I didn't see the Republican debate last evening due to illness. I was in the clutches of a robust URTI with attending coughing spells producing a thick, green, bile-like secretion reminiscent of a cheap zombie movie. Misery loves company and I just wanted to share.But I have watched much of today's coverage of the event and I need to ask, has Newt lost it? He wants to subpoena sitting judges? He wants to do away with whole circuits? He wants to impeach the judiciary according to his political whim? Ok, ok I know the history. I know Lincoln suspended Habeas Corpus and I know FDR tried to pack the Supreme Court. And if this was just a shot across the bow for our more activist justices, I say well done. But this was neither the time nor the place. And, if one attempts something like this, it behooves one to lay a little groundwork first, so folks can take it in context.
Look, I've seen the damage judicial activism can do and I take a backseat to no one in my frustration with the courts. Over the years I've watched California pass Proposition this or that on everything from taxes to immigration to affirmative action, and I've also watched as they were almost immediately struck down by the 9th. Circuit. I've seen judges take over school districts because they didn't like the funding or the racial makeup in a community. I've seen them invent rights that don't exist and ignore rights that do. Rather than defending and protecting the Constitution, we have chuckle-headed lawyers trained (it seems) in circumventing the the greatest political document ever written on the rights of man. I've seen it, I know it exists, and so have you. But Gingrich's remedy is bad politics and bad policy and it may well have ruined his candidacy.
I'm not a Constitutional lawyer, but I know the courts are a co-equal branch of government, and if the Congress or the President or a State has a case against one of the more "inventive" opinions handed down by the Rose Byrds or Willian Brennans of the World, then they have a Constitutional DUTY to tell the courts to piss-off and take it to the people. And then, guess what? Ultimately the people will decide. And to borrow from WFB, I'd rather be ruled by the first hundred people in the phonebook than the first hundred lawyers in the West Legal Directory.
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4 comments:
Hammer, I'm glad you brought this up. It was among the more questionable things Newt talked about on stage that night, and I really wish someone standing up there with him had called him on it.
I realize Newt was talking in shorthand, but clearly a man with the knowledge of the Constitution that he has would realize that any such moves would require the enthusiastic assent of Congress.
Congress may not override a Supreme Court decision if the decision interprets the Constitution or an Amendment, Congress can only override the decision by calling for a Constitutional Convention to change that provision of the Constitution or Amendment. (Not likely) If the decision interprets a federal law, Congress can amend or replace the law... In either case what would be wrong with "inviting" the judiciary to come before congress to provide further explanation on how and why they arrived at their disputed decision?
I'd vote for, in a New York minute, the dude who will do away with the supreme court. Nine old fogies who don't know their ass from third base about our modern world and so many times coming up with a 5 to 4 decision on a major topic. I can't remember the last 9 to 0 decision but I bet a pack of gum it was meaningless.
If I am correct (and I am correct), judicial review in this country started with John Marshall and Marbury v Madison. But the principle has been part of English Common Law since forever: But not law by fiat. Doing away with courts or harrassing sitting judges is clearly not a good idea for a variety of reasons. But what I would like to see is the next time a judge decides to take over the Kansas City schools because he thinks they're underfunded and sends in the US Marshalls, let the Governor have them met by the National Guard or the State Police, and in the nicest possible terms, tell the judge to go make sex upon himself. THEN, we can have the debate.
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