12.16.11

Newt Gingrich’s Crazy Attack on Judges

At Thursday night’s debate, Gingrich trumpeted his plan to subpoena jurists who make controversial rulings. Attorney Gerald L. Shargel on the little constitutional hurdle in his way.

Picture this: A highly qualified and exceptionally well-regarded Manhattan federal trial judge rules, in a case before him, that the federal death penalty statute is unconstitutional. Federal prosecutors strongly disagree and bring the case to a federal court of appeals. Three judges consider the case. The question before them is whether, as a matter of law, the judge properly applied case precedent and constitutional provisions. The reviewing judges do not vote their personal preference; it matters not whether they favor or oppose the death penalty. In the ordinary course of appellate review the decision is made to reverse the ruling of the lower court, based on nothing more than legal precedent. In the reviewing court’s view, the trial judge got it wrong. No one challenged the judge’s intellectual honesty.

At last night’s Republican debate Newt Gingrich, with Michele Bachmann in chorus, heralded a new and unprecedented procedure. In his picture of America under a Gingrich presidency, that Manhattan judge would receive a congressional subpoena to appear and give a sworn explanation of his ruling. Imagine that. A congressional committee with a significant number of right-wing showboaters grill the judge. The first question the Manhattan judge might expect is whether he loves America. The remainder of the show is sufficiently clownish to boost Fox News’s ratings.

What Gingrich ignored last night, and what was only noted briefly by Ron Paul, is that under Article III of the Constitution, federal judges are appointed for life. Only personal misconduct can result in impeachment and removal. A judge may not be removed because of decisions with which Republicans disagree. Gingrich should be smart enough to know that subpoenaing judges is neither legal nor workable. But this historian also knows that the Army-McCarthy hearings made for good television.