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Extremism in pursuit of judges is a vice

Posted: December 27, 2011 10:34 a.m.
Updated: December 28, 2011 5:00 a.m.

(Columnist Kathleen Parker is on vacation. In her absence, Ruth Marcus, a columnist with the Washington Post Writers Group, is featured today.)

WASHINGTON -- In Newt Gingrich's America, states that balked at desegregating their schools could have ignored the Supreme Court with impunity.

In Gingrich's America, if the Supreme Court struck down the individual mandate to obtain health insurance, a re-elected President Obama would be free to ignore the ruling and order the mandate enforced.

These are not far-fetched extrapolations of Gingrich's views. They derive directly from his arguments for curbing the power of what he views as a "grotesquely dictatorial" judiciary. 

At the center of his critique is Cooper v. Aaron, the Supreme Court's unanimous 1958 ruling ordering the desegregation of the Little Rock schools, and rejecting Arkansas officials' defiance of the mandate to desegregate.

As the court wrote in an opinion whose force was underscored by the unusual act of having the nine justices sign it individually, "the constitutional rights of children not to be discriminated against ... can neither be nullified openly and directly by state legislators or state executives or judicial officers, nor nullified indirectly by them through evasive schemes for segregation ... "

The principle that the court has the last say on the meaning of the Constitution, the justices wrote in Cooper, is "a permanent and indispensible feature of our constitutional system."

Not to Gingrich. In a white paper outlining his views on the proper role of courts, he denounces the Supreme Court's assertion as "factually and historically false" and "a grand-scale power grab." In the years since, he argues, the president and Congress have unnecessarily and foolishly deferred to the court in constitutional interpretation.

In Gingrich's constitutional vision, a president and Congress that disagreed with a court ruling could simply combine to trump it. Two branches beat one in the Gingrichian calculus.

In "very rare circumstances," he says, "the executive branch might choose to ignore a court decision." Gingrich's example involves the court encroaching onto presidential prerogatives in the area of national security, as he believes the court did in cases involving Guantanamo detainees.

But a court's "overreach" is in the eyes of the presidential beholder. For a President Gingrich, it would be the detainee rulings. Why not the forthcoming health care ruling, or Citizens United? After all, under Gingrich's two-branch majority, the president and Congress agreed that the campaign finance restrictions overturned by the high court were constitutional.

Gingrich is the Ron Popeil --  “But wait, there's more!” -- of curbing judicial independence.

Don't like the ignore-the-ruling option? Congress could abolish the offending court. The liberal 9th Circuit? Poof! Gone! Or haul the offending judges -- deploying U.S marshals if necessary -- to explain their reasoning. Or move to impeach them. 

Gingrich's proposals are so off-base that Michael Mukasey, a former attorney general under President George W. Bush (and a former federal judge), practically ran out of derisive adjectives to describe them: "outrageous," "dangerous," "ridiculous," "off the wall."

Meanwhile, Gingrich's star place in the Republican firmament appears to be falling, as have those of Michele Bachmann and Rick Perry, with their similarly disturbing, if less emphasized, views on judges.

So why spend so much time on Gingrich and judges? In part, given the craziness of this political season, no one knows what might happen in Iowa and beyond.

And given the depth of hostility toward the courts, I worry that fanning a discussion about extreme approaches makes still problematic but less far-reaching assaults on judicial independence seem tolerable by comparison.

As precedent for the supposed mainstream nature of his proposals, Gingrich likes to point to Jefferson's signing of the 1802 Repeal Act, abolishing a set of judgeships that the rival Federalists had pushed through on the eve of leaving power.

This history lesson is not as dispositive as Gingrich would have you believe. As Ed Whelan and Matthew J. Franck have argued on National Review's Bench Memos blog, it's not clear that the Repeal Act was constitutional and, even if it was, "what was done then is not a precedent for what he is considering doing now" - "an unconstitutional end run around the permanent tenure of federal judges," as Franck put it.

Gingrich acts as if the Repeal Act was uncontroversial in its day. But here is Federalist Alexander Hamilton, inveighing against the measure at an emergency meeting of the New York City Bar: "The independence of the judges, once destroyed, the constitution is gone; it is a dead letter; it is a vapor which the breath of faction in a moment may dissipate."

In this age of endless faction, Hamilton's warning is timely -- and chilling.

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