Sunday, December 11, 2011

The Republicans turn to their favorite punching bag once again: the courts

It appears, if the editorial page of the New York Times is to be believed, that Newt Gingrich is at it again. I figured as much. His apparent conversion to moderate politics – I have in mind here his recent position on illegal immigration – was too good to be true. In his defense, running for the Republican nomination is not easy. Lots of crazies out there. Ask Romney. 

Here is the latest. According to Gingrich, Congress and the President must begin to push back on the Court, Cooper v. Aaron and judicial supremacy be damned. Among the tools at the politico’s disposal are the power to strip jurisdiction; impeachment; and the right to abolish specific judicial seats. The affected institutions could also ignore rulings they don’t like. 

The Times’ editors find this approach distasteful. As a general matter, they argue that Gingrich’s attack on the courts takes “the normal attack on the justice system to a new low.” They equate his criticism to “McCarthyist tactics” designed to “smear judges.” Gingrich’s view that the political branches must stand up to the court is described as “twisted.” They close with the following: “His ideas would replace the rule of law with a reign of ideology. If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches.” 

I have three reactions, and a better response to Mr. Gingrich. 
My first reaction is one of amusement. Of course the Times’ editors are going to react in this way. I supposed their readers demand precisely this response, and so they happily oblige. But the readers should demand a lot more. 

My second reaction segues directly from the first. It is unfortunate that the editors did not consult their history books before penning this response. Gingrich is not offering anything that has not been offered before. I have millions of examples in mind, but my favorite one takes me back to the 1860’s, Lincoln’s murder, and Johnson’s “restoration.” This was a time when Congress and the president wrestled for control of the direction of the national government and the legacy of the war. This was a time when the fate of the 4 million freedmen hung in the balance. To Johnson, the Southern states must be allowed back into the union after amending their constitutions, abolishing slavery, and ratifying the 13th Amendment; repudiating all confederate debts; and nullifying all secession ordinances. The Republican Congress disagreed, and vehemently so. They proceed to extend the Freedmen’s Bureau; enact the Civil Rights Act of 1866; and most importantly, the Military Reconstruction Act of 1867. Johnson vetoed all three, and ultimately vetoed 21 bills (and pocket vetoed 8 more). Congress overrode him 15 times. This was an unprecedented clash between Congress and the President in American history. 

Why is this important? Because the way in which Congress responded to the political threat posed by President Johnson mirrors many of the proposals of Mr. Gingrich. Asking the political branches to ignore the Court? Read about the reception given to the Dred Scott decision. What of removing the Court’s jurisdiction? Go read Ex parte McCardle. How about impeaching federal judges? If the Radical Republicans taught us anything, it is that they knew how to use the impeachment power. Ask President Johnson. And about abolishing the judges’ seats? Ask Henry Stanberry, then Attorney General of the United States and Johnson’s Supreme Court nominee in the spring of 1866. Rather than allow him to take a seat on the Court, the Republicans eliminated the seat. 

That’s the problem with history. One need not be a Santayana scholar to know that those who ignore history are bound to repeat it. To make the arguments that the Times’ editors are making, and to make them persuasively, one needs to contend with this history. We should not pretend that this has never happened before, or that it will never happen again. Rather, we must seek consistency. Or could this debate possibly boil down to whose ox is being gored? 

The third reaction: more amusement. The editors draw a clear distinction between Mr. Gingrich’s plan, which they equate with a “reign of ideology,” and the rule of law. But this is a red herring. The justices are imbued in ideology – if you don’t believe me, go watch a judicial nomination hearing and tell me what you see. To suggest otherwise is to long for a world that simply does not exist, to pretend that the justices are something that they are not. In the long run, one may argue that this is a good thing, to pretend that the rule of law grounds the work of the justices. But I have serious doubts about that. Think here about the upcoming ruling about the constitutionality of the health care law; or the upcoming challenge to the use of race in admissions ten years after Grutter. These cases will be decided not by whatever the commerce clause teaches us, or the 14th Amendment, but by whatever personal views the justices’ hold on these questions. Maybe if we stopped pretending that the justices are simply calling balls and strikes, we might get a more humble court. Then again, maybe not. But it should be clear that whatever we are presently doing is not working. Judicial hubris reigns. The Times is not helping by pretending otherwise. 

Here’s what I think a better response to Mr. Gingrich would be. Instead of citing our professed commitment to “judicial independence” and castigating these proposals as ill-considered., we should instead ask our leaders for a dose of consistency. When Mr. Gingrich begins to offer a list of names of judges who might be subject to impeachment, it is likely that such a list will only include “liberal” and moderate judges. And that in itself is preposterous. Any such list that does not include Justice Thomas is a farce and makes clear that it is not offered in good faith. 

By all means, impeach the late Justice Marshall. But do not pretend for one second that Justices Thomas and Scalia – the darlings of the right for their professed strict constructionism – are not similarly driven by ideology and their preferred political outcomes. That is nonsense. Unfortunately, it has also proven to be a winning political strategy. 

 So the myth endures.

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