Posted by: captainfalcon | December 24, 2011

More on Newt and the Judges

Chris can retreat into his map collection all he’d like, but some of us have dead horses to beat. I mentioned earlier that one of Newt Gingrich’s strategies for, as he would have it, “bringing the courts back under the Constitution” is to impeach judges who “issue[] unconstitutional opinions, assert[] arbitrary power, and otherwise usurp[] the authority of the legislature” (p. 21 of this). For Gingrich an easy case, where threats of impeachment would clearly be justified, is if:

Americans . . . ask that Congress pass a law insisting on the centrality ‘our Creator’ in defining American rights, the legitimacy of appeals to God ‘in public places,’ and the absolute rejection of judicial supremacy as a violation of the Constitution’s balance of powers. If the Supreme Court ruled that such a law was unconstitutional, the legislative and executive branches could take corrective action . . . explicit notice to the judicial branch in the form of legislation that ignoring limitations on jurisdiction can lead to their impeachment may temper judicial behavior (p. 20).

Politically motivated impeachment of Supreme Court Justices, ostensibly for flouting the separation of powers, is not unknown to US history. In 1804, Jeffersonians initiated impeachment proceedings against the Federalist Justice Samuel Chase, charging him with “pervert[ing] his official right and duty to address the grand jury [by delivering] an intemperate and inflammatory political harangue.” The impeachment ostensibly proceeded from outrage over Chase’s asserting extra-judicial power, but Senator Giles (a proponent of Chase’s impeachment) explained that its real motivation was not to enforce separation of powers, but to override it in the name of a substantive political program:

[A] removal by impeachment [is] nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.*

Notwithstanding Gingrich’s guileless argumentation to the contrary, Giles’s attitude grounds Newt’s infatuation with the impeachment power. But that alone does not make Gingrich’s program unconservative (only hypocritical and contrary to the original Constitution). What makes Newt’s program unconservative is that the failed Chase impeachment resulted in a deeply entrenched constitutional settlement that no conservative would want to disrupt. As Lawrence Friedman puts it:

[T]he failure of impeachment was not a clear-cut victory for either side. It was rather a kind of social compromise. The judges won independence, but at a price. Their openly political role was reduced . . . There would be no more impeachments, but also no more Chases. What carried the day, in a sense, was the John Marshall solution. The judges would take refuge in professional decorum. It would always be part of their job to make and interpret policy; but policy would be divorced from overt, partisan politics (132; emphasis added).

This is the kind of structural pax between two powerful, often conflictive, institutions that a conservative should celebrate — say a silent prayer of thanks for — and seek to work within (as Andrew would have it, trimming the relationship as opposed to overhauling it). But not Gingrich.

* See Lawrence M. Friedman, A History of American Law (pp. 130-132) for an excellent account of the Chase impeachment and its significance.

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  1. […] mentioned Lawrence Friedman’s A History of American Law two or so posts ago. In addition to its […]


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