Dear Newt Gingrich: Judicial Supremacy Does Not Exist

Adam Liptak of the New York Times has written an article on Newt Gingrich's views of the federal courts. The article basically contains the same information as an earlier report by the Washington Post (see analysis on Dissenting Justice). There is, however, an additional point.

Gingrich condemns what he calls "judicial supremacy." By that, I suspect that he means (the article does not explain, but this is a well known debate among legal scholars) the notion that the Supreme Court has the last word on questions of constitutional law. Gingrich cites to Cooper v. Aaron for that proposition. Decided in 1958, Cooper arose out of the standoff over desegregation in Little Rock, Arkansas. State officials argued that they did not believe segregation was unconstitutional, and they claimed that states could nullify rulings of the Court. The Supreme Court, however, said that its ruling in Brown v. Board of Education of Topeka, Kansas stated a constitutional principle, and that the Supreme Court's doctrine on the constitution is binding and controlling as constitutional law.

Many commentators argue that Cooper went beyond Marbury v. Madison (which established judicial review), and in many ways, this is a reasonable observation. But if Gingrich is really concerned about activist and imperialist judges, he could have pointed to much earlier precedent. In the early 1900s, the Court began to apply a very rigorous standard of review in cases challenging various economic and labor regulations. This infamous period is known as the Lochner era (named for Lochner v New York, a 1905 case that struck down a New York labor law in the baking industry). During the Lochner era, the Court invalidated over 200 laws - much more than during any other 3-decade period.

The Court would continue its conservative approach until the New Deal era, when it struck down several pieces of popular legislation that FDR promoted to deal with the impact of the Great Depression. Roosevelt's critiques of the Court, the terrible state of the economy, the popularity of economic legislation, and personnel changes on the Court led to a major shift in direction. The Court suddenly began applying a more relaxed standard and overruled the restrictive case law from the Lochner era.

The overruling of Lochner disproves the entire idea of judicial supremacy. While Supreme Court interpretation of the Constitution binds state and federal governments, its rulings do not end the debate over the meaning of the Constitution. Instead, the Court responds to politics, public opinion, social conditions, social movement activity, and other factors outside of mere judgment. Indeed, the involvement of the president and the senate in the appointments process ensures that the Court will reflect majoritarian or at least mainstream values.

Gingrich's rant on judicial supremacy is uninformed. It is also simply a reflection of his own ideological commitments. He limits his criticism to liberal opinions -- not conservative rulings that coincide with his own ideology.

Newt Gingrich: Latest GOP Candidate With Horrific Ideas for Federal Courts

Conservative and liberal observers have criticized comments that Newt Gingrich made regarding federal courts.  The Washington Post reports that Gingrich told reporters during a conference call on Saturday that he would seek to abolish courts that issue decisions he views are improper.

Gingrich has also repeatedly criticized federal judges who, adhering to well established Supreme Court precedent, enjoin public schools from sponsoring religious activity:

“Are we forced for a lifetime to keep someone on the bench who is so radically anti-American that they are a threat to the fabric of the country?” Gingrich asked.

“What kind of judge says you’ll go to jail if the word ‘invocation’ is used? If this isn’t a speech dictatorship, I’d like you to show me what one looks like.”

The Constitution permits the removal of federal judges through the impeachment process. Otherwise, they have lifetime tenure. Gingrich's comments, therefore, reveal his distaste for the Constitution, which the president is obligated to uphold.

Gingrich has also said that he would like to force judges to come before Congress to explain their rulings. Unlike other governmental actors, judges, already explain their rulings in opinions. Gingrich's proposal is unnecessary. It also would allow for abusive violations of the separation of powers. Gingrich mistakenly believes that judges should be accountable to Congress, rather than the Constitution.

To support his dangerous ideas, Gingrich cites to Thomas Jefferson, who, in 1802 led his party's decision to abolish numerous new judgeships that the lame-duck Federalist-dominated Congress created following Jefferson's victory over John Adams. But Jefferson's actions are hardly model behavior.

Encouraged by Jefferson, the new Democratic-Republican Congress suspended the operation of the Supreme Court to prevent it from deciding the constitutionality of the repeal of the new judgeships. Jefferson later asked Congress to impeach Supreme Court Justice Samuel Chase, who criticized Congress for repealing the judgeships.  Although this history is an embarrassing low-point in the treatment of the Court by the president and Congress, Gingrich invokes it as support for his own partisan agenda (Note: This history provides the background for the landmark decision in Marbury v. Madison).

GOP Candidates' Dangerous Ideas for the Court
Mitt Romney, Ron Paul and other Republicans have criticized Gingrich's ideas regarding the courts. Gingrich, however, is not the only Republican candidate who has dangerous views concerning the federal courts.

Rick Perry, for example, wants to abolish lifetime tenure for judges. This plan would undoubtedly make them more vulnerable to partisan control. Perry also wants to give Congress the power to overrule Court decisions by a 2/3 vote. Although Congress can already reverse the Court's interpretation of statutes by simply passing new legislation, reversing the Court on Constitutional matters requires a constitutional amendment, not a vote of Congress.

Although Ron Paul has criticized Gingrich, Paul has also advanced some dangerous proposals for the Court. Paul, for example, has introduced a bill called the "We the People Act." If passed, this bill would prohibit federal courts, including the Supreme Court, from deciding whether state or local laws violate the "the right of privacy, including issues of sexual practices, orientation, or reproduction. . .or. . .the right to marry without regard to sex or sexual orientation where based upon equal protection of the laws." Paul's proposal would divest the federal courts of the power to protect extremely important liberties against state infringement.

Paul's proposal would also prohibit any court ruling that "otherwise interferes with the legislative functions or administrative discretion of the states." This broad prohibition would effectively negate judicial enforcement of the Constitution and federal statutes, to the extent that state law conflicts with these provisions.

Gingrich Fading
Although Gingrich's ideas are dangerous, it seems that his openness in expressing them has frightened voters. Although Gingrich soared to popularity among GOP voters after Herman Cain left the race, it appears that voters are now taking a second look, and he is falling in the polls. In other words, even conservative voters are rejecting his extreme views.

Newt Gingrich: Poor Kids Will Only Do Work If It Is "Illegal" (Text and Video)

Newt Gingrich, the GOP presidential favorite du jour, made some interesting (translation: idiotic) comments about the plight of poor kids during a campaign rally earlier today. As reported by The Hill, a conservative political blog, Gingrich made the following statement during his speech (see video below):

Really poor children in really poor neighborhoods have no habits of working and have nobody around them who works, so they literally have no habit of showing up on Monday. . . .They have no habit of staying all day. They have no habit of "I do this and you give me cash" unless it's illegal.

As you can discern from this quote, Gingrich is a brilliant sociologist! He is so familiar with sociology and poverty, that he has never heard of the "working poor" -- millions of Americans who work daily but who cannot escape poverty. Also, this learned social commentator is unfamiliar with the struggles of unemployed poor folks who continue to seek legal work in this sluggish economy.

Gingrich has a simple solution to the complex problem of generational poverty:  Since the law requires poor kids to go to school, the schools could employ them as "assistant janitors" to "mop the floor" or "clean the bathroom" or in various other positions.  I wonder why great minds never thought of this before Newt did.

Searching for the Romney Antidote
It is almost laughable that the GOP continues to search for the "not-Romney" candidate. Mitt Romney is too moderate to capture the attention of rightwing voters, who will have tremendous power during the Republican primaries. Nevertheless, Romney is the only GOP candidate who seems to have an elementary grasp of basic facts related to government and the economy.

Conservative favorites Michele Bachmann, Rick Perry and Herman Cain have imploded due to their deep ignorance and personal failings. Now, conservatives hope that Gingrich will defeat Romney.

Fortunately, Gingrich has an uncontrollable urge to speak. Thus, he he will undoubtedly continue to spew ignorance throughout the campaign season. After Gingrich self-destructs, will conservative icon Sarah Palin take the plunge? Tune in!

Newt Video



Note: It is fun watching The Hill post negative news about Gingrich. This is possibly an effort to bolster Romney.

Plagues and Famine Next? Gingrich and Huckabee Warn of Paganism, Abortion, and Same-Sex Marriage

Newt Gingrich and Mike Huckabee have been busy lately. Both men recently made the headlines after Gingrich called Sonia Sotomayor a "racist" and Huckabee said "Maria" Sotomayor would make the Supreme Court "extreme." Now, the two have turned to other evils (literally). At a 3-hour event held yesterday, Gingrich, Huckabee and other speakers condemned paganism, abortion, same-sex marriage, and (of course) President Obama.

Highlights and Commentary

* Paganism??? Yes! Gingrich: "I think this is one of the most critical moments in American history. . .We are living in a period where we are surrounded by paganism."

* Miracle from God's Hand = American Revolution = Proposition 8? Yes!

Huckabee told the audience he was disturbed to hear President Barack Obama say during his speech in Cairo, Egypt, on Thursday that one nation shouldn't be exalted over another.

"The notion that we are just one of many among equals is nonsense," Huckabe said. The United States is a "blessed" nation, he said, calling American revolutionaries' defeat of the British empire "a miracle from God's hand."

The same kind of miracle, he said, led California voters to approve Proposition 8, which overturned a state law legalizing same-sex marriages.

* Thomas Jefferson wanted "God" in government? Yes!

Gingrich . . . said the ties to religion in American government date to the Declaration of Independence, when Thomas Jefferson wrote
that men are endowed by God with certain inalienable rights.

Jefferson's reference to "inalienable rights" does not describe a government that enforces religious doctrine, which Jefferson did not endorse. Instead, Jefferson used that language to invoke the concept of "natural rights," which posits that certain rights exist outside of any constitutional or legislative instrument.

Conservatives, however, say they abhor the recognition of rights that do not arise from a "strict" interpretation of the Constitution or narrow understanding of "the" intent of the Framers (as if they left a paper trail of complete agreement). Using Jefferson's broad language and his embrace of natural rights, one could reasonably argue that "life, liberty and the pursuit of happiness" encompasses things like same-sex marriage, abortion, and paganism, regardless of the text of the Constitution or the framers' intent. In addition, the Constitution itself contains several important provisions that protect the generalized concept of "liberty" from infringement. This constitutional text supports recognition of a broader set of rights and liberties than conservatives usually acknowledge.

* God "Hearts" the USA more than any other place on the Earth? Yes! Huckabee: "I am not a citizen of the world . . . I am a citizen of the United States because only in the United States does citizenship start with our creator."

That's pretty powerful stuff, especially considering that "God is not a respector of persons." For purposes of law, the Constitution extends citizenship to "all persons born or naturalized in the United States and subject to the jurisdiction thereof." Neither the citizenship clause nor the Constitution mentions God or the "Creator."

By the way, the citizenship clause reverses the Supreme Court's decision in Dred Scott v. Sanford, which held that whether "slave" or "free" blacks were not "citizens" of the United States. Was this ruling divinely inspired?

Newt for President? Um....

I think it's safe to say that this is not a good plan to win moderates, libertarians and the White House.

Newt for president?

Newt Gingrich, the Republican former Speaker of the House, didn't rule it out last night in Ashland, before he was to address a packed house of 650-plus at Randolph-Macon College.

Gingrich and his wife, Callista, "will look seriously and we'll probably get our family totally engaged, including our two grandchildren, probably in January, 2011, and we'll look seriously at whether or not we think it's necessary to do it," he told reporters during a sit-down interview before last night's speech.

"And if we think it's necessary we'll probably do it. And if it isn't necessary we probably won't do it."

Lunacy from HuffingtonPost: Jesse Berney Says Democrats Should Ignore the GOP in January!

Moments like today help me appreciate the danger of having the suffix "wing" attached to your ideological preference (despite having previously described myself a leftwing progressive). Jesse Berney, an outspoken Clinton and now Obama supporter, has a piece of advice for Democrats, which he has posted on Arriana Huffington's blog: ignore the GOP! Berney says that the Democrats should do the exact opposite of what Obama has promised in his campaign (unity and change) because Republicans (all of them?) have attempted to demonize Obama as a radical, socialist, buddy of terrorists, etc. For this reason "bipartisanship is not an option for them." According to Berney, if the Democrats sweep the election -- whether or not they reach 60 in the Senate -- they should dismiss Republicans as irrelevant:

Democrats should just ignore them.

Ignore Republicans in Congress. Ignore their silly amendments, ignore their calls for hearings, ignore the speeches they give, and ignore them when they complain about being ignored.

Ignore their right-wing echo chamber. Ignore Rush Limbaugh and Matt
Drudge and Fox News and their newspapers and blogs. Ignore it when the
mainstream media amplifies them.

Ignore the daily talking points and the noise. Ignore the inevitable anti-Obama conspiracy theories. Ignore the horse race as their contenders jockey for position in 2012.

Ignore them all and just... govern.

If things go well on Tuesday, we'll have a Democrat in the White House and big Democratic majorities in both Houses of Congress. Even if we don't reach the magic number in the Senate, we can probably get 60 votes on major issues when we need them.

That means President Obama can set a bold, progressive agenda and Congress can pass it with little or no fuss.

Interesting. I think I should start an official rolling tally of the number of white liberal guys who have convinced themselves that conservatism and the GOP have died. Apparently, they mistakenly believe that the mere fact that the U.S. will likely elect a black Democratic president proves that left liberalism has swept the nation. For most of the year, I was one of the few liberals who questioned the popular view among liberals (especially academics) that electing Obama would represent a triumph over all manner of evil -- especially racism. The recent wave of liberal euphoria and political fantasies demonstrates that this contrarian conversation must continue and must get louder.

In many ways, Obama's victory would represent a symbolic advancement in race relations. And while I believe that symbols can inspire action, the fact that people agree on a symbol does not guarantee their unified political action (or any action at all). I just read a post on the blog Open Left which announces that a Field Poll shows Obama up by 22 in California. Despite this O-surge in the Bear State, Proposition 8, the anti-gay marriage initiative, has a strong chance of passing. This indicates to me that the blue revolution is largely an electoral victory, not a demand for comprehensive ideological changes.

The Democrats' probable victory results in large part from Bush/GOP exhaustion. Standing alone, it does not translate into the implementation of a leftist social or economic agenda, and it does not guarantee that a majority of the population would support such a platform. Berney's advice, if followed, would likely cause a 2010 repeat of the Newt Gingrich revolution that punished perceived liberal excess of the Clinton administration -- despite Clinton's fairly centrist (and even conservative) leanings. The liberal hype and gloating which gave us Gingrich pales in comparison to what is happening today.