George F. Will: Gingrich's attack on courts is not conservative
WASHINGTON — When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when, discussing Bosnia and Washington, D.C., street violence, he said, "People like me are what stand between us and Auschwitz." (The Atlanta Journal-Constitution, Jan. 16, 1994). What primarily stands between us and misrule, however, is the Constitution, buttressed by an independent judiciary.
But Gingrich's hunger for distinction has surely been slaked by his full-throated attack on such a judiciary. He is the first presidential candidate to propose a thorough assault on the rule of law. That is the meaning of his vow to break courts to the saddle of politicians, particularly to members of Congress, who rarely even read the laws they pass.
Gingrich's most lurid evidence that courts are "grotesquely dictatorial" is a Texas judge's aggressive decision concerning religious observances at high school functions, a decision a higher court promptly (and dictatorially?) overturned. Gingrich's epiphany about judicial tyranny occurred in 2002, when a circuit court ruled unconstitutional the Pledge of Allegiance phrase declaring America a nation "under God." Gingrich likened this to the 1857 Dred Scott decision that led to 625,000 Civil War dead. The Supreme Court unanimously overturned the circuit court's "under God" nonsense. So, Gingrich is happy? Not exactly. He warns that calling the Supreme Court supreme amounts to embracing "oligarchy."
He says the Founders considered the judiciary the "weakest" branch. Not exactly. Alexander Hamilton called the judiciary the "least dangerous" branch (Federalist 78) because, wielding neither the sword nor the purse, its power resides solely in persuasive "judgment." That, however, is not weakness but strength based on the public's respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.
Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich's campaign against courts repudiates contemporary conservatism's core commitment to limited government.
Logically, Gingrich should regret the dictatorial Supreme Court decisions that have stymied congressional majorities by overturning portions of McCain-Feingold and other restrictions on political speech. Logic, however, is a flimsy leash for a mind as protean as Gingrich's, which applauds those decisions — and the Kelo decision. In Kelo, the court eschewed dictatorship and deferred to the New London, Conn., City Council majority that imposed a stunning abuse of eminent domain. Conservatives were appalled; Gingrich, inexplicably but conveniently, says he is, too.
Gingrich radiates impatience with impediments to allowing majorities to sweep aside judicial determinations displeasing to those majorities. He does not, however, trust democratic political processes to produce, over time, presidents who will nominate, and Senate majorities that will confirm, judges whose views he approves.
Although not a historian, Gingrich plays one on television, where he recently cited Franklin Roosevelt (and Jefferson, Jackson and Lincoln) as "just like" him in being "prepared to take on the judiciary." Roosevelt, infuriated by Supreme Court decisions declaring various progressive policies incompatible with the Constitution's architecture of limited government, tried to "pack" the court by enlarging it, and attempted to purge from Congress some Democrats who opposed him. Voters, who generally respect the court much more than other government institutions, re-elected those Democrats and so thoroughly rebuked FDR's overreaching that Congress lacked a liberal legislating majority for a generation.
To teach courts the virtue of modesty, President Gingrich would attempt to abolish some courts and to impeach judges whose decisions annoy him — decisions he says he might ignore while urging Congress to do likewise. He favors compelling judges to appear before Congress to justify decisions "out of sync" with majorities, and would sic police or marshals on judges who resist congressional coercion. Never mind that judges always explain themselves in written opinions, concurrences and dissents.
Gingrich's unsurprising descent into sinister radicalism — intimidation of courts — is redundant evidence that he is not merely the least conservative candidate, he is thoroughly anti-conservative. He disdains the central conservative virtue, prudence, and exemplifies progressivism's defining attribute — impatience with impediments to the political branches' wielding of untrammeled power. He exalts the will of the majority of the moment, at least as he, tribune of the vox populi, interprets it.
Atop the Republican ticket, Gingrich would guarantee Barack Obama's reelection, would probably doom Republicans' hopes of capturing the Senate and might cost them control of the House. If so, Gingrich would at last have achieved something — wreckage, but something — proportional to his swollen sense of himself.
Disclosure: This columnist's wife, Mari Will, is an adviser to Rick Perry.
George Will's email address is firstname.lastname@example.org.
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