January 2, 2012

Judging Newt

As I am writing this, there is a great controversy rising around Newt Gingrich on the issue of judges. I'm scheduling this to publish after Christmas though, so I don't know where the controversy will stand when this goes public.

In either case, Newt is being criticized for saying that he will eliminate court offices which he has deemed to populated with activist judges, and he proposes putting more power in the legislature and away from the courts. Here are his words on the subject from his 21st century contract with America:

The Founding Fathers felt strongly about limiting the power of judges because they had dealt with tyrannical and dictatorial British judges. In fact, reforming the judiciary was second only to “no taxation without representation” in the American colonists’ complaints about the British Empire prior to the revolution. A number of the complaints in the Declaration of Independence relate to judges dictatorial and illegal behavior.

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.

Look here to see my friend Chris's look at Newt's contract.

A big part of me agrees with Newt. In fact, the first political post I published on this blog deals with this exact issue. There I discuss a Constitutional amendment for the ability of the executive branch and Congress to overturn a Supreme Court's decision by declaring it outside of federal jurisdiction (something which I feel would also prevent those branches from overturning something for their own power). I still think that this is a good idea BTW.

However, I do share with the Conservatives' apprehension of a president simply getting rid of a judge because he/she disagrees with them on policy. Mind you, I don't think that this is what Newt is proposing (which I will get back to), but I do share that apprehension. Whenever you have a shift in power, you always have to remember the principle of inheritance. Even if you want "your guy" to have this power, you need to remember that "your guy" will not always be in power, and the next guy will inherit that power. Never give "your guy" power that you don't want someone else to inherit.

However, I think there are some built in checks and good reasons for what Newt wants to do. First of all, he has not proposed that as president he would overturn court decisions. He couldn't do that even if he wanted to. Instead, he is claiming that he can eliminate judge positions. According to him, precedent for this was established by Jefferson and Monroe. However, that is a rather old reference, and the political system may have changed since then to disallow the president from doing this. This is beyond my knowledge. Still, if he does remove these judges, their decisions would remain on the books. He wouldn't be able to undo them.

Second, he isn't attempting to centralize power to the president. Instead, he is trying to bring it back to the Congress, which is consistent with the political theories which founded the nation. Now I know that Conservatives have a tendency to treat the founding fathers as a monolithic group when the weren't, but I do agree that the Constitution doesn't really talk about three perfectly equal branches of government, though it does leave room for it.

Third and finally, his contract speaks of a national conversation of how to deal with this. He is not claiming that he has discovered the answer and is going to push it through (other than taking out certain judges positions and courts). Does he have a suggested answer? Yes, I do agree that presently it is too raw to put into practice as is. But then, that is how our system works. Just like no battle plan survives first contact with the enemy, no piece of legislation survives first contact with the Congress. It'll get shifted, ironed out, and hopefully improved (hopefully being the key word there).

Newt right now is my guy. He is the one that I am rooting for because his ideas excite me, he has shown historically the creativity to deal with real problems, he has worked with both sides of the aisle without losing his fundamental philosophies, and he will bring the kind of experience, both in terms of leadership and interaction within the Federal government, that his predecessor was sorely lacking. His courage to actually deal with this issue is refreshing, and though I think his plan could use some work, I think his own words have shown that he is willing to negotiate and invite input to build a final plan that would be best for America.

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