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December 18, 2011

Gingrich: Who Needs an Independent Judiciary?

That's what he's saying, right? Gingrich hopes that by holding the threat of a trip to Congress courtesy of the U.S. Marshals Service over judges' heads, judges will be more likely to issue rulings that please congressfolk.

You read that right. Gingrich proposes to make the folks charged with reviewing acts of Congress more susceptible to congressional influence.

Gingrich says if there is broad opposition to a court decision, Congress should subpoena the ruling judge to defend his or her action in a hearing room.

When asked if Congress could enforce the subpoena by sending the Capitol Police to arrest a judge, Gingrich assented.

“If you had to,” Gingrich said. “Or you’d instruct the Justice Department to send the U.S. Marshall.”

That's an interesting reversal. The U.S. Marshal Service ordinarily provides security for the federal courts and judges. Gingrich's suggestion is an extreme departure from the vision of Founders. Alexander Hamilton wrote at length about the dangers of subordinating the judiciary to the legislative and executive branches. History buffs might review Federalist #78, in particular, on this issue.

Gingrich is banking on his scheme being well-received by voters angry at how often judges rule without considering whether their decisions have majority support. Of course, the Constitution says nothing about judges making decisions based on the popularity of the outcome.

The idea that Congress should be exercising some sort of super-review over judges is also insanely short-sighted. It may sound great when we stand on the brink of Republican control in Congress. But imagine the squawks of outrage were future Democratic Congresses to start hauling in conservative judges for questioning.

It's confusing to me that folks who love to complain about politicized court decisions want to make the judiciary even more political-minded in this manner. There are better ways to get rogue judges under control. Governor Perry has proposed several, actually. Reducing the carefully balanced separation of powers is not among them.

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posted by Gabriel Malor at 01:39 PM

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