Published December 15, 2011
Two former attorneys general under President George W. Bush have found a few things to like in Newt Gingrich's position paper on reining in the authority of the federal courts, but other parts, they say, are downright disturbing.
Some of the ideas are "dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle," said former Attorney General Michael Mukasey.
In a 28-page position paper entitled, "Bringing the Courts Back Under the Constitution," Gingrich argues that when the Supreme Court gets it wrong constitutionally, the president and Congress have the power to check the court, including, in some cases, the power to simply ignore a Supreme Court decision.
"Our Founding Fathers believed that the Supreme Court was the weakest branch and that the legislative and executive branches would have ample abilities to check a Supreme Court that exceeded its powers," he argues.
Mukasey and Alberto Gonzales, in exclusive interviews with Fox News' Megyn Kelly, said they are particularly alarmed by provisions such as allowing Congress to subpoena judges after controversial rulings to "explain their constitutional reasoning" to the politicians who passed the laws.
"The only basis by which Congress can subpoena people is to consider legislation. To subpoena judges to beat them up about their decisions has only -- if they are going to say that has to do with legislation they might propose, that's completely dishonest," Mukasey said.
"I think we have a great government, a great country because it's built upon the foundation of the rule of law. And one of the things that makes it great and the rule of law is protected by having a strong independent judiciary," Gonzales said.
"And the notion of bringing judges before Congress like a schoolchild being brought before the principal to me is a little bit troubling. I believe that a strong and independent judiciary doesn't mean that the judiciary is above scrutiny, that it is above criticism for the work that it does, but I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges."
Mukasey has counseled Mitt Romney, Gingrich's chief rival for the Republican presidential nomination, but said only once, and he would do the same for any GOP candidate. He and Gonzales said they were also not happy with the Gingrich call for the power to impeach judges or abolish judgeships following any ruling considered particularly outrageous.
They were additionally very skeptical of Gingrich's suggestion that we should just "do away with" the Ninth Circuit because of some of the left-leaning decisions from that group of jurists.
"The fact is the Constitution empowers the Supreme Court to establish lower federal courts. Presumably it can undo lower federal courts. But to say that you are going to undo an entire court -- simply because you don't like some of their decisions -- when there are thousands of cases before that court is totally irresponsible," Mukasey said.
Gingrich said that the U.S. does not have to "tolerate radical, anti-American judges rewriting the American Constitution." Among his proposals, Gingrich said he would kick judges off the bench if their rulings run too far afield of the Constitution.
"Judge Biery in San Antonio Texas on June 1st issued a decree that not only could students not pray at their graduation but they could not use the word 'benediction,' they could not use the word 'invocation,' they could not use the word 'God,' they couldn't use the word 'prayer,' they couldn't ask the audience to stand, and if they violated his order he would arrest and imprison the superintendent," Gingrich said at the Iowa Faith and Freedom Coalition speech in October. "Judge Beiry's court should be abolished now."
But he also cites recent decisions about terrorism and detainees by the philosophically-split Supreme Court.
"As president I would say, I would instruct the national security apparatus to ignore the three most Supreme Court decisions on terrorism and I would say those are null and void and have no binding effect on the United States and in fact as commander in chief I would not tolerate a federal judge risking the safety of the United States with some misguided interpretation," Gingrich said.
While technically it's possible for Congress to impeach a judge or eliminate a court, both Mukasey and Gonzales expressed serious concern about putting a judge's job on the line based on his or her decisions.
"I would tread very, very carefully down the road with this notion that 'okay, this judge has rendered a decision that we think is very unpopular and we're not happy with it so we're going to try to impeach this judge. I think that's not healthy. I think the way you deal with decisions made by judges that you are not happy with is you win presidential elections. You elect a president who is going to appoint people to the judiciary who understand the appropriate rule of judges," Gonzales said.
"That's why they have a judiciary that's supposed to be independent," Mukasey added. "That's why they have judges who serve guaranteed life terms who have salaries that can't be diminished during their lifetime so that they are independent of political pressure."
Both Mukasey and Gonzales applaud Gingrich for calling attention to problems in the judicial system. Both say they support his calls to make judicial appointments more of a focus of political campaigns, a preference for judges who follow the original intent of the Constitution and steering clear of foreign law in interpreting the founders' intent.
"There's a lot in here that's good. Take a red pen to the parts that are bad, stick with the parts that are good and run on it," Mukasey said.