Newt Gingrich - Supreme Court Justices

Summary

In 2010, although Congressman Gingirch was no longer in office, he opposed the nomination of Elena Kagan to the Supreme Court. In an opinion piece discussing that opposition, he stated that her lack of judicial record and her evasiveness during questioning led to her being a nominee whose true judicial opinions were not known. Speaker Gingirch stated that the small amount of data known on her showed that she had a strong belief in judicial supremacy over the other two branches.

Congressman Gingrich has made the federal court system one of the central themes of his 2012 campaign. In October of 2011, Speaker Gingrich's campaign issued a white paper noting his view that the judicial branch had grown beyond its constitutional authority and established itself as supreme in the authority to interprate the constitution. He argues that the Congress and President must reassert their equal roles in this matter and he outlines a plan that he would follow to accomplish this task if elected President.

The first of these actions is reject the theory of judicial supremacy in the executive and legislative branches. Second, a Gingrich presidency would encourage the executive and legislative branches to use their constitutional powers to take meaningful actions to check and balance any judgments rendered by the judicial branch that they believe to be unconstitutional. A final action would be to encourage the executive and legislative branches to employ an interpretive approach of originalism in their assessment of the constitutionality of federal laws and judicial decisions.

To further accomplish the goal of bring the Supreme Court and the rest of the judiciary branch back in line, Congressman Gingrich proposes the following actions:rn

• Electing the right Senators to help approve the right judges
• Nominating and confirm the right judges
• Setting limits on federal court jurisdiction
• Using the impeachment power on judges that rule against the constitution
• Creating Statutory Guidelines for the Impeachment of Federal Judges in Congress
• Holding Judiciary accountability hearings
• Abolishing judgeships and lower federal courts
• Defunding the courts
• Adopting originalistic viewpoints in the executive and legislative branch
• Limiting the application of federal decisions
• Ignoring judicial decisions
• Challenging precedents via the Solicitor General
• Making statements of Executive Branch and Legislative Branch Policy Directed to the Judicial Branch
• Making the Issue of Defeating Judicial Supremacy a Campaign Issue
• Involving the State Legislatures and the People
• Reforming Law Schools

Justice Elena Kagan

On July 1, 2010 Congressman Gingrich appeared on Fox News and spoke about Elena Kagan's action concerning a partial birth abortion study.

At an undated speaking event, Congressman Gingrich states that there is no need for hearings and the reasons for Elena Kagan's disqualifications as Supreme Court Justice are clear. He points to her decision at Harvard law to bar the military recruitment of law students.

In August of 2010, Congressman Gingrich wrote an article for the American Enterprise Institute the National Review Online discussing his opposition to Justice Elena Kagan.

No on Kagan
By Newt Gingrich | National Review Online
Thursday, August 5, 2010

Last fall, Judge Diarmuid O'Scannlain delivered a lecture at Princeton in which he said that some of his colleagues on the Ninth Circuit Court of Appeals--the same court that ruled in 2002 that the inclusion of the words "Under God" in the Pledge of Allegiance was unconstitutional--saw themselves as social workers. Demurring from this conception of the judicial role, he declared that judges "have our separate roles to play."

As the confirmation process for Solicitor General Elena Kagan draws to a close, the question of whether Ms. Kagan is capable of conforming herself to the appropriate role of judge in the American system should be at the heart of the Senate's decision. For it is the idea of roles that is at the center of the American constitutional system, and the key test in any judicial confirmation process is whether the nominee understands the appropriate role of the judge in the American system of government. After reviewing Dean Kagan's testimony and other relevant documents, I believe she fails this test, and I urge the Senate to reject her nomination to the Supreme Court.

The role of a judge is always contextual. It is not the same in all places at all times; rather, as Princeton's Robert P. George has written, the role of the judge varies according to the powers assigned to judges by recognized authority. In the case of the United States, this authority is primarily found in Article III of the Constitution, which specifies the powers of the judiciary. But the Constitution did not come into existence out of nothing; it is the manifestation of a uniquely American political theory found in the Declaration of Independence, the Federalist Papers, and other great American texts. To understand the judicial role, we must also understand the political theory located in these documents.

Given her complete lack of judicial experience, sparse academic writings, and deliberately evasive testimony before the Senate Judiciary Committee, we do not have much evidence of her judicial philosophy.

The Constitution clearly delineates a limited role for judges. Steven Calabresi, the co-founder of the Federalist Society, has remarked that "there is simply no way to read the bare-bones language of Article III, in contrast to the detailed language of Article I, and conclude that the Framers meant for the Court to be a powerful institution." Indeed, Alexander Hamilton confirmed this view in Federalist 78, when he famously declared that "the judiciary is beyond comparison the weakest of the three departments of power," seeing as it has "neither force nor will, but merely judgment."

This idea of a limited judicial role is rooted in our Declaration. The Declaration affirms that governments "deriv[e] their just powers from the consent of the governed." All governmental power is, in this sense, "on loan" from the people, and no branch of government, including the judiciary, can exercise power that has not been given to it by the people through the Constitution.

Of course, this does not mean that the judiciary is supposed to let the elected branches of government run amok. Before taking their seats on the Supreme Court, justices take an oath mandated by Article VI to "support this Constitution." Thus, the judicial role, while limited, includes an obligation to enforce the Constitution's provisions and defend them when Congress and the president violate the Constitution. If the Supreme Court fails to stop the elected branches when they go too far, it falls into what Prof. Keith Whittington calls "judicial passivism" and fails its constitutional duty.

There may be a wide range of legitimate ways of interpreting the Constitution, but this outline of the judicial role demands that any interpretive method keep rigorously close to the text of the Constitution. Judges may act only with a specific textual warrant, and they must do so in a way that is consistent with the American legal tradition that separates a judge's personal opinion from her legal opinion. Judges cannot make up rights out of whole cloth, as the Court did in Roe v. Wade, and wherever Supreme Court precedent is fundamentally in conflict with the text and traditions of the Constitution, judges must reject these precedents rather than continuing to make the same unconstitutional mistakes.

Dean Kagan's judicial philosophy, as far as we can discern it, falls far outside of these constitutional limits. Of course, given her complete lack of judicial experience, sparse academic writings, and deliberately evasive testimony before the Senate Judiciary Committee, we do not have much evidence of her judicial philosophy. This unfortunate circumstance--one of Dean Kagan's own making--led Sen. George Voinovich, in a thoughtful speech on the Senate floor on Tuesday, to say that we "have no idea what [Dean Kagan] will do on the bench and whether she will be able to suppress her own values to apply the law."

But Senator Voinovich is not entirely correct. While Dean Kagan has ensured that the evidence is not voluminous, there are important indications of Dean Kagan's approach to the law. Perhaps the most important clue to her philosophy is her admiration for former Israeli Supreme Court president Aharon Barak. In 2006, Kagan said that Barak is "my judicial hero," and "the judge or justice in my lifetime whom I think best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice."

President Barak is well-known for his extreme judicial activism. This is the man who Seventh Circuit judge Richard Posner said has "created a degree of judicial power undreamt of by our most aggressive Supreme Court justices," and who "inhabits a completely and, to an American, weirdly different juristic universe."

It is not difficult to see why Judge Posner is so alarmed by President Barak's judicial philosophy. It was President Barak, after all, who said that "a judge has a role in the legislative project," an idea that directly conflicts with the American conception of checks and balances and a limited judicial role.

Yet, when Dean Kagan was asked in her hearings about this and many other quotations from President Barak, she quickly backed away from his judicial philosophy. In fact, she went so far as to say that she admired the judge "not for his particular judicial philosophy, [and] not for any of his particular decisions."

This doesn't make sense. How can Kagan simultaneously say that President Barak "best represents . . . the rule of law" but then disagree with the process by which he interprets the law? What Kagan is asking us to believe is that she agrees with the judge but disagrees with his judging.

The most plausible conclusion is that Kagan admires President Barak's judicial philosophy and thinks that it "best represents . . . the rule of law." But as we have seen, this philosophy is totally opposed to the American idea of a proper judicial role. In the American context, it is a philosophy that cannot be described as judicial; rather, it is more accurately called a political philosophy, a philosophy that describes political, rather than legal, conduct.

This non-judicial, political philosophy is not only used to justify creating rights that cannot reasonably be found in the Constitution; it is also used to justify ignoring limitations on federal action that are clearly found in the text. The judge who does not conform to the proper judicial role has no boundaries, either in adding to or subtracting from the Constitution.

Viewed through this lens, Dean Kagan's non-answers to Sen. Tom Coburn's questions about the Commerce Clause are telling. When Senator Coburn asked her if Congress could require all Americans to eat fruits and vegetables, she did not answer the question. Instead, she repeatedly said that the Court had interpreted the Commerce Clause "broadly," and was willing only to acknowledge the limitations the Court prescribed in U.S. v. Lopez and U.S. v. Morrison. Notably, she did not acknowledge that there may be additional sources of limitations on congressional power under the Commerce Clause. Her silence on the existence of other limitations on federal power, in the context of her judicial philosophy, gives us good reason to think she would eagerly uphold the individual mandate contained in the recently enacted health-care legislation, notwithstanding that such a mandate has no textual warrant in the Constitution. No responsible senator should vote for a nominee who is unwilling to acknowledge constitutional limitations on federal legislative powers.

Elena Kagan is an accomplished lawyer with a distinguished career. She deserves praise for her public service. But this public service ought not include a lifetime appointment to the United States Supreme Court.

White Paper

In October of 2011, Speaker Gingrich's campaign put out a white paper on the current, past, and future role of the judiciary branch in US government. The general consensus of the paper is that the Supreme Court and judges in general have exceeded the authority granted to them in the constitution and by their local governing bodies. This includes Congress and the Presidency relinquishing their part in the interpretation of the Constitution to the Courts. 

Within the paper, Congressman Gingrich argues for a Constitutional model to bring the role of the courts back in line with what the founders envisioned. The paper proposes three broad items that a Gingrich presidency would pursue. The first of these would be that the executive and legislative branches explicitly and emphatically reject the theory of judicial supremacy and undertake anew their obligation to assure themselves, separately and independently, of the constitutionality of all laws and judicial decisions. Second, when appropriate, the executive and legislative branches would use their constitutional powers to take meaningful actions to check and balance any judgments rendered by the judicial branch that they believe to be unconstitutional. Third, the executive and legislative branches would employ an interpretive approach of originalism in their assessment of the constitutionality of federal laws and judicial decisions.

To further elaborate on these three principles, the paper describes a series of actions that Congress and the President can undertake to help reign in the judiciary branch in the future. The actions include:

• Electing the right Senators to help approve the right judges
• Nominating and confirm the right judges
• Setting limits on federal court jurisdiction
• Using the impeachment power on judges that rule against the constitution
• Creating Statutory Guidelines for the Impeachment of Federal Judges in Congress
• Holding Judiciary accountability hearings
• Abolishing judgeships and lower federal courts
• Defunding the courts
• Adopting originalistic viewpoints in the executive and legislative branch
• Limiting the application of federal decisions
• Ignoring judicial decisions
• Challenging precedents via the Solicitor General
• Making statements of Executive Branch and Legislative Branch Policy Directed to the Judicial Branch
• Making the Issue of Defeating Judicial Supremacy a Campaign Issue
• Involving the State Legislatures and the People
• Reforming Law Schools

Fox Iowa Debate

On December 15, 2011 Speaker Gingrich participated in the Fox News Iowa Caucus. He spoke there about his theories on the Supreme Court and what he would do to reign in that body.

MODERATOR: This is something we have heard pressure little about in this election, but something that’s an important issue for a lot of voters.

Speaker Gingrich, let me start with you. You have proposed a plan to subpoena judges to testify before Congress about controversial decisions that they make. In certain cases, you advocate impeaching judges or abolishing courts altogether. Two conservative former attorneys general have criticized your plan, saying it alters the checks and balances of the three branches of government. And they used words like “dangerous,” “outrageous,” and “totally irresponsible.” Are they wrong?

GINGRICH: Well, the first half is right. It alters the balance, because the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people. [applause]

There’s an entire paper at newt.org — I’ve been working on this project since 2002, when the Ninth Circuit Court said that “one nation under God” is unconstitutional in the Pledge of Allegiance. And I decided, if you had judges who were so radically anti-American that they thought “one nation under God” was wrong, they shouldn’t be on the court. Now, we have… [applause]

I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.

We have a balance of three branches. We do not have a judicial dictatorship in this country. And that’s what the Federalist papers promised us. And I would — just like Jefferson, Jackson, Lincoln and FDR — I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing.

MODERATOR: What of the former attorney general? [applause]

These are conservative former attorneys generals who have criticized the plan, as I say, dangerous, ridiculous, outrageous, totally irresponsible.

GINGRICH: Sure. I’d ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? Eighteen out of 35 were abolished.

MODERATOR: Something that was highly criticized.

GINGRICH: Not by anybody in power in 1802. [laughter] [applause]

Jefferson himself was asked, is the Supreme Court supreme? And he said, that is absurd. That would be an oligarchy. Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country. That would be the end of our freedom. So I would suggest to you, actually as a historian, I may understand this better than lawyers. And as lawyers those two attorneys general are behaving exactly like law schools, which have overly empowered lawyers to think that they can dictate to the rest of us. [applause]

2012 Presidential Campaign Website Statements

PROTECTING LIFE AND RELIGIOUS LIBERTY
"There is no liberty without religious liberty” – Newt Gingrich

The revolutionary idea contained in the Declaration of Independence is that certain fundamental human rights, including the right to life, are gifts from God and cannot be given nor taken away by government. Yet, secular radicals are trying to remove “our Creator” – the source of our rights - from public life. Newt has an aggressive strategy to defend life and religious liberty in America.

Principles to protect life and religious liberty

1. Nominate conservative judges who are committed to upholding Constitutional limited government and understand that the role of the judges is to interpret the law, not legislate from the bench.
2. Combat judicial activism by utilizing checks on judicial power Constitutionally available to the elected branches of government.
3. End taxpayer subsidies for abortion by repealing Obamacare, defunding Planned Parenthood, and reinstating the “Mexico City Policy” which banned funding to organizations that promote and/or perform abortions overseas.
4. Protect religious expression in the public square such as crosses, crèches and menorahs.
5. Protect healthcare workers right to conscience by making sure they are not forced to participate in or refer procedures such as abortion.
6. Protect the rights of home-schooled children by ensuring they have the same access to taxpayer funded, extra-curricular educational opportunities as any public school student.
7. Protect the rights of teachers to use historical examples involving religion in their classroom. Nor should they be discouraged from answering questions about religion or discussing it objectively in the classroom.
8. Protect the frail, infirm and the elderly from the state’s arbitrary decision to terminate life.

Sponsored and Cosponsored Legislation

This representative has not been identified as sponsoring or cosponsoring significant legislation related to this title.

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