April 2, 2012

The legal left sounds like Newt Gingrich?

A Wall Street Journal editorial says:
[T]he left has taken to mau-mauing the Justices by saying that if they overturn the [Obamacare] mandate they'll be acting like political partisans. The High Court's very "legitimacy" will be in question, as one editorial put it—a view repeated across the liberal commentariat....

Overturn any part of the law, the Justices are being told, and your reputations will be trashed. The invitations from Harvard and other precincts of the liberal establishment will dry up. And, by the way, you'll show you hate sick people—as if the Court's job is to determine health-care policy.

This is the left's echo of Newt Gingrich's threat earlier in the primary season to haul judges before Congress when it dislikes their rulings. Remember the political outrage over that one?
Well, there's a big difference between vigorous criticism of judges in the press and at the law schools — which is debate in the marketplace of ideas — and dragging them in person into the halls of Congress to berate them. But what exactly did Gingrich say? The WSJ provides no link or exact quote, but I Googled it for you.

Here:
[BOB SCHIEFFER, on CBS’s “Face the Nation"]: [O]ne of the things you say is that if you don’t like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that’s unconstitutional. But I’ll let that go for a minute.
I just want to ask you from a practical standpoint, how would you enforce that? Would you send the capital police down to arrest him?

GINGRICH: If you had to.

SCHIEFFER: You would?

GINGRICH: Or you instruct the Justice Department to send the U.S. Marshal. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word “benediction” and “invocation”? Because before you could — because I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it. Now clearly since the congress has....

SCHIEFFER: What if he didn’t come? What if he said no thank you I’m not coming?

GINGRICH: Well, that is what happens in impeachment cases. In an impeachment case, the House studies whether or not — the House brings them in, the House subpoenas them. As a general rule they show up. I mean, you’re raising the core question — are judges above the rest of the constitution or are judges one of the three co-equal branches?
Like I said: big difference.

If you won't acknowlege the difference between people criticizing judges in words and Congress physically compelling them, you're not in a good position to credibly explain why striking down the Affordable Care Act should not be understood as judicial activism.

46 comments:

LYNNDH said...

Gingrich's comments were way out of line. And, so is the pressure the left is trying to exert on the SC. To the left it is part and parcel of "class warfare".

Andy R. said...

Everyone should know that making a comparison to something that Gingrich said is completely outlandish and makes the person making the comparison seem ill-informed because Gingrich is a joke candidate for President that says completely unserious things.

Jennifer Whatnot said...

I'd like to think that lifetime-tenured federal judges, presumably at the top of their field and incredibly intelligent, can resist the kinds of social pressures the legal left are trying to put out there, and do their jobs. Am I the only one left who thinks judges really can be objective?

rhhardin said...

They're different but either is okay.

Congress oversees judges just like it oversees the President.

The judge can come or not, though, as a courtesy; and Congress can impeach and remove or not.

Then the voters get a say in the next election, either way, which is the reason it winds up in Congress.

Scott M said...

Did you have to put some rhetorical ice on that metaphorical black eye this weekend, Andy?

EDH said...

Well, there's a big difference between vigorous criticism of judges in the press and at the law schools — which is debate in the marketplace of ideas — and dragging them in person into the halls of Congress to berate them.

Didn't Obama already do that at the SOTUS, sans the literal "dragging"?

Matthew said...

Not really EDH; the Supreme Court could choose not to show up to the State of the Union. No one forced them to be there.

MaggotAtBroad&Wall said...

I don't understand where this notion came from that judges owe deference to Congress. Newt is right that the legislative, judicial and executive branches are supposed to be co-equals. All three branches swear an oath to uphold the Constitution, so they all ought to be concerned about the constitutionality of their actions. If a politcal party with majorities in the House, Senate and Presidency decides to radically ram through a clearly unconstitutional bill on a purely partisan basis, why is it not the duty of the highest court in the land to strike it down? That the liberal justices refuse to join the conservatives in overturning an unconstitutional bill makes THEM the activists who are violating their oath to uphold the constitution.

I remember reading once that Madisoin and most of the early presidents really only vetoed bills that were considered to be unconstitional. Public policy considerations, and politics, was usually not part of the equation.

Roger Sweeny said...

Any time someone files a legal case, you can be legally "drag[ed] ... in person" into court to answer the charges or be a witness. No one in the legal system seems to have any problem with this.

Judges already have to justify their decisions by writing an opinion. This makes it more personal. Is it really so different? Is it really such an imposition?

It's definitely a "dis" by the Congress, but so what?

Matthew said...

"Judges already have to justify their decisions by writing an opinion. This makes it more personal. Is it really so different? Is it really such an imposition?"

-- Congressional hearings just need to get Skype or a VTC or something to cut down on travel costs.

Beyond a Reasonable Doubt said...

It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law. Clarence Thomas's failure to recuse himself is shocking and appalling, and by all rights, he should be impeached.

Henry said...

I pretty much agree with Andy R. on this one, though with a smaller quotient of snark.

Gingrich has a long history of saying ridiculous things. He's a standard for overstatement.

Being that I agree with Andy R., I also agree with A. Althouse. Big difference.

EDH said...
This comment has been removed by the author.
EDH said...

Matthew said...
Not really EDH; the Supreme Court could choose not to show up to the State of the Union. No one forced them to be there.

Hence, I said "sans the literal dragging".

But it's customary for SCOTUS to attend the SOTUS, and Obama shanghai'd them.

At least Gingrich would offer judges notice.

Do you think it would be better to pull an Obama and invite judges to a phony surprise parties?

Scott M said...

It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law.

Really? That's what you've got? No mention about Kagan? What if it goes 5-4 to uphold. I suppose you'll have a problem at that point that she, not her spouse, was the solicitor general for the administration previously?

You'll be the first to complain about that, right?

Matthew said...

I just think it is funny for people in robes to be dragged around. It makes the kicking more comical when they have dignified robes on.

Matthew said...

"It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law. Clarence Thomas's failure to recuse himself is shocking and appalling, and by all rights, he should be impeached"

-- Because his wife shouldn't have an opinion, should she?

Why do you want women relegated to the home sphere?

James said...
This comment has been removed by the author.
James said...

the press and at the law schools

the marketplace of ideas

lol


...but seriously, you're a law professor and you think that expressions of unpopular/"offensive" views aren't muzzled? Have you heard of FIRE?

Tim said...

"Really? That's what you've got? No mention about Kagan? What if it goes 5-4 to uphold. I suppose you'll have a problem at that point that she, not her spouse, was the solicitor general for the administration previously?

You'll be the first to complain about that, right?"


No, of course he won't.

Double-standards always apply to the benefit of the Left.

Tim said...

-- Because his wife shouldn't have an opinion, should she?

Why do you want women relegated to the home sphere?"


For the Left, whatever it takes to advance the agenda is most certainly acceptable and good.

The ends totally justify the means.

Ann Althouse said...

"It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law. Clarence Thomas's failure to recuse himself is shocking and appalling, and by all rights, he should be impeached"

Of course, a recusal standard like that would hurt female judges much more than male judges, since it is the female judges who are more likely to have a spouse involved in some relevant worldly activity.

Why do lefties make such a display of their inability to see the big picture? It's embarrassing.

damikesc said...

It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law. Clarence Thomas's failure to recuse himself is shocking and appalling, and by all rights, he should be impeached.

But the Justice who helped craft the defense of the bill --- SHE shouldn't be recused, eh?

Why do you hate black people so much?

george said...

I think there can be an oversight function for Congress with the courts. For instance if a justice based their ruling on foreign law (other than common law or traditional applications as part of the roots of US Law) then there would be a very good case for impeachment and I imagine you would want them to testify and explain their thinking as an interim step to see if impeachment would be warranted.

But we had the instance where FDR extorted rulings out of the court by threatening to pack it with his flunkies and to my knowledge the court has never disavowed those rulings. I have asked about this on various blogs but never seen an answer. Did the court ever repudiate those rulings once it was free of FDR's threats? It seems to me if they have not then there is a very much nontrivial claim to be made that the court is not legitimate since it relies on those artificial precedents.

Either way it seems pretty clear that interference in the court's affairs is not unheard of.

An unrelated item I want to point out is that if the Supremes took a vote on Friday then by now Kagan will have reported the results back to Obama. We should be able to tell very shortly what the vote was based on how the White House reacts. If Obama starts running against the court then we can feel pretty good about things. I suspect we would see a lot of pressure from Obama's proxies and cronies in the media about how illegitimate the court is and how politicized it is.

The more the wailing the better the news.

edutcher said...

The Lefties learned long ago they weren't going to get what they wanted through the ballot box, so the started to pack the courts.

Now that they're being beaten at their own game, they're crying foul.

What Newt proposed was a bit extreme and, I think, part of the reason he fell out as the non-Romster.

PS Hatman needs to find better writers. He's become our poster child for outlandish and ill-informed.

Beyond a Reasonable Doubt said...

Now who is being embarrassing, Professor? Surely even righties can distinguish an involvement in "relevent worldly activities" and working to defeat, repeal, and/or overturn the very same law that is not before the Court? This isn't tangential, this isn't a minor component in a larger organization, this was one of the main focuses of Virginia Thomas's Liberty Central.

Scott M said...

this was one of the main focuses of Virginia Thomas's Liberty Central

And Kagan's focus as soliciter general on the defense of ACA was...?

Jay said...

Beyond a Reasonable Doubt said...
It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law. Clarence Thomas's failure to recuse himself is shocking and appalling, and by all rights, he should be impeached.


Hysterical.

But justice Kagan, who giddily celebrated the law's passage, should like totally be seen as impartial.

The shrillness of you clowns is indicative of the lack of an available fact-based or persuasive argument.

Matthew said...

"Now who is being embarrassing, Professor? Surely even righties can distinguish an involvement in "relevent worldly activities" and working to defeat, repeal, and/or overturn the very same law that is not before the Court?"

-- You know what other "relevant worldly activities" are probably more closely related to the bill than someone's spouse's actions?

Working to support the bill's passage and serving in the administration that is actually one of the people at the litigation table.

Oops. It's almost like this isn't really about legal ethics so much as trying to win. Maybe there's something else you meant to bring up that isn't easily debunkable?

Tim said...

"Now who is being embarrassing, Professor? Surely even righties can distinguish an involvement in "relevent worldly activities" and working to defeat, repeal, and/or overturn the very same law that is not before the Court? This isn't tangential, this isn't a minor component in a larger organization, this was one of the main focuses of Virginia Thomas's Liberty Central."

Please explain, if you can, without beclowning yourself, how Justice Kagan's conflict of interest either does not exist, or somehow is less than Justice Thomas's "conflict of interest."

Go on, try it.

machine said...

"...can resist the kinds of social pressures the legal left are trying to put out there, and do their jobs. Am I the only one left who thinks judges really can be objective?"

It is difficult to believe in their objectivity when they repeat a party's talking points during oral argument that directly conflict with their previous opinions the subject.

cubanbob said...

Beyond a Reasonable Doubt said...
Now who is being embarrassing, Professor? Surely even righties can distinguish an involvement in "relevent worldly activities" and working to defeat, repeal, and/or overturn the very same law that is not before the Court? This isn't tangential, this isn't a minor component in a larger organization, this was one of the main focuses of Virginia Thomas's Liberty Central.

4/2/12 10:39 AM

Kagan aside from being involved with the crafting of the bill as a diabetic would personally benefit from a section of the bill. She using your logic has a direct interest in sustaining this bill. As much or more so than what you posit Thomas with. You have demonstrated without a reasonable doubt that you are a lefty hack and a tool of the machine.

lgv said...

Agree, it is not the same. Gingrich's statement is outrageous, but that is to be expected. He's a man of big ideas, so he attempts to throw out profound ideas. So, the talks, talks, talks.

It it inevitable that by trying to be described as profound and provocative, sooner or later something ridiculous will come from his mouth.

It's no different than Biden talking endlessly. At some point he will say something absurd. He can't help himself.

The more a politician speaks off the cuff or extemporaneously, the higher the likelier he is to spout the big oops! It's simple math.

Remember Gingrich's early assessment of Ryan's budget plan.

AprilApple said...

Kagan peed her pants with leftwing glee when the law was shoved down our collective throats in the dead of night against the wishes of the American people, on party line vote - pushed by a corrupt pol named Nancy Pelosi.
If anyone needs to recuse herself, it's Kagan.

traditionalguy said...

Gingrich sure gets great ideas.

I heard that if arresting the Federal Judges to get them to recant UnAmerican Decisions doesn't work, then there will no choice except the arrest of a few Con. Law Professors and water boarding ring leaders examples.

Bob Dillon predicted this in Tombstone Blues..something about Gingrich trying to endorse the reincarnation of Paul Revere's horse.

Fr Martin Fox said...

Gingrich's comments were bizarre and deserved to be criticized even more than they were.

Hauling judges before Congress, as he proposes, is a terrible idea, regardless of how much judges may deserve criticism for their judgments. The solution for an out-of-control judiciary is not an even more out-of-control Congress.

This is what Tom Cruise called "galactically stupid." It's like the incredibly stupid "nuclear option" idea cooked up by the GOP under Bush, as a way to get judges past the pesky filibuster.

Because, guess what? The other side gets to do it too; so what did the Dems do? When the pesky filibuster stood in the way of Health Care...why they found a way around it.

(And, yes, I know the cases aren't exact parallels; they don't need to be. The point is, the GOP ought to have kept a consistent position on the filibuster, which is that it's a good thing--which it is, and it shouldn't be tampered with. Even if the Dems still did what they did, then at least you have some credibility protesting it.)

Anyway, back to Gingrich: this is one example of why his winning the nomination was so terrifying to a lot of folks. You never know what might come out of his mouth, or when.

Fr Martin Fox said...

RE: Ginny Thomas and Justice Thomas.

Again, this is a stupid argument on the part of the left.

The actual argument is that Ginny Thomas has a financial interest in the case--but what is that? Supposedly, she makes money on opposing Obamacare. Well, wouldn't the demise of Obamacare mean she has to find another profitable cause? So her interest might well be better served by the law being upheld, right?

In fact, doesn't she pretty much have a paycheck no matter what? Either because of her abilities--or, if you want to make the argument that her pay is really due to her marriage, then for that reason. Either way, the outcome of this case would seem to make little or no financial difference to either of them.

The real point the "Thomas-must-recuse" folks want to make--but they don't make it because it's ridiculous--is that Ginny Thomas' strong opinions are taken as proof that Justice Thomas can't be evenhanded.

Is it really necessary to point out how stupid and counter-productive this line of argument is? Let's watch the thread develop and see...

Roger Sweeny said...

george,

FDR wanted to pack the Court with his flunkies, but his "Court packing" plan was defeated in Congress.

It was a much more mundane law that got him all the Justices he wanted. Congress started up a pension plan that gave retiring Justices a big pension. Within a few years, most of the conservative Justices retired. FDR then replaced them with people he thought would vote his way.

Fen said...

Beyond a Reasonable Doubt: It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has -

Just for fun. How do you justify calling for a Thomas recusal but not a Sotomayor recusal?

Scott M said...

At another point, the president misspoke, almost saying he was sure the law would be overturned. “We are confident that this will be over, that — that this will be upheld,” he said, correcting himself.

Sounds like the President has already figured out which way this is going to go.

Scott M said...

Just for fun. How do you justify calling for a Thomas recusal but not a Sotomayor recusal?

You mean Kagan?

george said...

Thank you for the history lesson Roger. That clears a lot of things up.

I guess courts get packed slowly one way or the other. But FDR had the advantage of no term limits so he probably had more influence on the judiciary than any other president since the founding of the republic.

Calypso Facto said...

George said: We should be able to tell very shortly what the vote was based on how the White House reacts.

Obama Predicts Health Law Will Survive Challenge
Biden says Supreme Court will uphold health-care law

So ... George?? Uh oh?

Peter Hoh said...

If a politcal party with majorities in the House, Senate and Presidency decides to radically ram through a clearly unconstitutional bill on a purely partisan basis, why is it not the duty of the highest court in the land to strike it down?

I, for one, applaud the effort to repeal Medicare, Part D.

Tim said...

And today, Barack Obama, president, complained, ""And I'd just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law."

Oh.

So then, under Obama's logic, the duly constituted and passed laws that mandated "separate but equal" schools overturned by the Warren Court in Brown v. Board of Education resulted from unacceptable judicial activism.

Good to know that double-standards can now be cited by Obama as a defense of his probably prospectively unconstitutional law.

Otherwise, where is the defense for Kagan's refusal of recusal?

Fr Martin Fox said...

Peter: I have no objection to repealing Medicare Part D--but under what argument is it unconstitutional? What part of the Obamacare's critics' argument applies to Medicare Part D?