There Is No Power and No Reason to Subpoena Federal Judges

National Review Online ^ | Andrew C. McCarthy

[indianrightwinger]

There Is No Power and No Reason to Subpoena Federal Judges

December 19, 2011 12:21 P.M. By Andrew C. McCarthy I was surprised that the usually excellent Megyn Kelly’s debate question to Newt Gingrich about his proposal for reining in the judiciary intimated that former Bush administration attorneys general Michael Mukasey and Alberto Gonzales had panned the proposal as “dangerous, ridiculous, totally irresponseible, outrageous,” etc. To be sure, that’s what they said about some aspects of Gingrich’s proposal; but not the overall plan. In fact, as Megyn’s report states, Judge Mukasey said of Gingrich’s plan, “There’s a lot in there that’s good. Take a red pen to the parts that are bad, stick with the parts that are good, and run on it.”

For now, though, I just want to address a bad part that is getting most of the attention — as Kate’s post from yesterday indicates. That’s the business about issuing congressional subpoenas to federal judges to coerce them into explaining themselves before lawmakers. As many commentators have suggested, this proposal would violate separation-of-powers principles. The judiciary is a peer of the political branches. It would be no more appropriate for Congress to subpoena a federal judge (or that judge’s clerks) about the reasoning of one of the judge’s rulings than it would be for Congress to subpoena the president (or his top advisors) about a controversial decision that was within the president’s constitutional authority, or for a judge or the Justice Department to issue a subpoena to a member of Congress (or the lawmaker’s staff) to question that member about the deliberations over some legislative act that arguably went beyond Congress’s enumerated powers.

Put aside the constitutional problem, though. What I find most difficult to understand is the pointlessness —

[indianrightwinger]

This is the basic point that is being missed in the anger of Newties against anyone that criticizes his proposed remedy for renegade courts. Nobody is arguing you can't impeach a judge in the constitutional confines (for wrong doing), but there is no basis to subpoena, arrest, and impeach a judge for simply ruling to our dislikes.

[bunkerhill7]

Newt is in the first stages of Altzheimer`s.

[Thane_Banquo]

Simple question: If separation-of-powers means that Congress cannot subpoena judges, then a practice that has been tested by those same courts and found to be Constitutional? Why is Congress's oversight authority valid for the executive, but doesn't stretch over the judicial? I think the reason is that the northeastern elitist pseudo-intellectuals have a very firm grip on the judiciary, and don't want that grip challenged.

An excellent example of the necessity of this oversight is that Kagan ought to be questioned before Congress for refusing to recuse herself in the Obamacare case.

[Thane_Banquo]

Sorry, should read, "If separation-of-powers means that Congress cannot subpoena judges, then why is Congress allowed to subpoene the executive, a practice that has been tested by those same courts and found to be Constitutional?

[RC2]

One question here. If a judge continually violates the Constitution and is not impeached, who has control of this judge?

[BenLurkin]

Indeed, a free society can only benefit from allowing judges be answerable to the representatives of the people.

It is a simple matter of accountability.

[Thane_Banquo]

If a judge continually violates the Constitution and is not impeached, who has control of this judge?

The northeastern elitists, which is why the establishment Republicans at NRO are opposing Newt's idea.

[BipolarBob]

Subpoena Newt and see what he knows about the disappearance of Judge Crater.

[apillar]

There is always the power of the purse strings, congress could zero out the budget of the entire Judicial branch if they chose, defund all their staff (including security), kick them out of the federal buildings they occupy. This would seem like significant “persuasion” to make sure a Judge responds to a subpeona.

[null and void]

Feral Judges aren't above the law, they are the law.

Don't believe it?

Tell any judge what he can and can't do and see for your self...

[Thane_Banquo]

There is always the power of the purse strings, congress could zero out the budget of the entire Judicial branch if they chose, defund all their staff (including security), kick them out of the federal buildings they occupy. This would seem like significant “persuasion” to make sure a Judge responds to a subpeona.

At which point, the judges would simply issue a court order that funded the judicial branch, something they've been doing for years that is blatantly unconstitutional.

[null and void]

One question here. If a judge continually violates the Constitution and is not impeached, who has control of this judge?

Satan?

[Hodar]

but there is no basis to subpoena, arrest, and impeach a judge for simply ruling to our dislikes.

Granted, everyone will eventually look at the 'facts' and make an unpopular decision. That goes with the job.

However, some activist judges have opted to whole-sale make laws without a shred of authority (granted by the Constitution). I offer the polarizing "Abortion" as an example. I oppose Abortion (convenience murder) ethically; however what I find even more offensive is the upsurping of authority across the US without so much as a vote. In frank honesty, this policy should be set by the "State". Some states will have constituents who support Abortion, while others states will opt to oppose this practice. According to the Constitution, powers not enumerated by the Constitution, belong to the states - this is such an example.

The judges that "upsurped" this, need to be replaced. They had no legal grounds for implimenting this - and this set a precident that has since been further encroached. Why pass a law through the complicated Legislative branch, when the Judicial branch can arbitrarily decree it? Those bums gotta go.

[piytar]

It would be no more appropriate for Congress to subpoena a federal judge (or that judge’s clerks) about the reasoning of one of the judge’s rulings than it would be for Congress to subpoena the president (or his top advisors) about a controversial decision that was within the president’s constitutional authority,

Um, Congress did exactly that to Nixon and GW Bush (re the perfectly Constitutional firing of 8 DOiJ attorneys). And the courts upheld it.

This author is clearly ignorant of the law and history...

[blackdog]

Much of this problem would be resolved if judges gave clear, concise, and accurate rulings which had direct constitutional basis refernced in their decisions.

It is the lack thereof which frustrates me. Consider the entire illegal alien problem right now? We have US courts ruling to ignore their own laws, punishing states and officers for enforcing those laws, and filing injunctions to prevent the application of their own laws.

[Tex-Con-Man]

I'll bet Congress can find the power to control the Judicial branch if they look deep enough into the penumbras.

[Little Ray]

Dunno. It seems that the courts have slipped the reins and that there is no longer a check on them, or at least none that Congress is willing to apply.

[MrEdd]

Well, indiannutburger, nobody including Newt suggested impeaching them for us not liking them.

Now I know this is an actual thought and as such it is likely to simply rattle around in that vacuum box atop your shoulders... but it was suggested that judicial authority is limited under the constitution and that Congress finally start fulfilling its mandated authority to remove judges when they over reach that authority.

I know, I know, that is too simple and clear a thought for your mind, and you will continue to launch into this thread attacking Newt (who really is an unstable and crappy candidate) whether he was right on this or not.

Flame on.

[RC2]

That’s what I was afraid of.

[Huck]

There never was a check on them. It’s a fundamental flaw in the Constitution:

http://www.constitution.org/afp/brutus11.htm