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Gingrich's assault on divided powers

The prospect of Newt Gingrich as president grows more ominous each time the boisterous Republican candidate opens his mouth. His latest verbal assault targets the independence of the federal courts. On news shows and the campaign trail, Gingrich promises he would put an end to the U.S. Supreme Court being the final arbiter of the U.S. Constitution's meaning. He would upend America's established system of checks and balances among the three branches and instigate a constitutional crisis. Irresponsible outbursts on the campaign trail are one thing; contemplating them coming from the White House is another.

This is not a new line of attack from Gingrich. In a 54-page white paper titled Bringing the Courts Back Under the Constitution and in his 2005 book Winning the Future, he laid out a flawed but detailed argument that the executive and legislative branches do not have to accede to the Supreme Court's constitutional interpretations. Gingrich says that there are times that the president "might choose to ignore a court decision," such as in matters of foreign policy or national security where the court, in his view, is interfering with executive power.

Gingrich is particularly condemning of the series of Supreme Court rulings during the Bush administration that recognized a semblance of due process for people accused of terrorism. He thinks no court can circumscribe the president's power as commander in chief to hold prisoners indefinitely without charge. The former House speaker also thinks the elected legislative and executive branches have the power to limit the jurisdiction of the federal judiciary such that the courts could be prevented from hearing cases on habeas corpus, church-state separation or other fundamental constitutional questions. Imagine if before Brown vs. Board of Education, Congress had barred the federal courts from ruling on equal protection issues that conflicted with states' rights.

But this is Gingrich just warming up. He also has figured out practical ways to hold dominion over federal judges who rule in ways that perturb him. He told Bob Schieffer on the CBS News program Face the Nation that Congress should drag federal judges before Congress to explain rulings that the majority party dislikes. When pressed as to how he would accomplish this, Gingrich said he would send U.S. marshals to arrest judges who refuse to testify voluntarily. Gingrich also recommends a more aggressive use of impeachment to get rid of judges who drift too far afield from his originalist views on the Constitution, and the closing of courts or the defunding of parts of the judicial branch if need be.

This may go over with some extreme factions of the Republican Party, but more thoughtful Republicans think Gingrich's proposals are troubling. Former Bush administration Attorney General Michael Mukasey said Gingrich's views are "dangerous, ridiculous, totally irresponsible, outrageous, off the wall."

His proposals would do away with judicial independence and transform the judiciary into a branch that is answerable for its decisions to the political branches rather than to the law. As Republican voters begin narrowing down their choices, Gingrich's assault on the courts should not be dismissed as so much hot air. It represents a serious threat to judicial independence and the separation of powers of the three branches of government.

Gingrich's assault on divided powers 12/26/11 [Last modified: Monday, December 26, 2011 5:00pm]
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