Posts Tagged ‘Courts’

Newt Gingrich’s “Zany” Proposals for the Courts

Saturday, December 17th, 2011

"Zany" Court Proposals?

There are those in media who can’t wait to tell you that Newt Gingrich is nuts for wanting to change the courts in any way. Their arguments consist of a defense of the status quo, and they speak in haughty terms about the sanctity of the Constitution, but let us be honest and admit that such huffing and puffing is more bluster than substance.  After all, the US Constitution already provides most powers over the formation of the judiciary to Congress.  They set the number of judges on a particular court, and they set the jurisdiction of the courts, and they decide how many courts there shall be, except that there must be a Supreme Court, which is spelled out in Article III.  The history of Congress changing the composition of the courts is as long as our history, as Gingrich pointed out aptly, but I disagree with some of the examples he used, including particularly the scheme pushed by Franklin D. Roosevelt to pack the court with friendly justices.

When Roosevelt found that much of his New Deal program was being found unconstitutional by the “nine old men” on the Supreme Court, he concocted a scheme to change the balance in his favor.  He sent surrogates to Capitol Hill with a plan to add six more justices to the Supreme Court, all of which he would ultimately nominate.  At the time, most of his programs were being found unconstitutional by 6-3 or 7-2 votes, so by adding six more, he would attain a working majority of 8-7 or 9-6 on many of these issues.  It was such a crass attempt to change the court for short-run political advantage that even his own party in the Senate went into virtual convulsions at the suggestion.  This effectively killed FDR’s first court-packing plot, but it did not stop his more subtle plan.

FDR saw that he wasn’t going to get by with such a crudely overt attempt to subvert the court to his will, so he came up with a secondary plan, and he waited a while to implement it.  He discovered that most of these nine old men were not particularly wealthy, and so none had any plans to retire, since at the time, justices could retire to pensions one-half their previous salary.  As Supreme Court justices, most had acquired nice fat mortgage payments, so that to retire would make them unable to live in the manner to which they had become accustomed.  FDR therefore had his surrogates in the House introduce a bill that would increase the pensions of the justices to 100% of their salary, so that they would be induced to retire.  It worked, and in rapid succession, while everybody was focused on his overt plan to pack the court in the Senate, none really noticed this adjustment introduced in the House.  In the end, he got his way, and New Deal programs sped along through the courts.

What Gingrich proposes is not nearly so radical as FDR had accomplished, and yet it is met with more outrage among leftists who would go on record having supported FDR’s plan at the time, they being of the sort who see the Constitution as unlimited in its flexibility.  The truth is that to eliminate the 9th Circuit Court as Gingrich proposes is not such a radical idea in the context of court reforms and changes throughout our nation’s history.  It’s certainly worth considering because some courts have outlived their judicial usefulness or efficacy. All too often, the 9th Circuit Court has been used as an instrument by leftists to promote an activist agenda, and we should consider the merits of Gingrich’s proposal carefully.

On the other hand, the part in all this that bothers me is not that Gingrich seeks to restore the balance of power among the three branches, because like many others, including Mark Levin, whose book Men In Black details the myriad ways in which the courts have become their own sort of ruling oligarchy, I too think the courts need reform.  More troubling to me on the part of Gingrich is that this is the same guy who endorsed Dede Scozzafava for the 23rd District of NY, despite the fact that she is anything but a conservative.  That bothered many conservatives and Tea Party patriots at the time, and it should be noted that this gives me pause with respect to the sort of judges Gingrich might appoint to the high court if he were entrusted with the presidency, while admitting that Mitt Romney had not done any better.

This is the reason the selection of a president, or even a party’s nominee for that office is so critical.  On the other hand, in fairness to Newt Gingrich, it must also be said that the way in which his proposals have been greeted with shrill denunciation is a bit unseemly too, because the Constitution makes clear that the formation of the courts is at the discretion of Congress with the President’s approval through ordinary legislative means.  To raise the sort of ruckus we have seen over this issue since Thursday night’s debate is to overstate the importance of remarks that seemed more aimed at applause than serious legislative priorities.  I could be entirely wrong, of course, and Newt Gingrich might be the wild-eyed courts-smasher they’re all pretending, but it hardly seems likely.  While I question many things about Gingrich’s record, I wouldn’t call this one issue earth-shaking.  In point of fact, the US Constitution makes the issue plain:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. (Article III, section 1.)
Later in Article III, it’s given to Congress to establish the jurisdiction of the lower courts.  All in all, Article III makes it plain that the lower courts are subject entirely to Congressional discretion, and the Supreme Court’s make-up and number are likewise under the authority of Congress to determine. Gingrich’s proposals on limiting terms would require a constitutional amendment, and frankly, I have no problem with that either.  This is the primary reason for my opposition to the ridiculously shrill statements some in the media are making about this question, and therefore by implication, Gingrich’s suitability to the office.  There are plenty of  good reasons to question Gingrich, but frankly, this really isn’t one of them. In the establishment media’s desire to undo Gingrich, they’ve actually over-reached this time.
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