher court two days later.
    So now Newt wants that judge impeached, which is fine, I guess—I suspect there's more to the story that we aren't hearing, but I don't care enough to find out—but how is that a major issue? (Answer: It's not. But the more Newt talks about it, the stronger the implication that this is a widespread problem, rather than a few isolated events.)

Sharia Law Comes to Florida

What could possibly be the explanation for this?

"This case," the judge wrote, "will proceed under Ecclesiastical Islamic Law."

[Judge Richard] Nielsen said he will decide in a lawsuit against a local mosque, the Islamic Education Center of Tampa, whether the parties in the litigation properly followed the teachings of the Koran in obtaining an arbitration decision from an Islamic scholar.

It certainly appears, on the surface, to be yet another victory for the forces of radical Islam, which have become quite adept at using the weak and simple-minded to their advantage.

To all of the naysayers on the left who say that Sharia can never come to the U.S., here is the latest example of how it is slowly and stealthily creeping into our judicial system--in this case, courtesy of a foolish, non-Muslim judge (known as a useful idiot in Lenin's days).

But how did this happen? Is the judge blinded by political correctness? Or ignorant of the horrors of Sharia law? Or both?!

Several bills already have developed around the nation, including in Oklahoma, Missouri, Tennessee and Florida, to prevent judges from applying Shariah, which includes penalties such as beheading for leaving Islam, in the government's court systems.

In Oklahoma, voters with a 70-percent majority approved such a ban, but U.S. District Judge Vicki Miles-LaGrange blocked it after the Council on American-Islamic Relations argued the move was "anti-Islam."

The issue also has been the subject of a lawsuit in Michigan, where city officials in Dearborn are accused of allowing Shariah to be used to block Christians from discussing their faith at the city-sponsored Arab Fest. Under Shariah, it is illegal for a Muslim to convert to another faith.

Come to think of it, how do we know the judge is only a passive participant? Maybe he prefers Sharia law. And therefore hates America.

Whether the American people consent or not, multiculturalist elites have decided to ram sharia down our throats, apparently.

Or maybe, just maybe, Richard Nielsen, like the vast majority of judges, knows what he's doing.

People can agree to be ruled by the Wizard of Oz in arbitration if they want to. These people agreed to be ruled by Sharia law… What's happening is that the loser is saying he didn't really agree to arbitration in the first place, and now he wants to get a do-over in front of a judge with Florida law.

This happens all the time and this is why the judge wants to make clear his ruling. In other words, the judge is not sanctioning Islamic law as a basis for absolving disputes here among all people. These were two groups of people that agreed to mediation, arbitration, they wanted to do it under Sharia law, that was their contract, the judge said fine.

That's right. Rush Limbaugh, voice of reason.^[1] I didn't see it coming either.

1. That's not to say that Judge Nielsen made the right decision. I have no idea if it was the right decision, as I haven't seen the disputed contract, heard the arguments made by the opposing sides, or, most importantly, spent more than a decade adjudicating disputes over arbitration agreements. You know who else hasn't done those things? Every reactionary blowhard out there calling for impeachment.

Judicial Activism

I don't get why Wednesday’s federal court ruling is such big news. I mean, it’s certainly going to have a major impact on a lot of people, but it’s not even remotely surprising, and neither are the reactions. Must we go through this charade every time?^[1]

The process goes like this:

1. A Republican legislature passes a constitutionally-dubious law, which is praised by conservatives as a bold re-affirmation of American values.
2. The law is challenged. The lawsuit is immediately deemed frivolous and politically-motivated, and the challengers are decried as overly-litigious leftists who will stop at nothing to undermine everything this country stands for.
3. The law is overturned on grounds that, while often debatable, are hardly ever patently flawed or ideologically-driven.
4. Conservatives are shocked—Shocked!—and appalled—Appalled!—at once again being foiled by an “activist” judge employing flawed and/or ideologically-driven reasoning.

More often than not, conservatives jump straight from Step 2 to Step 4. They have no interest in dwelling on Step 3, because what if the ruling makes sense? Then there could be no Step 4, and we all know that’s the best part. And the reaction to the Arizona decision has been a truly inspired effort—a frenzy of mischaracterizations and misinformation. Here’s Rush Limbaugh, as soon as the news came out:

The PDF of this ruling is 36 pages and there's no way that I'm going to be able to go through all 36 pages prior to the program ending, but I know what went on here.

[…]

I don't know how you look at this with any sort of common sense and come to the ruling this woman came to. But, she didn't. She's a leftist and she made an activist decision, not a judicial decision.

So, based on one court order—the bulk of which Rush hadn't had the chance to read—Susan Bolton is a leftist, activist judge with a severe common sense deficiency.^[2]

Of course, it doesn’t matter if he reads it—it wouldn’t change the rhetoric. The fact is, it’s a rational, well-supported ruling. It doesn’t say Arizona can’t do anything about immigration, it says they’ll have to do something that doesn’t flood the federal government with requests for verification of immigration status. It doesn’t say the police can’t attempt to verify immigration status when there is reasonable suspicion of unlawful presence, it simply says they can’t be required to.

I could go on, but I'll stop there. Let’s get over this judicial activism nonsense and start focusing on the real villains.

1. No, of course not—but let's go through it anyway.

2. A quick search of his site found no references to Judge Bolton before Wednesday, so I think it’s safe to assume Limbaugh hasn’t been closely following her career and crafting well-founded opinions about her ideology.