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| Editor. Eric Waltmire |
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Presidential Candidates Take On Judiciary
"there is no liberty, if the power of judging be not separated from the legislative and executive powers."
-Alexander Hamilton,
Federalist Papers No. 78.
"[G]rotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people" is how Newt Gingrich described the U.S. courts today.1 He is not alone among the Republican candidates for president in this election cycle. Rick Perry, Ron Paul, Rick Santorum, and Michelle Bachman have all taken to attacking the judiciary. Bachman is now out of the race and by the time this edition of the Brief hits your desk others may be out as well, however it is worth considering these attacks on the judiciary in light of this year’s Law Day theme: "No Courts, No Justice, No Freedom."
Newt Gingrich threatened to subpoena judges to have them brought before Congress to explain their rulings when they issue rulings that Gingrich does not agree with and to have U.S. Marshals arrest judges who refused to respond to the subpoenas.2 He further proposed to abolish the Ninth Circuit U.S. Court of Appeals, an idea sparked by a ruling it made regarding the use of "one nation under god" in the pledge of allegiance. He has also argued that the balance of power in government should come down to the decision of "two out of three" branches of the government.
Gingrich is not the only candidate to espouse proposals that threaten the independence of the judiciary. Rick Perry and Ron Paul have proposed to abolish lifetime tenure of federal judges and, for Perry’s part, instead institute two year terms.3 Perry also proposes to allow Congress to override the Supreme Court with two-thirds vote of both the House and Senate. Rick Santorum supports the abolition of the Ninth Circuit calling it "rogue" and a "pox on the western part of our country."4
Gingrich has cited Jefferson’s 1802 move to abolish 16 of the 35 federal judges as precedent supporting the ability to abolish the Ninth Circuit. However, as Matthew Franck has written, Jefferson’s actions in 1802 to repeal a law passed in 1801 expanding the judiciary is not precedent for the proposed abolition of the Ninth Circuit.5 The 1801 law created 16 new judgeships and the outgoing Adams administration filled those seats just before Jefferson took office. When Jefferson took office, his party now in the majority, he repealed the 1801 act and placed all back to as if the 1801 act had never passed thereby eliminating the newly created judgeships. However, no new judgeships were created by the 1802 repeal.
Those proposing to abolish the Ninth Circuit cannot reasonably propose to leave all the western states without an appellate court. Therefore, the idea must be to abolish the court and then recreate it the next day or to create two or three circuits where the Ninth Circuit used to be with new vacancies. This would not be following the 1802 "precedent" as no new judgeships were created in that instance. Further, such a move is an obvious attempt to avoid the judicial life tenure requirement—a requirement intended to fortify judicial independence.
Moreover, manipulating courts to serve ideological purposes has been rejected in the time since Jefferson as noted by Professor Michael Dorf.6 First, Democrats in Congress rejected the President, being of its own party, when Roosevelt attempted to increase the size of the Supreme Court to protect his New Deal legislation. Second, the Senate—in presidential impeachment proceedings beginning with Andrew Johnson and extending through Clinton—has accepted the principle that impeachments should not be sustained on the basis of policy differences—a principle that should also apply to the impeachment of judges.
These candidates’ calls to manipulate, and in some cases ignore, the Judiciary originate from the candidates’ dislike of certain court rulings. However, manipulating court structures to serve ideological goals has and should be rejected. Moreover, the idea of providing Congress with the power to override the courts’ constitutional decisions subverts the courts’ province in our form of government to interpret the laws and to be "faithful guardians of the Constitution" and should likewise be rejected. As Hamilton said, "Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper [integrity and independence] in the courts: as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today."
1 Jill Lawrence, Who’s More Radical, Gingrich or the Courts He Wants to Abolish?, National Journal (Dec. 16, 2011), at http://decoded.nationaljournal.com/2011/12/gingrich-the-radical-subpoena.php
2 Lucy Madison, Gingrich: Gov’t branches should rule 2 out of 3, CBS News (Dec. 18, 2011), at http://www.cbsnews.com/8301-3460_162-57344825/gingrich-govt-branches-should-rule-2-out-of-3/
3 Rick Perry, Newt Gingrich, Fed Up!: Our Fight to Save America from Washington, (Hachette Digital, Inc., 2010); Peter Hardin, Rep. Paul Favors Right to Vote U.S. Judges off Bench, GavelGrab (Mar. 8, 2012), at http://www.gavelgrab.org/?p=18647.
4 Nick Wing, Rick Santorum: I Would Eliminate The 9th Circuit Court Of Appeals, The Huffington Post (Feb. 3, 2012), at http://www.huffingtonpost.com/2011/02/03/rick-santorum-9th-circuit-court_n_818230.html
5Gingrich’s Awful Proposal to Abolish Judgeships—Part 2, National Review Online (Dec. 16, 2011), at http://www.nationalreview.com/bench-memos/286040/gingrich-s-awful-proposal-abolish-judgeships-part-2-matthew-j-franck
6 Michael C. Dorf, Newt Gingrich Is Right That Judicial Supremacy Has Been Challenged Before, but Wrong to Try to Turn Back the Clock, Verdict (Dec. 28, 2011), at http://verdict.justia.com/2011/12/28/newt-gingrich-is-right-that-judicial-supremacy-has-been-challenged-before-but-wrong-to-try-to-turn-back-the-clock
Eric Waltmire is a registered patent attorney at the Erickson Law Group in Wheaton, where he handles matters in the areas of patents, trademarks, intellectual property strategy, brand protection strategy, and anti-counterfeiting strategy. While handling a range of patent subject matter, he focuses on the areas of Internet, computer science, and electronic technologies. Eric is a member of the ISBA IP Section Council and has served as the chairman of the Internet & Computer Law Subcommittee. Before joining the Erickson Law Group, he was a staff attorney for the judges of the Eighteenth Circuit Court of Illinois.
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