Posted on 12/19/2011 9:33:08 AM PST by SeekAndFind
In last night’s debate among Republican presidential candidates, Newt Gingrich defended his proposal to oust bad judges from office by statutorily abolishing the judicial offices they occupy. In a series of posts, Matt Franck and I will explain why we believe that this particular proposal of Gingrich’s is constitutionally unsound and politically foolish. (Matt and I may have somewhat different thinking on the underlying issues, so the views expressed by one of us should not necessarily be imputed to the other.)
In this opening post, I will set forth Gingrich’s proposal to abolish judgeships. At the outset, let me emphasize that this particular proposal is just one of many that Gingrich has offered to check judicial abuse of power, and my criticism of this proposal should not be mistaken as criticism of the others (many of which I affirmatively welcome). But, from what I can tell both from last night’s debate and especially from a recent meeting that I attended, it’s a proposal that Gingrich seems intent on highlighting.
In his “21st Century Contract With America,” Newt Gingrich sets forth his broad proposal to “[r]estore the proper role of the judicial branch by using the clearly delineated powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution.” As his lead example of “clear legislative and executive remedies” that “have been used in the past” for judicial usurpation of power, Gingrich states:
Thomas Jefferson and the new Congress abolished over half the federal judgeships and reorganized the federal judiciary with their repeal of the Judiciary Act of 1801 and their passage of the Judiciary Act of 1802.
The “white paper” that Gingrich links to develops his position more fully. Here is Gingrich’s historical account of the Jefferson precedent (pp. 16-17):
He was the first American president to confront a hostile judiciary. The Federalists had used the federal judiciary to enforce the Alien and Sedition Acts of 1798 to imprison Jeffersonian activists. After the Federalists lost the election of 1800, they had from November until March 1801 (back then inauguration did not occur until March) to try to slow down the emerging Jeffersonian majority. The Federalists more than doubled the number of federal circuit judges, picked the judges, and had their departing Senate majority approve the new Federalist judges. Thus the Federalists prepared to give up power confident they had boxed in the new majority.
The Jeffersonians reacted to this post-election court packing with fury. They called the new appropriators Midnight Judges. Jefferson and the new Congress abolished over half the federal judgeships and reorganized the federal judiciary with their repeal of the Judiciary Act of 1801 and their passage of the Judiciary Act of 1802. In the election of 1802 the Jeffersonians increased their majority over the Federalists in a campaign that further strengthened the legislative and executive branches against the judicial branch.
The Supreme Court ruled in Stuart v. Laird that this action was within Congress’s constitutional powers under Article III.
The “white paper” then sets forth Gingrich’s proposal (pp. 21-22), though much, much more tentatively than Gingrich himself has done recently:
Abolish Judgeships and Lower Federal Courts
The Constitution vests Congress with the power to create and abolish all federal courts, with the sole exception of the Supreme Court. Congress even has the power, as Congressman Steve King of Iowa frequently notes, to “reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle.” During the administration of Thomas Jefferson, the legislative and executive branches worked together to abolish over half of all federal judgeships (18 of 35). While abolishing judgeships and lower federal courts is a blunt tool and one whose use is warranted only in the most extreme of circumstances, those who care about the rule of law can be relied upon to consider whatever constitutionally permissibly tools they can find to fight federal judges and courts exceeding their powers. It is one of many possibilities to check and balance the judiciary. Other constitutional options, including impeachment, are better suited in most circumstances to check and balance the judiciary.
In the next post in this series, Matt will address the Jefferson precedent and explain why he believes that the history doesn’t support Gingrich’s proposal.
As Ed notes in his introductory post, Newt Gingrich relies on a precedent from the Jefferson Administration when speaking of his proposal to abolish courts (or seats on courts) in order to dispose of activist judges. Herewith a review of that supposed precedent.
In 1789, the first Judiciary Act created a number of district courts, with limited trial jurisdiction, and a Supreme Court with six members including the chief justice. An intermediate layer of courts (with some appellate jurisdiction over the districts, but they were really the principal trial courts) was created in three geographic circuits, but no judicial seats unique to those courts were created. Instead, Supreme Court justices “rode circuit” and sat together with district judges on the bench of the circuit courts. This meant a good deal of travel for the justices, who sat as the Supreme Court in the capital (usually for two brief terms each year) but spent a lot of time on the road pursuing their duties as trial judges at the circuit level.
In John Adams’ administration, long before the election of 1800, a judicial reform was proposed in Congress to expand the number of geographic circuits from three to six, and to give the circuit courts their own unique judges. This would relieve both district judges and Supreme Court justices of the necessity of serving on more than one court. The proposal stalled for a long time in Congress, but was finally passed in February 1801, after the defeat of the Federalists in the election of 1800, but while they still had control of Congress and the presidency. Sixteen judgeships were created for the new circuits. The Jeffersonian Republicans, still in the minority, had a number of substantive objections to the bill—which also included an enlarged role for the federal judiciary generally in the American legal system—but did not clamor too loudly until they realized that in the few remaining days before Thomas Jefferson’s March 1801 inauguration, the Adams administration was really going to manage to fill every single new seat on the new circuit courts.
Upon entering into control of Congress and the executive, the Jeffersonians viewed the judiciary as a partisan redoubt of the Federalists, and a redoubt whose occupants had life tenure, no less. So in 1802, they passed two acts. The first simply repealed the act of 1801 as of July 1, 1802, and directed that any legal actions pending in the courts created by that earlier act should be transferred to the appropriate court that the repeal act “revived” from the status quo ante. In short, it simply set the clock back to the original 1789 act, eliminated all the new circuit courts and their judgeships, and restored the system of circuit riding for Supreme Court justices. The second act passed in 1802, most notably, took one idea from the now-repealed act of 1801—the expansion from three judicial circuits to six. But it kept the Supreme Court justices on circuit duty.
In letters we can read today among the Supreme Court justices (who had been glad to be relieved of circuit riding by the 1801 act), the reaction to the 1802 repeal act was dismay. It seems that only one of them, Samuel Chase, raised a constitutional objection to the elimination of the circuit judges’ positions. The other justices, Chief Justice Marshall included, were more concerned about the constitutionality of their being required to serve on two courts with but a single commission as a judge. Yes, this had been done for a dozen years, since the original 1789 act, but maybe it was of doubtful propriety after all. Congress had also eliminated the August 1802 term of the Supreme Court, so it wouldn’t meet again February 1803, and the scattered justices had to decide what to do by correspondence, without meeting as a court in Washington. If they rode circuit once again, they were effectively acquiescing in Congress’s power to eliminate the circuit courts of the 1801 act and to reassign circuit duties to them.
That’s what they decided to do. And when Chief Justice Marshall, on circuit, heard a case carried over from one of the now-eliminated circuit courts, in which one of the parties complained that the Repeal Act was unconstitutional, he rejected the plea. In Stuart v. Laird (1803), with Marshall recused since he sat on the case below, the remaining justices of the Supreme Court affirmed his ruling. Addressing the question whether the justices could sit on the circuit courts as the 1802 act directed, Justice Paterson said that “practice and acquiescence” for a dozen years after the 1789 act “affords an irresistible answer, and has indeed fixed the construction” of the Constitution on this point. And that was that. Nothing was said in Stuart about the constitutional legitimacy of abolishing the 1801 circuit courts. But tacitly, it was approved, since it would not have been possible to transfer cases to the 1802 circuits otherwise.
Meanwhile, the ousted circuit court judges petitioned the Congress for the pay they said they were owed as judges serving “during good behavior.” But they had no courts to sit on, and no judicial duties—and neither had they been replaced by fresh appointees in their stead (this will become relevant in a moment). And so they got nowhere.
Now is this a precedent, as Newt Gingrich says, for the kinds of things he’s been talking about? Gingrich has at various times said that the Ninth Circuit could be abolished entirely, in order to get rid of its notoriously activist judges (though some good judges would be swept out to sea as well). Presumably Gingrich does not propose to leave the western states, now covered by the Ninth Circuit, entirely without any federal appellate court between the districts and the Supreme Court. Would he then abolish the Ninth Circuit one day, and recreate it the next with new vacancies for President Gingrich to fill? Would he instead break up the very large circuit into two or three new ones (an idea with some merit taken by itself)? In either case, Gingrich would not be following the precedent he claims to find in the 1802 legislation. If Congress abolished the Ninth Circuit, and either recreated it “as is” or created multiple new circuits—in either case with substantially the same geographic coverage, the same legal jurisdiction, and the same position in our three-tiered federal judiciary—then we would be witnessing an unconstitutional end run around the permanent tenure of federal judges. The “abolition” would be wholly pretextual, undertaken simply in order to bring about a new set of judicial vacancies.
Let me be clear about what happened in 1802. Some people then and now regard the Repeal Act and the Judiciary Act of 1802 as unconstitutional, inasmuch as fifteen judges (one seat was vacant), in losing their courts, also lost their putatively permanent situations and their compensation. If you think this, then Stuart v. Laird was wrong, and so is Gingrich’s proposal today. But one may reasonably argue that a court Congress can create, it can abolish. The motives of the actors in 1801 and 1802 were partisan (on both sides), but that is not the issue. One Congress, believing for whatever reason that an earlier Congress acted improvidently, can repeal what that earlier Congress did. That principle should even cover the creation of courts with life-tenured judges. So a good case can be made that Stuart v. Laird is correct.
But Gingrich’s proposal doesn’t match its supposed precedent. He doesn’t simply want to restore a status quo ante (for motives pure or partisan) by abolishing a court we don’t need. He apparently wants to abolish it and then recreate it in some fashion, with new vacancies. That’s cheating on the Constitution’s rules for the removal of judges one doesn’t like. If the problem is the judge (not the court), then the Constitution provides for impeachment. That’s difficult, both procedurally and in terms of the standards to be applied to justify removal. But it’s difficult for a reason. I have often said that judicial independence is something we could stand to have a lot less of. But there are right ways and wrong ways to bring activist judges to heel. This is a very badly wrong way.
HE HE HE... I love it ~!
But it will take more to clean up SCOTUS...
This incident perfectly illustrates why Gingrich should NOT be the nominee. While he is right that the Judicial branch is out of control, his proposed “solution” sounds even more out of control—and just plain weird. Newt’s problem is that he is 1) in love with his own intellect, 2) has a tin ear, and 3) has diarrhea of the mouth. He also has a ton of personal baggage and has an unsympathetic persona that is all-too-easy to parody.
If we nominate him, expect more of these blunders. Obama must be laughing his a$$ off.
PS—While I don’t like a lot of Paul’s positions, he is (sadly) the one with the best shot at unseating Obama.
“Matt Franck and I (Ed Whelan) will explain why we believe that this particular proposal of Gingrich’s is constitutionally unsound and politically foolish....this particular proposal is just one of many that Gingrich has offered to check judicial abuse of power, and my criticism of this proposal should not be mistaken as criticism of the others (many of which I affirmatively welcome).”
OK. Thanks Matt Franck and Ed Whelan. Now tell us all about the other efforts you enthusiastically SUPPORT to check judicial abuse of power.
I have to agree, but it needs to be done on the repubs watch as a nearterm means to reign in these activist judges and justices. The longterm actions by the dems would then need to be controlled carefully, if possible.
Wow, the man's a genius.
If congress creates it, congress can kill it, what a concept!!
That is what Newt said, what the authors disagree with, is they both think that this measure is too extreme, and if only we talked more with the left, they would work with us {and iran and n korea} and we could rein in those wadical, wascially commie judges.
I think if one is on the lower court and your rulings are overturned by the Supreme court three times for not being constitutionally correct you should be dismissed from your position and lose your benefits as not being competent to interpret the constitution!!! Thus proving you should never have been appointed.
Opening his mouth and sticking in his foot again. Same old Newt.
Oh yes. The Dem's had at all - the Presidency, a filibuster-proof Senate, and the House - for two years. Eventually, that will happen again.
Think of all the mischief they could cause if Newt's crazy/dangerous idea came about.
We'd become like a banana republic.
” I have often said that judicial independence is something we could stand to have a lot less of. But there are right ways and wrong ways to bring activist judges to heel. This is a very badly wrong way.”
Its the only way. Otherwise nothing will ever be done about it. Whats been done since 1802 up through today? Nada, zip, zilch. It just gets worse and worse. Time for a reality check.
Since when does a pissant Federal Judge have jurisdiction to strike down legislation passed by a sovereign state? The answer is they don’t they just do it anyway and they get away with it.
No where in the constitution does it say that Congress can not change these courts once established. Nor does it state that Judges should have or not have life - time appointments.
What it does say is that judges shall hold their office during good behavior. Legislating from the bench and usurping the Congress's responsibility by creating law through non-elected representatives is pretty bad behavior in my book.
There are 2 non-violent, non-revolutionary remedies under the constitution. Impeachment or Congressional redistricting. If the Republicans don't do this, the Dems will the next time they can.
Pubbies would be wise to look at the Ninth circuit, split it up for the stated reason that the territory is too large. Then disburse the liberals among the circuits and pack the vacancies with conservatives.
This gives them breathing room to go after any judges that need impeachment, but the basis of all this can not be for the stated reason that we just don't like their rulings, because that is not the best way to keep the majority with you. We have to keep the majority of people to retain control of the house and senate(should we gain it).
Is there any branch of the government that hasn’t gone wild?
Congress passes bills it doesn’t even bother to read, full of hidden pork.
Congressmen come in poor and leave rich thanks to lobbies and insider trading.
The President appoints zars and declares “conflicts”...
The judges impose abortions and gay marriage
The bureaucracy is an inextricable tangle
The tax code is 28,650 pages long.
It’s hard to imagine the American people wanting this state of affairs... perhaps if in exchange there were economic prosperity, but the Govt. presided over the creation of 700,000 billion dollars of toxic vapor-money and the invasion of millions of illegal aliens, and the lowering of school grades.
Any system that loses its core values will not work.
It’s a big mess, but in my opinion it calls for a gardener and not a revolutionist. It has to be wound down and not hacked. It will take a lot of political savvy and experience and not just perfect sounding opinions.
My vote would go to Newt precisely because my heart goes to the Ron Paul’s merry gang of kids.
Amen! commie libtard judges have no intention of following either the Constitution or Congress. They are rogue social planners and need to be vanquished. The queer judge from Kalifornia who threw out the people’s will for one man-one woman marriage is a prime example!
you slam Gingrich as having weird positions that would make Obama laugh his a** off and then you turn around and proclaim that nutjob (we caused 911 and why shouldn’t Iran have nukes?)Ron Paul has the best shot of beating Obama?.. that’s the most absurd post I have read in a long time
you slam Gingrich as having weird positions that would make Obama laugh his a** off and then you turn around and proclaim that nutjob (we caused 911 and why shouldn’t Iran have nukes?)Ron Paul has the best shot of beating Obama?.. that’s the most absurd post I have read in a long time
A good point, but a few things:
1. Ron Paul has a LOT of buzz—especially among Independents. Many people identify with his opposition to the Fed and he has captured the imagination of many people. Because of his ‘weird’ positions, he comes across as the one true outsider. Basically, like Obama posed as 4 years ago.
2. Gingrich is definitely part of the Establishment, so he is going to get less slack when he says this stuff. In contrast, Paul can (and does) get away with it. Like Obama, the MSM gives him a lot less scrutiny (at least so far).
3. I didn’t say that I liked many of Ron Paul’s positions; actually, the opposite is true. I just said he could win.
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