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Gingrich Wrong on Courts and JudgesI've documented how many of those running for president – Newt Gingrich, Herman Cain, Rick Santorum, Rick Perry – have come against the 7th Amendment right to civil jury trial and in favor of tort reform.

But last week, Newt Gingrich showed he has a fundamental misunderstanding of the US Constitution and the role of the civil justice system. The US Constitution was formed to provide three separate but equal branches of government. But Newt Gingrich openly advocated wholly ignoring the judicial branch and subpoening judges with whom he disagrees and subjecting them to arrest.

Here is Gingrich espousing his position on CBS Face The Nation this weekend:

Republican Attorney General Michael Mukasey told Fox News "Mr. Gingrich's proposal is dangerous, ridiculous, totally irresponsible, outrageous, off the wall, and would reduce the entire judicial system to a spectacle."

Gingrich's response: "I think many lawyers would find this a frightening idea."

Do you think? Of course lawyers would be frightened about a presidential front-running threating to literally blow up the constitution!

Gingrich makes his argument – in part – on the basis of religion. But as leading conservative Andrew Cochran has written, religious liberty needs open courtrooms [and independent judges] to survive.

I hope Members and witnesses remember that to survive, religious liberty needs open courtrooms. Any measure to restrict the ability of Americans to file a lawsuit in court compromises our ability to defend our religious liberty. So, for instance, the Judiciary Committee's original bill to toughen sanctions against attorneys under the Federal Rules of Civil Procedure could have resulted in a nonprofit's or small-sized law firm's refusal to take on a religious liberty lawsuit because of potential attorney sanctions.


The Founding Fathers didn't differentiate between lawsuits to protect constitutional rights and lawsuits for negligence; they designed the civil justice system for all causes. The "tort rerform" movement could continue to spark conflict with social conservatives over the access to civil justice, unless Americans tell Congress and state legislatures to keep courtroom doors opened.

Andrew Cohen of The Atlantic writes: "The closer Newt Gingrich gets to the Republican nomination for president, the more unhinged become his attacks on the independence of the federal judiciary." And Cohen articulated the dangerous path to which Gingrich would have us walk:

What Gingrich really is saying, under the guise of blasting "elitist" judges, is that the Bill of Rights would no longer be used to protect individual rights because the judges who help ensure those (often unpopular) rights can be outvoted by the White House and the Congress. In President Gingrich's world, evidently, the Supreme Court would not have the final say on the law. The majority, as represented by the popularly elected branches, would have the ultimate vote. Not in every case, Gingrich says, just insome. Does that reassure you the way he meant it to?

Cohen also described the practical problems for Gingrich's plan to subpoena judges:

I am sure there are a hundreds reasons why Gingrich's latest big idea is a dangerous and terrible one. Let me share just two of the most obvious ones. First, it's unconstitutional under any reasonable interpretation of the document or its subsequent precedent. No federal judge is going to allow himself or herself to be treated in such a manner and no other federal judge is going to permit it to happen, either. A subpoena is just a piece of paper without a judge's endorsement of it. So which federal judge, do you think, is going to sign a paper that forces another to be the subject of a Congressional inquisition that patently violates separation of powers principals?


Second, Gingrich better be careful of what he asks for. Congress gets to subpoena judges who go against the will of the majority? Sounds good. Let's start first with all those well-meaning Republican appointees on the federal bench who have voted over the past year to strike down the Patient Protection and Affordable Care Act? To paraphrase Gingrich, why should those judges be allowed to dictate to the American people something different from what our wise legislators have concluded about federal health care? Why should the "dictatorial" powers of those judges be used to trump the legislative mandates contained in the new law? Oh, wait, you mean only some judges get to be called to account?

Both liberals and conservatives alike oppose Gingrich's plan to subpoena judges and ignore judicial precedent and decisions.

Two US Attorneys General under George W. Bush – Alberto Gonzales and Michael Mukasey told Fox News that Gingrich's plan to subpoena federal judges was "dangerous".

"I think we have a great government, a great country because it's built upon the foundation of the rule of law. And one of the things that makes it great and the rule of law is protected by having a strong independent judiciary," Gonzales said.

"And the notion of bringing judges before Congress like a schoolchild being brought before the principal to me is a little bit troubling. I believe that a strong and independent judiciary doesn't mean that the judiciary is above scrutiny, that it is above criticism for the work that it does, but I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges."


"I would tread very, very carefully down the road with this notion htat 'okay, this judge has rendered a decision we think is very unpopular and we're not happy with it so we're going to try to impeach this judge.' I think that's not healthy….," Gonzales said.

Laurence Tribe, constitutional law professor at Harvard Law School, called Gingrich's idea "one of the craziest and most obviously unconstitutional things the former Speaker has ever proposed. It represents a frontal assault on the independence of the federal judiciary, which is a bulwark of a constitutional system that has served us well as a nation ever since Marbury v. Madison…. Grilling and scolding… judges when the decisions they render fail to please those in power on Capitol Hill is worse than a dumb idea; it's a threat to our entire framework of checks and balances."

Reagan Justice Department attorney, Bruce Fein, called our "independent judiciary with life tenure and authority to hold the legislature and executive accountable to the Constitution was [a] revolutionary crown jewel" and "Gingrich is unwittingly proposing to overthrow the Constitution that he would be pledged to uphond and defend if elected to the presidency."

As Tribe further noted, judges do not need to be subpoenaed to explain their decisions. Judges explain themselves in published opinions. When their explanations fail to convice, their opinions are subject to review by appellate courts and, ultimately, the supreme court. If we are still not convinced, we are all free to criticize. And, more importantly, the legislature and executive are free to act within the bounds of the constitution. If the legislature does not like an interpretation of law, the legislature can pass a new law. If the people do not like a constitutional interpretation, the people can call for amendment of the constitution.

An independent judiciary has received bipartisan praise and support dating back to the founding fathers. Again, from conservative Bruce Fein:

Both Chief Justice William H. Rehnquist and Associate Justice Ruth Bader Ginsburg have echoed that accolade from opposite wings of the High Court. James Madison, father of the Constitution, lavished praise on the federal judiciary as a bulwark against legislative or executive tyranny. One of the indictments against King George III in the Declaration of Independence was making judges "dependent on his will alone." In the landmark case of Marbury v. Madison, Chief Justice John Marshall explained that judicial review was the difference between a government of laws and a government of men. The 1805 acquittal by the United States Senate of Associate Justice Samuel Chase accused by the House of Representatives of impeachable offenses because of judicial rulings favorable to the Federalist Party established the time-honored principle that federal judges are not accountable to any other branch for their judicial opinions.

An independent judiciary and strong 7th Amendment are the ultimate lynch pins for all other constitutional rights, which is why constitutional conservatives oppose attacks on 7th Amendment rights through tort reform. What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government? What happens when a President or a Congress simply ignores an equal branch of government and holds themselves above the law?

Join those on both sides of the political aisle in standing up for our Constitution and for preserving civil justice and accountability.

[More on your 7th Amendment rights]

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(c) Copyright 2011 Brett A. Emison

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