Gingrich’s Awful Proposal to Abolish Judgeships—Part 1

National Review ^ | 12/17/2011 | Ed Whelan

[Lib-Lickers 2]

you didn’t just say Ron Paul could win(which is ridiculous) you said Ron Paul has the best shot out of all of our candidates at unseating Obama... which is beyond absurd

[rbg81]

At this point in time, that’s true.

You say its absurd, but.....the proof is in the pudding. I know a lot of people though that Obama’s candidacy was absurd 4 years ago.

[Sudetenland]

LOL!!! "he is (sadly) the one with the best shot at unseating Obama."

Your last phrase gives the lie to the rest of your post Paulbot. Only a delusional Paulbot can possibly believe that Ron Paul would stand even a remote chance of defeating Obama. The nomination of [w]Ron[g] Paul would guarantee Obama a landslide victory.

[Sudetenland]

I see no material difference between Newt's idea of eliminating the 9th Circuit (for example) and then reconstituting it as two separate Courts and the two provisions of 1802 in which they eliminated the 3 additional courts (and the judgeships) that the 1801 law had established by revoking the law, then in the second law, reestablished the same 3 additional courts.

Frank and Whelan seem to focus their disagreement solely on the elimination of the judgeships and the fact that the Jefferson Congress did not reestablish those judgeships whereas Newt's proposal does. It is a very small distinction considering the larger issues. Besides that, Newt has included the possible impeachment of those judges, not simply eliminating their existence.

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.

Note my emphasis, Newt is very cautious in his recommendation and not going out willy-nilly saying "Fire the bastards!"

If Franck and Whelan were trying to show where Newt was wrong, I think they fail miserably.

[orthodoxyordeath]

It’s not a small distinction. Getting rid of a court that wasn’t needed is FAR different than getting rid of a court, redrawing it and filling it with conservative leaning judges. Newt would be far better off taking the more widely accepted position, that is, splitting the 9th Circuit. THAT position has legal precedent, in that there was the splitting of the 8th Circuit into the 10th in 1929 and the creation of the 11th Circuit out of the 5th Circuit.

[going hot]

One could split all the circuit courts five times each and have more than enough of them for one in each state and a few extra just in case.

They would then all be filled with the same loonies we have in them now.

The problem is not the number, it is the makeup.

[Sudetenland]

Except that the courts that were eliminated WERE needed, as proven by the fact that they were immediately reestablished. Only the judgeships were permanently abolished.

Also you have to remember that what Newt proposed was a last resort action, suggested solely as a remedy should all other attempts to correct the situation be exhausted.

[orthodoxyordeath]

The difference being that the judgeships weren’t all needed, especially since they were stacked by the previous president...

[Sudetenland]

The supreme Court Justices who were forced to ride circuit as well as serve their terms as SCOTUS Justices believed that they were very necessary, and as they were eventually replaced (SCOTUS Justices no longer ride circuit) they were necessary.

Besides, where in the Constitution is there any restriction or admonition against stacking the courts? They were duly nominated, vetted and given advice and consent of a legally elected Senate, and commissioned by the President. All was precisely as required in the Constitution and in Law.

I believe Whelan and Franck have drawn a distinction without a difference driven by their personal opposition (as lawyers) to Newt's assertion that lawyers are no more than mere mortals and that judges are not the supreme authority in our system.