Newt Gingrich vs. “The Republican Establishment”


Less then ten days ago, Newt Gingirich offered another zinger in the pre-holiday debate among Republican candidates for the presidency. He noted the need to do something to constrain the excesses of arrogant activist judges and he presented a concrete strategy for doing so. He said, “If judges are so radically anti-american that they thought One Nation Under God was wrong, then they shouldn’t be on the court.” In this he was referring to a specific recent court ruling that many Republicans agree was nerdy and over-reaching. Newt has proposed various measures for enforcement of judicial responsibility in relation to the other two branches of government. In certain cases, judges should be compelled to explain their rulings before Congress or risk impeachment.

Newt has been pummeled with criticism from the so-called “Republican Establishment,” a possibly self-marginalizing cadre of naysayers who now must prove that Newt is unelectable by doing everything in their power to make sure that he isn’t elected. Charles Krauthammer appears to be one such critic. From his comfortable perch as a Fox News regular, he has denounced Newt’s proposal and has suggested that Newt probably couldn’t win the election next November.

So far, no one I can think of has effectively countered Newt’s actual argument supporting the viability of his idea. During the recent debate, Newt, who is a historian, noted, for example, that in 1802, Thomas Jefferson abolished 18 of 35 judges. Megyn Kelly, a panelist asking questions of the candidates parried, saying, “Something that was highly criticized.” And Newt replied, “Not by anybody in power in 1802,” and then extended the history lesson by pointing out that Lincoln repudiated the Dred Scott decision in his first inaugural address of 1861.

On Sunday, Bob Schieffer, on “Face the Nation,” invited Newt to explain his position. For Newt’s answer, click here.

I would like to hear a fuller explanation of Newt’s notion, and a more complete response to it. Mitt Romney won’t debate Newt before Iowa. So here’s an idea for Newt to consider: Challenge Charles Krauthammer, George Will, Karl Rove, Michael Mukasey—or any other of the conservative advocates mocking your proposal—to a debate or public discussion about the issue of judicial activism, the need for constraints, and your plan for putting restraints in place. Clearly, you’re a man of bold new ideas. As far as I know, a direct challenge to debate some TV talking head wielding disproportionate influence among the electorate, or a former Republican Attorney General, like Mukasey, is unprecedented. Maybe it’s time.

For Newt’s detailed position on reigning in activist judges, click here.

I invite comments, and I especially welcome answers to any of these questions:

1. Is there a problem in the United States with “activist judges”?

2. What are the strengths of Newt’s plan for addressing this problem?

3. What are the weaknesses of Newt’s plan for addressing this problem?

4. Would you like to see a public debate or conversation between Newt Gingrich and members of the Republican establishment who object to his plan?

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Our Role in the Appointment of a Supreme Court Justice


A few days ago, President Obama announced his first nominee for Supreme Court Justice. Among the various tools the President has used to get his message out is his website, where a 4-minute video announcement is posted here. I encourage you to view this video. I also encourage you to think carefully about what the President says at each stage in his announcement.

We live in a democracy. We have the opportunity and the responsibility to pay attention to major developments occurring in the executive, congressional, and judicial branches of our federal government. We should not simply elect a new President and our congressional representatives, and then forget about it. We have a duty to unceasing vigilance. The survival of democracy depends upon it.

The appointment of a new justice to the United States Supreme Court involves all three branches of our government, starting with the executive branch and the President’s nomination of the person he or she believes is best suited to the role. Congress then deliberates and votes up or down on the President’s nomination. If the nominee is approved, he or she steps into the vaunted role of applying the United States Constitution to the most sensitive legal cases of the age. If Congress does not approve the nominee, then the whole process begins again, with the President’s selection of a new nominee.

Now is a good time to consider why so much circumspection is required—required by the Constitution. When drafting the Constitution, the founders of our nation recognized that the degree of authority vested in justices of the Supreme Court is, well, supreme. What they say goes. Each appointment is a life appointment. It ends only when an individual justice decides to retire or that justice dies—whichever comes first. It is not unusual for justices to sit on the highest court for several decades. Except in very rare cases, a justice’s tenure on the Supreme Court is years and years longer than the maximum eight years any person can serve consecutively as President of the United States.

In addition, the decisions made by our Supreme Court justices outlive the justices themselves and stand indefinitely. Reversing the effects of a Supreme Court decision is far more complicated than appointing justices to the Court. It is probably the most unlikely action our federal government can make.

Finally, decisions made by the Supreme Court are compelling for all 50 of the United States.

You may wonder what difference ordinary citizens can make in the process of appointing justices to the Supreme Court. Here are a few key opportunities:

  1. Our responsibility begins with the election of a President.
  2. We then are free to follow the nomination and confirmation process. This is mostly a matter of staying informed. This takes some skill, since media outlets themselves have political agendas.
  3. Being informed is not enough. We must be thoughtful about what we hear. We must consider how a nominee is being pitched to “we, the People.” This requires skills of another kind, the skills associated with critical thinking.
  4. We are represented by elected officials in Congress. Our representatives are sensitive to our expressed will to be heard. Citizens hold some power, then, in influencing the approval process.

The single most significant aspect of our duty as citizens is vigilance and critical thinking.

This post reveals nothing about my response to President Obama’s nomination. I may add posts about that later. Meanwhile, I’m especially interested in the way the nominee is being presented to “the public.” That’s us. Except that we aren’t “the public.” We are the People. And We the People must do our part.

To that end, I’ll be adding posts that encourage critical reflection on aspects of the media coverage. My first post about this can be found here. It begins at the beginning with the President’s announcement.

Geivett’s Book Recommendations:

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