Newt Gingrich & the Inherent Danger of Populism


Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

Related Post Roulette

128 Responses

  1. Avatar BlaiseP says:

    Heh.   Didn’t Lincoln consider having an arrest warrant drawn up for Justice Taney ?  From the Ex Parte Milligan case:

    After due consideration the administration determined upon the arrest of the Chief Justice. A warrant or order was issued for his arrest. Then arose the question of service. Who should make the arrest and where should the imprisonment be? This was done by the President with instructions to use his own discretion about making the arrest unless he should receive further orders from him.Report

  2. Avatar Jaybird says:

    Imagine, if you will, Obama sending federal law enforcement authorities to arrest judges who make controversial rulings in order to compel them to justify their decisions before congressional hearings.

    Imagine, if you will, the Republican response to this.

    Is it some variant of “oh, goody”? (Disclosure: In my (fevered) imaginings, it is not.)Report

      • Avatar Jaybird says:

        And here is the problem:

        President Gingrich does this. After his one term ends, President Clinton gets elected (“FINALLY!”).

        She does this.

        Now what?

        (Note: I’m not asking this of you as much as the people who don’t read this website who think that this is an awesome idea.)Report

        • Avatar Tod Kelly says:

          I agree.  The other part I would predict is that Clinton (or whoever) would run using “the need to overturn this un-American practice” as a staple of her (or whoever’s) stump speech.

          And then, when elected, would do exactly what you say.Report

        • Nob Akimoto Nob Akimoto says:

          I dunno, Jay…I really don’t think the GOP really gives a shit about this stuff anymore.

          It’s not “What will Democrats do with this power” but…”Well if Democrats use it, what crazy shit can we come up with to one up them again?”

          Which is where I feel like the whole “slippery slope” stuff is failing.Report

          • Avatar Jaybird says:

            It’s like they don’t know why McCain lost.

            It’s like they don’t know why they won the House in 2010.Report

            • Avatar DensityDuck says:

              Ah-heh.  Howard Stern showed us that nobody cared about anything but voting for the black guy.  It wouldn’t have mattered who was on the Republican ticket, they weren’t gonna win.

              You’re certainly right about winning the House in 2010, though.Report

  3. Yeah, this is pretty fishing’ insane, though the arrests for failing to comply with a subpoena are actually less disturbing to me than the notion of dragging judges before Congress for every decision that the party in power disagreed with in the first place.  The idea of arrests for failing to comply with those subpoenas simply flows naturally from that point.

    Beyond that, though, there is the amazing amount of cognitive dissonance involved in  complaining about the growth of government and its purported disregard of Constitutional limitations while simultaneously complaining about judicial “tyranny” that prevents governments from doing things.Report

    • Avatar Koz says:

      “Yeah, this is pretty fishing’ insane, though the arrests for failing to comply with a subpoena are actually less disturbing to me than the notion of dragging judges before Congress for every decision that the party in power disagreed with in the first place.”

      Actually, I’m exactly backwards on that one. Arresting judges is a dark road to go down, but forcing them to testify before Congress and explain themselves seems pretty appealing to me.

      The point is, Team Red believes in engagement, Team Blue believes in entanglement. They won. One consequence (of many) from this is that the institutions which we rely on to be mostly apolitical and hold the cultural center of gravity( in this case the judiciary), end up as just another flying chair in the storm.Report

      • Avatar Michelle says:

        . . . but forcing them to testify before Congress and explain themselves seems pretty appealing to me.

        They do explain themselves and the laws and precedents on which they rely whenever they write opinions. It’s not like federal judges simply pull things out of their asses when they issue rulings, no matter what the wingers think.

        What Gingrich proposes is basically a process by which to intimidate judges to rule whatever way the ruling party thinks is proper; that is, to forsake impartiality for political expediency.Report

        • Avatar Koz says:

          “They do explain themselves and the laws and precedents on which they rely whenever they write opinions.”

          They write what they want, and about what they want. That’s a far far cry from explaining yourself according to somebody’s else questions.Report

          • Avatar James Hanley says:

            On the other hand, they almost always make a better argument than their critics.Report

          • Avatar Michelle says:

            They write what they want, and about what they want.

            And you know this because you’ve spent a lot of time parsing judicial decisions and Supreme Court rulings?

            That’s a far far cry from explaining yourself according to somebody’s else questions.

            Having to answer political questions by legislators looking to score brownie points with their constituents would end any notion of an independent judiciary. Judges would be pressured to rule based on popular prejudices, rather than the law, precedent, and the Constitution.

            There are already checks and balances built into the system designed to prevent judicial abuse of power. The Newster’s suggestions are mere pandering to wingers who think a liberal judiciary has somehow created new law as opposed to ruling on laws already on the books.  The charge can go both way.  Look at liberal reaction to Bush v. Gore for example. But I haven’t heard calls from the left to bring judges who rule the “wrong” way before some kind of Congressional tribunal.Report

            • Avatar Koz says:

              “And you know this because you’ve spent a lot of time parsing judicial decisions and Supreme Court rulings?”

              Yeah, I read Volokh. I also read _The Brethren_, you should too.

              “Having to answer political questions by legislators looking to score brownie points with their constituents would end any notion of an independent judiciary.”

              No. It would dial down the independence of the judiciary a notch or two. The point being, when the judiciary is too independent, that’s a good thing.

              And that’s the important point anyway. I haven’t followed this too close, and for that reason among others I don’t necessarily want to endorse whatever Newt thought up. But there is a real problem.Report

          • They write what they want, and about what they want. That’s a far far cry from explaining yourself according to somebody’s else questions.

            I’m sorry, but this is just a bizarre assertion that has no basis in reality.  It assumes that lawyers do not exist, making arguments on each side of an issue; it assumes that judges (outside of the SCOTUS and some – though not all – state supreme courts) get to decide what cases they hear and don’t hear.  Judges at most rarely raise arguments sua sponte at oral argument, much less for the first time in an opinion; in my experience, when they do raise something sua sponte, it’s been for very good reason.

            Outside of those rare sua sponte cases, an opinion is literally a function of the judge answering the questions presented by the parties.


            • Avatar Koz says:

              I don’t know why this seems so difficult. From your explanation it looks to me like we probably agree on this more than some other things we correspond about.

              Judges’ opinions are in just the ways you mention answerable to the lawyers who practice before him. On the other hand, those lawyers are constrained in two meaningful ways: by their clients’ interest, and their own profession reputation.

              And, the model of appellate supervision is essentially deference. Ie, that the lower court made some variety of recognizable and reversible error.

              But there’s really nowhere for the rest of us to assert some accountability over judges’ conduct. This causes problems in two places. First of all, in family courts, juvenile courts, other sort of seedyish jurisdictions. Sometimes the lawyers are fooled, sometimes not but in either case they really can’t do anything about it because they’ll have to go in front of that judge at least once a week. Eg, that scandal over the Pennsylvania juvenile judge bribes.

              The other is in the higher reaches of the federal judiciary, eg, SCOTUS, the 9th circuit, and a couple others, where some of them have figured out that they’re not really accountable to anybody so they may as well pretend to be in charge.Report

              • Koz, this explanation of yours makes absolutely no sense whatsoever.

                You originally wrote that judges “write what they want, and about what they want,” and indicated that they do not have to answer questions put to them by someone else. That is manifestly incorrect.  Every opinion is  answering questions put to them by someone else.

                I am open to the notion that trial judges should be more accountable for their behavior towards litigants.  The complaint review process may well suck, especially on the state level where written opinions are fairly rare.  But this has only a little to do with the results the judge reaches, and everything to do with the process by which they reach them.

                And this statement:

                The other is in the higher reaches of the federal judiciary, eg, SCOTUS, the 9th circuit, and a couple others, where some of them have figured out that they’re not really accountable to anybody so they may as well pretend to be in charge.

                …just reeks of  “these courts have made decisions conservatives don’t like, and therefore I’m going to claim that they are pretending to be in charge.” That the judges involved may actually, in good faith, believe their decisions to be the correct interpretation of the Constitution or statute at issue seems not to have crossed your mind.Report

              • Avatar wardsmith says:

                My memory is getting hazy on this as time goes on, but I seem to recall that Walker’s decision on Proposition 8 in California was criticized because he put things into his opinion that were never argued by /either/ side in the case. Maybe this is what Koz means by writing what they want?Report

              • On that I would need to see a link providing the analysis that you’re trying to think of to properly respond, as I don’t have any real recollection of that.Report

              • Avatar wardsmith says:

                Mark, my google-fu isn’t very good today, best I could find was this. I’m positive I didn’t read this at the time but perhaps someone referenced the same type of arguments. That’s actually the first time I’ve ever read a post at redstate, although I’ve heard about it often on this site. Other google-fu found this guy, and Tom may like reading his opinions, esp re Reinhardt.

                Almost has the flavor of Kabuki theater.Report

              • Thanks for the effort, wardsmith. I do very much appreciate it. Obviously, that criticism doesn’t really get at the specific problem we’re discussing in our exchange here about addressing arguments not raised by the parties to the suit. Believe it or not, the author of the piece is actually arguing for a pretty radical pro government addition to equal protection/due process analysis, that tradition itself is a legitimate government interest.Report

              • Avatar Tom Van Dyke says:

                Well, MarkT, some judges think their role is justice.  Others think it’s faithfully interpreting the law.  Judicial philosophy certainly plays a part here.

                “Many of us feel an obligation to uphold the rights of citizens against the government. That’s what we think the Constitution is there for.”—Judge Steven Reinhardt, 9th Circuit

                “Well, they can’t catch them all.”—Reinhardt [attributed], on his frequent reversals by the Supreme Court

                Now, there are many [especially here] who applaud Reinhardt’s judicial philosophy as expressed above.  However, this will invariably mean where the law is insufficient or contrary to a judge’s sense of what are good laws or bad laws, the “wise” judge must evade it, and often by dishonest rationalizations of the law’s or the Constitution’s meaning.

                Such dishonesty is built in, there’s no way around it.  Some [not so many here] object to that.  So does the Supreme Court—and most significantly, often unanimously.


                The unanimous part [not the 5-4 ones] being the unpartisan part of the question at hand.Report

              • Well, MarkT, some judges think their role is justice.  Others think it’s faithfully interpreting the law.

                These two things are not mutually exclusive.

                That SCOTUS has a tendency to smack down Judge Reinhardt’s decisions quite readily would also seem to be an argument that there is no real problem here.  The stated philosophy about the Constitution existing “to uphold the rights of citizens against the government,” is also an entirely legitimate philosophy and rule of construction.  That other legitimate philosophies and rules of construction exist in conflict therewith does not make it less legitimate.

                What matters is whether he takes the arguments on both sides in front of him seriously on a given case (and he may well not; I don’t know as I’m not in the 9th Circuit).  Do his opinions address the counterarguments made by the losing party, regardless of whether one might find him unpersuasive on those points?  Etc.Report

              • Avatar Tom Van Dyke says:

                MarkT, I suggest that the unanimous reversals and Reinhardt’s “They can’t catch them all” indicate that his judicial philosophy is “justice over law.”

                This philosophy is applauded by many; my observation is to clarify what’s happening here.  Without clarity, there can be no agreement, or even principled disagreement.Report

              • Tom: I can accept that reasoning, though I’m trying to get at something a little different: that “justice” can provide a legitimate rule of construing/interpreting the law.

                That this mode of interpretation, when used to the exclusion of other modes of interpretation, results in unanimous decisions overturning Reinhardt would suggest that his manner of interpretation just isn’t as widely accepted as one might think.


              • Avatar Tom Van Dyke says:

                Well, MarkT, Reinhardt’s our whipping boy.  Other “activist” judges aren’t as brazen.  Although Roe comes pretty close.

                “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose. … Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the … years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” — Edward Lazarus, former clerk to Justice Harry Blackmun

                “Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” — Ruth Bader Ginsburg, Associate Justice of the U.S. Supreme Court

                “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” — Laurence H. Tribe, Harvard law professor

                “Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching.” — Michael Kinsley, columnist, writing in the Washington Post.

                Sorry about the source, but the quotes seem accurate per my previous reading on the subject.


              • I wholeheartedly agree with the problems with Roe.  It is, frankly, the only clear cut case of “legislating from the bench” that I can think of, as I wrote here in the earliest days of this site.  The problem is that it’s rarely criticized on the grounds that it should be.Report

              • Avatar BlaiseP says:

                Oh c’mon.   Roe v Wade rests upon the Due Process clause.   The current case law in Gonzales v Carhart says Congress could pass a law against abortion tomorrow and the Court would uphold it, as it did with the Partial Birth Abortion bill.

                But Congress won’t pass such legislation, knowing what would come of it.


              • Avatar Tom Van Dyke says:

                MarkT, in yr linked post, you have an area of agreement with Mr. Koz: returning Roe and similar issues to the states.  “Don’t make a federal case out of it” is a cliche I recall from my youth: today, not making a federal case out of anything and everything wouldn’t even occur to us.

                [The cliche is virtually unknown to those under 40, I bet.]

                And I’ll bet few pro-choice supporters, let alone the public at large, are aware of the near-universal condemnation of the intellectual and constitutional shoddiness that is Roe.

                That said, I’m rather on your side in yr discussion with Mr. Koz.  In fact, at the heart of Justice Scalia’s condemnation of “living” Constitutionalism is that it’s great until the other side gets in and starts ruling the way you don’t like.  The same is true of Gingrich’s proposal about “accountability,” that the worm always turns sooner or later.

                Related: Iowa votes out 3 justices who ruled there’s a constitutional right to same-sex marriage:



                As for Steven Reinhardt and “justice over law,” I think we’ve blurred that necessary distinction here for when push comes to shove between them, as it often does.  I think many here agree with that principle but are disinclined to defend it in such stark form.

                And I don’t blame them.  Clarity’s a bitch.Report

              • Avatar Koz says:

                “I wholeheartedly agree with the problems with Roe.”

                Excellent post on Roe btw. It should be pretty obvious by now that we’re going to have to punch quite a few hippies to overturn Roe. So let’s get started.Report

              • Avatar Koz says:

                I’m sympathetic to this train of thought as far as it goes. What I’m also suggesting is that the scope of the problem goes beyond the Reinhardts of the world as well.

                Team Blue is invested in the ever-expanding welfare state, requiring ever-expanding government and all the ancillary consequences of that, and Team Blue has won some important battles in the past to create this jalopy of governance we live in now. Therefore, we must defeat Team Blue in the present, not only to create the policy of limited government, but to reestablish the structure of it as well.Report

              • Avatar Tod Kelly says:

                Is this not, as Mark suggested earlier, simply saying “they decided in a way I don’t like, so now they have to go?”Report

              • Avatar Tom Van Dyke says:

                Well, Mr. Koz, the Constitution doesn’t forbid the establishment of a welfare state.  There are various constitutional issues that can be brought to bear, like the health insurance mandate, but on the whole, your argument is political, not legal/constitutional.

                Now we could go back to Congressman Davy Crockett, who realized one day that the Constitution’s enumeration of powers doesn’t really empower the fed gov’t to vote money to the victims of a fire, but that horse has long left the barn.
                “Mr. Speaker–I have as much respect for the memory of the deceased, and as much sympathy for the sufferings of the living, if suffering there be, as any man in this House, but we must not permit our respect for the dead or our sympathy for a part of the living to lead us into an act of injustice to the balance of the living.

                I will not go into an argument to prove that Congress has not the power to appropriate this money as an act of charity. Every member upon this floor knows it. We have the right, as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right so to appropriate a dollar of the public money. Some eloquent appeals have been made to us upon the ground that it is a debt due the deceased. Mr. Speaker, the deceased lived long after the close of the war; he was in office to the day of his death, and I have never heard that the government was in arrears to him.

                “Every man in this House knows it is not a debt. We cannot, without the grossest corruption, appropriate this money as the payment of a debt. We have not the semblance of authority to appropriate it as charity. Mr. Speaker, I have said we have the right to give as much money of our own as we please. I am the poorest man on this floor. I cannot vote for this bill, but I will give one week’s pay to the object, and if every member of Congress will do the same, it will amount to more than the bill asks.”Report

              • Avatar Koz says:

                Only in the sense that truth has a conservative bias.

                The point being, is that the Constitution is not a trivial document to read but it’s also not horrendously difficult one either. Therefore if the downstream jurisprudence makes no sense from what can be reasonably inferred from reading it straight up, there’s probably some overreach somewhere in the middle.

                And if there weren’t the desire to backdoor policy this way, and to calcify it for the sake of institutional privilege (and in the case of the Commerce Clause the desire to continue to backdoor policy in this way) we could do something about it. And we still can, to the extent that we’re willing to hippie-punch Team Blue.Report

              • Avatar BlaiseP says:

                Tom, lay off that Davy Crockett story.   It’s not in the Congressional Register.  He never said any such thing on the record.Report

              • Avatar Tom Van Dyke says:

                Thx, Blaise, I’ll lay off it.  When I write formally, I check the provenance of these things.  But since it’s a comments section and I was only touching on it ironically [it’s Koz’ argument, not mine], I did slip up.  Thx.

                [Were I writing formally, I’d have used James Madison’s veto of a public works bill along the same lines.]Report

              • Avatar Koz says:

                “That the judges involved may actually, in good faith, believe their decisions to be the correct interpretation of the Constitution or statute at issue seems not to have crossed your mind.”

                There’s two aspects to this one. First is the judges’ attempt to backdoor their own policy preferences, which seems to be what you’re getting at.

                Second is constraint by precedent, built up as detritus over time. Now, for the difficult precedents it should be recognized that the precedent itself was likely an attempt to backdoor policy preferences or make some other political move at the time.

                But once they are set down, they serve as the foundation for other crap to be put on top of it. And SCOTUS especially, for reasons of institutional prestige will always tend to look to get the “right” results based on new convolutions of old cases instead of going backwards and reversing themselves where appropriate and getting it right for the future if not the past.

                I’m thinking in particular of the Privileges and Immunities litigation in the DC gun case. As you’re probably aware, they didn’t win, they won or more conventional incorporation grounds. But I’m glad the lawyers tried anyway. But as you aware, that was an anachronism. Lawyers are paid to win for their clients, not to give SCOTUS a chance to clean up its own trash in the name of the public interest.Report

              • Believe me, I was ecstatic that the lawyers in that case tried to advance the P+I argument (I think I even wrote as much).

                As for the rest, I have no idea what you’re trying to get at.

                It does, however, seem worth noting that a lot of that problematic precedent to which you refer was developed as a direct result of the most successful attempt to make the courts “accountable” in history (FDR’s court packing scheme).Report

              • Avatar Koz says:

                But only part of the problem is that FDR-symp judges set this or that precedent. At least as big problem is that libs are invested in keeping them.

                As far as backdooring their policy preferences, I don’t know how that be difficult to see. Ward mentioned Prop 8, which is as good an example as any. Part of the problem is that the judges can maintain plausible deniability by pretending to simply be working the nuts and bolts of their craft. And sometimes that’s the actual truth of the matter as well (ie, going back to the precedent thing).Report

              • My point is that “accountability” will not have the results that you claim to desire.Report

              • Avatar Koz says:

                But we’re not just talking about “accountability” for its own sake. And for that matter I’m not really enamored of the Gingrich plan for the reasons TVD mentions below.

                “Accountability” isn’t a course of action. Hippie-punching the libs is a course of action, and the right one. Our failure to do it heretofore has had consequences, and one of them is this particular lack of accountability.

                Btw Mark, I thought your comment on the other thread was very illustrative of the liberaltarian business. Why do you think you should move Left to disassociate yourself from Rothbard and Rockwell? Among prominent libertarians, Rothbard and Rockwell are distinguished as being culturally alienated from Greater Red State America and the Republican party in particular.

                The intellectual corruptions are on the Left. You should be moving away from them instead of towards them.Report

    • Avatar wardsmith says:

      Mark, you’re an attorney. Have you ever been before a federal judge? Fortunately I haven’t but back in the early Internet days, we were installing a network at the federal court house for the 9th district. I went into a judge’s chambers and immediately went out to track down his clerk. I told him I thought the chambers were on fire. Realize, this was after the law was in place that smoking was prohibited in federal buildings. The clerk laughed and said, “Yeah, he has a problem with that” and accompanied me back into the chambers where we found about 6 different ashtrays each with cigarettes burning away, unattended mind you the judge was out. In a couple of the ashtrays, there were so many butts there was a smoldering conflagration going. I said to the clerk, “Isn’t this against the law?” and he said, “Who can stop him?”

      I later asked my attorney, who was the dean of a prestigious law school and had been before the Supreme Court several times about this judge. He told me point blank, “Oh he’s off his rocker”. I asked about the cigarettes and he said, “It’s good to be King”.

      Newt’s wrong of course, but there are some odd ducks on the bench.Report

      • In answer to your question, yes, I have.  I don’t want to give away too much, though, for professional reasons.

        But first a query: do you mean “9th Circuit,” in which case we’re talking about a federal appellate judge, or “9th District,” in which case we’re probably talking about a state trial judge?  I’m assuming you mean “9th Circuit,” in which case you’d be talking about an appellate judge.  I have not ever personally appeared before a federal appellate judge, though I’ve written a number of federal appellate briefs.

        Anyhow, there’s surely some odd ducks on the bench, just as in any profession (lest we forget, people actually elected and re-elected Jim Traficant, Marion Barry, etc., etc.).   And just as in any profession, there are some judges who are better at their jobs than others.  But whether a judge is a good or a bad judge typically has less to do with the results they reach than it has to do with the process by which they reach those results.  By that I mean: do they actually read the briefs before them? What kind of knowledge of the facts of the case do they have (which will be most apparent based on their line of questioning at oral argument)? Are they respectful to counsel? Do their opinions demonstrate an understanding of the parties’ actual arguments? And so on.

        My personal experience has been that, at least on the state level, the higher the level of the court, the stronger the likelihood of a given judge being a good judge. I am told this also holds true in the federal courts.Report

        • Avatar wardsmith says:

          Mark, thanks for the correction, I was using terms interchangeably which aren’t interchangeable. I think I even know the judge’s name now, but won’t say it here after all. Besides flouting non-smoking laws, he got in trouble for other abuses of power as I recall. However, I see he’s still on the bench so won’t go into details, no point in pissing him off, I may need him not to hate me someday. 😉

          There’s the rub, lawyers will put up with all kinds of grief if they know there’s a chance things will come out well for them down the road, even with a questionable judge. My prosecutor friend often tells me horror stories about this or that judge’s court (admittedly a lower level, although they’ve had cases go to the 9 circuit on appeals). I guess fundamentally it comes down to something like, “Better the devil you know…”Report

          • One word of warning: be very careful about taking your friend’s opinion too seriously.  He of course is certain to have his own biases, particularly as a prosecutor.Report

            • Avatar wardsmith says:

              Oh he’s not wrapped up with wins and losses (his boss is), he’s more concerned about feebles and foibles. Judges like to run “their” courts “their” way. Let’s just say there are some judges he would far rather appear before than others.Report

              • No doubt.  I wasn’t trying to cast aspersions on him, just suggesting that prosecutors are human and thus subject to certain biases like the rest of us.  I tend to think this is especially true with prosecutors’ evaluations of judges because it’s rare that they have any experience representing any party other than the State, nor any experience doing so in any matters other than criminal matters.  (Defense attorneys are often former prosecutors, and in any event often represent clients in at least some occasional civil matters as well).  But absolutely, there are always judges that any given attorney would rather appear in front of than others.Report

  4. Avatar Plinko says:

    If there’s one thing the Congress needs, it’s more opportunities to engage in public grandstanding.


  5. Avatar Michelle says:

    Among the scary things that Newt has said during this campaign, his recent string of remarks about reigning in the judiciary and calling judges to the carpet when their opinions  don’t jibe with popular opinion are among the most scary. Clearly, he’s not a lawyer and doesn’t grasp the concept of separation of powers, but it pains me to no end that he presents himself as an American historian when it’s clear that he knows so freaking little about American history and the desire of the founders to prevent a government based purely on popular or majority opinion. I can only hope that the Newster’s downward spiral in the polls continues. The guy’s a demagogue in the making!Report

    • Avatar Koz says:

      “Clearly, he’s not a lawyer and doesn’t grasp the concept of separation of powers, but it pains me to no end that he presents himself as an American historian when it’s clear that he knows so freaking little about American history and the desire of the founders to prevent a government based purely on popular or majority opinion.”

      Oh I think he does well enough but it’s just that libs are bad and we have to do something about that too.Report

      • Avatar Michelle says:

        I’ve read some of the stuff that Newt has written and passed off as “history” and it’s pretty clear from what he’s written that he’s basically pulling stuff out of his ass. Me thinks he just likes the sound and fury of his own bombast.Report

  6. Avatar James K says:

    Yes, that is a wholly terrifying proposal.Report

  7. Avatar North says:

    Well either way Newt is plummetting in the polls. I’m sad to say it doesn’t look like he’s got a very good shot now. At this point I’m guessing it’ll be a Paul Iowa and then Romney nomination. Pity, Newt would have been a fun opponent to have but Obama ain’t that lucky.Report

  8. Avatar Rufus F. says:

    Populism is subject to bursts of enthusiasm and bile, but they also tend to be mercifully short-lived, something the founders probably had in mind when they designed a government where everything takes a painfully long time to institute. Given that the GOP candidate likely won’t be Gingoyle, isn’t it likely that this idea will be forgotten by the more-respectable candidate?Report

  9. Avatar DensityDuck says:

    On the one hand, arresting judges who make rulings we don’t like.

    On the other hand, using the unelected Executive-branch bureaucracy to regulate the coal industry out of existence.

    Not necessarily equivalent, but let’s just remember that Newt Gingrich isn’t the only man in the world to say some pretty weird things.Report

    • Avatar James Hanley says:

      On the other hand, using the unelected Executive-branch bureaucracy to regulate the coal industry out of existence.

      Not equivalent at all.  The judiciary is constitutionally protected from pure politics; it’s as sacrosanct as Congress itself.  Newt’s suggestion is a direct attack on the fundamental structure of our polity.

      Over-regulating the coal industry?  Stupid policy at best, but almost certainly within constitutional bounds.  And the unelected bureaucracy is accountable to both an elected president and an elected Congress.Report

    • Avatar Tod Kelly says:

      Which is just one reason this post listed three things the current administration does that it shouldn’t.

      That being said, DD, I’d argue that the biggest factor in these things continuing is each side, when their guys is guilty, crying “But the other side does it too!” and then considering the problem solved.Report

  10. Avatar BlaiseP says:

    Perhaps, rather than the judges, we ought to put all our politicians on trial at the end of their terms, obliging them to justify their hasty and imprudent decisions, making them explain the exigencies of those moments in the light of the consequences.

    Those much-exercised by those Goddamn Activist Judges never seem to get around to criticizing the laws those judges use to decide their cases.   I’ve recently been banging my spoon on the bottom of my little rhetorical saucepan, pointing out how the Congress, especially the Senate, daily demonstrates its insufficiencies. Instead of doing the business of this nation, making and amending good laws, we are treated to much sloganeering and hymn-singing accompanied by the Mighty Partisan WurlitzerReport

  11. Avatar DensityDuck says:

    This seems relevant. If it’s the height of dangerous populism to suggest that judges ought to be subject to review, then how do you deal with a judge who is an actual problem? Can’t that judge just always claim “you’re only harassing me for political reasons, also you’re secretly lizard people, HOLY JESUS WHAT ARE THESE GODDAMN ANIMALS?!”Report

    • Avatar BlaiseP says:

      Um, impeachment?Report

      • Avatar Jaybird says:

        How often are judges impeached?

        If the information that the Wiki has here isn’t missing anything, it seems to me like the threat of impeachment isn’t used anywhere near often enough to be a credible threat (though I’ll grant that it had been used more in the last decade than I expected… which was “not at all”).Report

        • That they are only rarely impeached, and that it is not really noticeably more common for there to even be an attempt to impeach a judge would seem to suggest that politicians don’t actually believe the crap that comes out of their mouths about “activist judges.”Report

          • Avatar Koz says:

            Yeah, Jay is right on this one. It seems a lot more plausible to think that the reason nobody attempts to impeach judges is because the logistical roadblocks to being successful at it are really high.Report

        • Avatar BlaiseP says:

          Not often enough, you say.   Having spent enough time in both states to register to vote, I observe every governor of Louisiana and Illinois serves two terms:  one in office and the other in federal prison.

          All this begs an important question:    it seems some folks do not like the idea of an independent judiciary.   They do not see the necessity of one man making law and another deciding cases upon it.   Those whom the gods would destroy, first they grant his wishes.   Be careful, o ye populists and bloviators after Subpoenas,  you will be the first to testify in the Star Chambers you wish to build for others.Report

          • Avatar Jaybird says:

            Not often enough to be a credible threat against judges who are an actual problem.

            Of course, the argument that “all of those judges, excepting the two that were impeached, still deserve their jobs” is one that would be fun to put in your mouth but I’d rather poke at the one I suspect you’re actually making:

            The level of judicial corruption that we have with this level of impeachment is of a higher quality and does less damage than the level of judicial corruption we’d have if impeachment were, in fact, a credible threat.

            And that’s a thought I’d like to see fleshed out a bit more.Report

            • Avatar BlaiseP says:

              Hark, I hear a thrilling sound, the drumbeats of dead horses beaten down in the town square!

              Judge Richard Baumgartner was removed from the bench.   There is a route to removal of a Problem Judge from the bench, it’s called impeachment.   End of story.Report

              • Avatar wardsmith says:

                Judge Richard Baumgartner wasn’t a federal court judge as I recall.Report

              • Avatar Jaybird says:

                You’re, like, addressing arguments that no one has made or even implied.

                This is your right, of course.

                It should be pointed out that you should expect to have this pointed out.

                So, again, I do not see Richard Baumgartner’s impeachment as establishing that the threat of impeachment against “bad judges” to be particularly credible. It seems far more likely to me that impeachment is used rarely to the point where it’s not a deterrent for bad behavior (and when it is used, there are probably more political calculations behind it than ethical ones (though the ethical ones are (of course!) used as cover)).(Compare to the death penalty.)Report

              • Avatar BlaiseP says:

                I’m not sure if you’re addressing Ward or me.  I believe, if my eyes do not deceive me, the question most-outdented on this thread had to do with the Removal of Problem Judges, using old Barbituate Baumgartner as the Seemingly Relevant Example.

                What, pray tell, would be the litmus test for sorting out Problem Judges from their peers?   Once we apply a few rules of algebra and unbuckle all those parenthetical expressions, we are left with something about Bad Behavior.   Very squishy, this charge of Bad Behavior.   Filtering it through statute law leaves nothing of substance and we are left with the charge of Contempt of Politician.Report

              • Avatar Jaybird says:

                So, to go back to DD’s original question, there isn’t really any way to deal with a problem judge because every judge can just claim to have pissed off the wrong politician?Report

              • Avatar BlaiseP says:

                Who wants to remove the judge, and on what charges?

                Now comes the petitioner (“Newt Gingrich” or Petitioner), pro se, before the Court of Public Opinion…..Report

              • Avatar DensityDuck says:

                In other words, “you’re just trying to remove me because I pissed off the wrong politician”.Report

              • Avatar BlaiseP says:

                Contempt of Politician is a very serious charge.   A hanging offense in Utah, I hear.   Georgia, too.Report

              • Avatar BlaiseP says:

                I think I might be wrong here.   Utah puts the condemned in front of a firing squad, doesn’t it?   Maybe we can arrange for a few politicians to shoot the Problem Judge.   Fitting justice, wouldn’t you agree?Report

              • Avatar Kim says:

                around here we vote ’em out. ya?Report

              • Avatar Jaybird says:

                And I’m googling and it doesn’t seem that Richard Baumgartner *WAS* impeached.

                He was disbarred.

                Is this a meaningless distinction?Report

              • Avatar BlaiseP says:

                Well, let’s say you’re right.   He wasn’t impeached, strictly speaking.   It’s a pointless distinction, here’s a case where the ol’ shepherd’s crook came out of Stage Left and pulled this clown off the stage and good riddance to him, by whatever means he was pulled off.

                Still, I’m kinda curious about what makes a Problem Judge a Problem.   Call it a blank spot on my map.   Educate me here.   Which petition form would we need to fill out for getting this Problem Judge case before the Court of Public Opinion.   Do they have them at the clerk’s station in the courtroom?   Civil Contempt perhaps?

                We don’t have to worry about venue, the Court of Public Opinion always has venue, with the statue of the Angry Kangaroo out in front of the courthouse.Report

              • Avatar Jaybird says:

                I’m kinda curious about what makes a Problem Judge a Problem.

                I don’t know where the line would be, if there is even a bright line at all. I don’t know where it’d begin.

                However, there are some fuzzy and hazy things that I think should definitely qualify.

                • conflicts of interest
                • collusion with the prosecution/plaintiff against the defense
                • collusion with the defense against the prosecution/plaintiff
                • deliberately inaccurate instructions to the jury

                That sort of thing.

                If we agree that Baumgartner and (as Tom mentioned) Hastings were both removed and rightly so, it seems like they both qualify as cases that are, like, *SERIOUSLY* egregious. Like, “look up the definition of egregious and there’s those guys”.

                Surely that’s not where the line ought to be drawn, right? If it’s fuzzy, surely that’s not where the line should cease to be fuzzy… right?Report

              • Avatar Tod Kelly says:

                But JB, a judge can lose his seat for any of these infractions.  He can be disbarred, which means that not only does he lose his job, he can’t go get another job being a judge or even an attorney.

                How would making a judge’s consequences more like politicians (see Tom’s point about the judge that was tossed for racketeering so has been in Congress since) a better solution?

                Mark should correct me if I’m wrong, but while your indicted elected official can continue to serve as long as they can get you to vote for them, judges not so much.

                Is the complaint then that people don’t disbar judges when they should?  Perhaps, but how does making them responsible in the same way, say, a Perry or an Obama is responsible make things better?


              • Avatar Jaybird says:

                My argument isn’t exactly that we should be making a judge’s consequences more like politicians.

                It’s that Federal/State Officials are, more or less, untouchable unless they do something spectacularly stupid *AND* do it in such a way that angers (or worse, embarrasses) their superiors.

                Mark should correct me if I’m wrong, but while your indicted elected official can continue to serve as long as they can get you to vote for them, judges not so much.

                The problem isn’t that indicted judges quit. It’s that so very few end up indicted.Report

              • Avatar Tod Kelly says:

                “The problem isn’t that indicted judges quit. It’s that so very few end up indicted.”

                I would agree with this.  I would not agree that the solution is to hold regular judge elections, or make judges have to go before political operatives to publicly “answer” for their decisions.  (Not your argument, I know, but to those here arguing for this I want to say it.)Report

              • Avatar Jaybird says:

                (Note: The above list should not be assumed to be exhaustive)Report

              • Avatar BlaiseP says:

                I’m confused, somewhat.   These criteria are all on the books.   Cases are appealed on these bases all the time.Report

              • Avatar Jaybird says:

                Cases are appealed… but, in my lifetime, there have been only 13 impeachments of State/Federal Officials. 13! In almost 40 years! And since one of those times was someone getting impeached a second time, that means that only 12 people have been impeached.

                The explanations that say that folks are good to the point where none of them need impeachin’ seem a lot less likely to me than the explanations that are less charitable.Report

              • Avatar Jesse Ewiak says:

                I’m perfectly happy having a country where there’s too few impeachments instead of too many.Report

              • Avatar Jaybird says:

                “Better let 100 criminals go free than jail 1 innocent man” was not intended to apply to public officials.Report

              • Avatar Jesse Ewiak says:

                Why not? As opposed to the conservatives and libertarians here, I don’t see any massive overreach by the vast majority of judges, outside of the truly criminal acts posted by a few people (which ironically were mostly done by elected judges) anyway. I don’t see the need for more impeachments of public officials. Perhaps more defeats of legislators or executives in public office, but as much as I don’t like them, Scott Walker nor Eric Cantor have done nothing illegal. I have no doubt Justice’s Scalia and Alito firmly believe money is speech.

                On the other hand, to a lot of conservatives, it seems that it’s still 1958 and damn it, they’ve gotta’ impeach Earl Warren. Because they’re pissed they can’t do to Justice Ginsburg or whoever the activist judge of the day is what they did to those justices in Iowa for daring to give gay people equal marriage rights.

                On the other hand, I do think there’s an argument toward non-lifetime appointments. Unfortunately, I’ll agree to that the moment 40 Senator’s can’t block a qualified judge.Report

        • Avatar Kolohe says:

          If ‘out of control judges’ was even in the top 10 things interfering with real liberty in the country, I’d be with you on this one JB.


          (or rather if the people complaining about ‘out of control judges’  were complaining more about, as someone brought up the other day, this guy than some random schmoes ruling on creches in courthouses, I’d pay them more attention)Report

          • Avatar Jaybird says:

            I just wish we impeached more Federal and State Officials.

            If that’s wrong, I don’t want to be right.Report

            • Avatar Kolohe says:

              In addition to being in favor (seriously) of one Senator from each state being selected by lottery, I can be persuaded for a system of sitting officials are removed by lottery as well.Report

            • Avatar Koz says:

              I think that’s not a bad idea. Unfortunately, to make it effective I think would require some Constitutional changes, which the problem with a lot of this line of thought.Report

            • Avatar Patrick Cahalan says:

              I’d be more onboard with impeachment if one of the consequences of impeachment was “your dumb ass can’t be paid to hold an elected or appointed position henceforth.”Report

          • Avatar Tom Van Dyke says:

            Mr. Kolohe, I raise you federal Judge Alcee Hastings, impeached for corruption and convicted, now a member of the same House of Representatives that impeached him.  [To bring up his party affiliation would be an unnecessary complication.]

            [Heh heh.]Report

            • Avatar BlaiseP says:

              I give you Newt Gingrich, whose party I need not mention, sanctioned by the Ethics Committee, fined 300,000 dollars American and forced to admit he had lied to Congress, evaded taxes and submitted false reports over his own signature.

              Does anyone take this mendacious clown seriously?   Many do.Report

    • Avatar Tod Kelly says:

      I think this argument misses the point of checks and balances. I’m not sure that anyone is arguing that judges are perfect or infallible; just that the three imperfect branches are best suited to keep things in check.Report

    • It seems worthy of mention that the judge in the linked-to story was an elected judge.Report

  12. Avatar J. Otto Pohl says:

    Don’t worry Newt Gingrich’s supporters are an invented people. 😉Report

    • Avatar BlaiseP says:

      Sorta like Newt himself, sui generis.   I fully expect Newt’s shoulder to come out of joint here, shortly,  as he pats himself on the back too vigorously.    And that’s not the only part of Newt he’s patting, either.Report

  13. Avatar Tom Van Dyke says:

    Newt is the Buddhist monk of the GOP, self-immolating for the cause.  He does have a point in there somewhere, but it cannot be seen behind the flames.Report

    • Avatar Koz says:

      I’m surprised this didn’t draw any comment. The link to Ed Whelan is very persuasive to me at least.

      The debate over judges testifying before Congress is interesting in an academic sense, but we shouldn’t get wrapped up too hard in Newt’s impulsiveness. As a practical matter, we’re much better off just winning the Presidential election, and then putting who we want on SCOTUS.

      But this little turn didn’t happen by mistake either. By framing the issue the way he did, Newt frames the issue in a way that he gets to be in the middle of it. There’s no reason for the rest of us to follow.Report