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Newt on Judicial Reform: Dangerous, Outrageous, and Totally Irresponsible

I love the law.

I am, above most things, an academic. I love almost everything about what I’ve spent every day of the last eight years doing; since entering law school, my appreciation for philosophy and the rule of law has only deepened, in spite of all the late nights, liberal professors, and Red Bull-induced freakouts that occasionally end with me sleeping standing up in an elevator. (Happened. Two nights ago. Wouldn’t lie.)

Along with that appreciation has come a deep respect for, and a tireless defense of, law as a profession. The lawyer jokes are funny until they’re not jokes anymore; it’s incredibly easy to joke about the ethics, business practices, and overall brainpower of lawyers because (get ready for a dramatic declaration) lawyers are just about the easiest targets out there. Why? Because you don’t get it. I should say, you don’t get all of it; what people see when they’re exposed to law and the courts is a tiny, tiny, miniscule–nay, wee–fraction of what actually happens when a controversy becomes a case and is heard before a judge. You’ve not seen the work ad infinitum that goes in to researching and presenting a case.

I believe this is why so many people applauded Newt’s comments on reforming the judiciary during Thursday night’s debate, and why my head is now pounding through a perpetual caffeine overdose.

There I was, fresh out of my income tax final and looking for something to kill. (Only not. But…kind of. It was hard.) I parked myself in the library and settled in for a solid fifteen minutes of procrastination before snuggling up with my crim pro text and a man by the name of Miranda. I started flipping through my timeline and came across a clip of Newt Gingrich pontificating on what he believes is an overstepping in perpetuity of the judiciary. Check out the clip, then read on.

Done?

This is pandering in its worst form, especially his comment at the end about law schools fostering in their students a belief that they can dictate the law and lord it over the rest of the American people. I won’t call him a liar on this one (it depends entirely on the professor and the student), but I will call a spade a spade with regards to his debate strategy.

This segment sent me into a slow burn, and here’s why: if we start holding courts accountable to Congress for decisions in controversial cases, who, then, are we giving final authority over those controversial decisions? Congress? The same Congress who passed eighty five million pages of garbage and called it “recovery”? The same Congress who danced around a budget for hundreds of days? The same Congress who confirmed Justices Sotomayor, Kagan, Ginsburg, Stevens, Breyer, Marshall, Harlan, White, and Souter to the Court? HMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM?

We have Congress for a reason. We have courts for a reason. Some courts are more reliable than others; the 9th Circuit, for example, is notorious for being overturned on cert. Even assuming, arguendo, that Congressional oversight would fix all of our problems, would it be worth it? I think that it would not. In his response, Newt makes much of Dred Scott, Elk Grove (via the 9th Circuit) and other cases that, for one reason or another, are not looked upon with particularly high favor. Those are the bad cases, the cases that make you cringe–whether it be from the effect on the people, or from the reasoning that went into the holding. The thing about cases like Dred Scott, though, is that they were overturned. The Court looked at what happened, and went in a different direction. This is how it’s supposed to work.

Imagine for a moment a world in which appointed judges were required to bow and scrape before elected politicians every time a “controversial” (whatever the hell that means) decision came down. Can you imagine having to sit before the next Rick Santorum and explain why you ruled consistently with relevant provisions of Casey v. Planned Parenthood? Or Griswold? I’d rather clean a toilet with my own toothbrush than subject myself to the penumbras that would surely emanate from that “hearing.” Not to mention the effect the prospect of a hearing would have on the deliberation process; especially at the appellate level, judges and clerks should not have to worry any more than they already do about who their decision might send into a pearl-clutching fit of the vapors.

It’s true: the courts do overstep. Judges legislate from the bench, that that makes for results that are beyond frustrating. However, our system of checks and balances makes it possible to fix what even the courts manage to screw up; the legislature has the power to write and rewrite legislation, and the executive has the power to check the overchecking of the legislature via veto. To rip the power of interpretation away from the courts and settle it into the laps of career politicians would be beyond reckless.

I’m almost a lawyer; when I finally get to where I’m going, it will be my job to read the law, interpret it (which includes a historical analysis, so I guess we’re all historians now, aren’t we Mr. Gingrich?), and apply its principles to the hand I’m dealt.

It will not be my job to “read the American people,” and it will most certainly not be my job to pervert the law to fit the standards of a man whose job it is to put votes before principle, and acceptance in the soundbite culture before the rule of law.

Originally published over at The College Conservative

COMMENTS

  • rbdwiggins

    Have you read Newt’s Position Paper Supporting Item No. 9 of the 21st Century Contract with America?

    • http://amymillervrwc.wordpress.com/ Amy Miller

      …no? Maybe? Link?

      • rbdwiggins

        9. Restore the proper role of the judicial branch by using the clearly delineated powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution.

        Position Paper Supporting Item No. 9 of the 21st Century Contract with America:

        Bringing the Courts Back Under the Constitution

        I asked because this post appears to be a regurgitation of establishment talking points, as opposed to an informed critique of Newt’s actual position.

        Many of us that exist outside of academia clearly recognize the danger and the urgent need to reign in a runaway federal judiciary.

        May I also direct you to a recent Heritage Lecture: Judicial Reliance on Foreign Law.

        Welcome to the real world…

        • http://amymillervrwc.wordpress.com/ Amy Miller

          I’m just commenting on the new “balance” he suggested in his answer to Megyn. But I’ll read through his plan again and see if it makes me feel better…but I doubt it will.

          And as for the real world…thanks for the welcome, but I’ve been hanging out for a while.

          • rbdwiggins

            It’s bringing the federal judiciary back in balance with the original intent of the US Constitution. It’s a restoration.

            Not coincidentally, none of the actions or proposals Newt suggests are new, and none exist outside of the delineated powers and authority already granted to Congress and the Executive.

            As of late, neither Congress nor the Executive have had the courage to use them; Or, for purely political purpose and gain, Congress and the Executive have abrogated their constitutional responsibilities and sought cover behind the federal judiciary.

            Either way, our representative republic suffers, the States suffer and none suffers more than the individual citizen.

          • http://amymillervrwc.wordpress.com/ Amy Miller

            I only meant “new” in the sense that implementing what he’s suggesting would add something new to the shuffle.

          • Dave_A

            It’s another step toward parliamentary rule by Congress…

            It’s giving Congress power that was meant to reside with the judiciary – populist rubbish, plain and simple…

            Folks like Ron Paul and Newt love to advocate ammendments & legislation that increase the power of Congress over the other branches… Perhaps because… They’ve spent their careers IN CONGRESS?

            But as with most populist rubbish, it takes advantage of the current situation (Where part of Congress is controlled by the Right) to advocate an extremely dangerous centralization of power among the most flimsy & unstable branch of our government!

            Yes, it may sound good to some, for SCOTUS to have to ‘explain’ to Congress why they ruled in favor of this or that liberal policy…

            But what about the other side?

            What about having SCOTUS dragged on the carpet by outraged members of the 08-10 Dem-dominated Congress for their rulings against McCain Feingold, or against the DC and Chicago gun bans?

            What about if SCOTUS ever reverses Roe v Wade during a dem-dominated session of Congress?

            The entire POINT of having an independent judiciary, is to prevent US law from swaying in the popular winds – to prevent the exact sort of extreme stupidity you see in European parliamentary governments…

            The Founders knew there was such a thing as too much democracy.

            The separation of powers & the intentional weakening of Congress (a/o the UK Parliament) are evidence of this.

          • rbdwiggins

            It?s giving Congress power that was meant to reside with the judiciary ? populist rubbish, plain and simple?

            That’s Patently False…

            Let me reiterate this very important point. One that must be conveniently ignored in order reach your baseless conclusion: None of the actions or proposals Newt suggests are new, and none exist outside of the delineated powers and authority that have already been granted to Congress and the Executive by the US Constitution.

            The entire POINT of having an independent judiciary, is to prevent US law from swaying in the popular winds…”

            Apparently, you haven’t read Newt’s proposal or the position paper. I can only assume that you are relying on establishment talking points and a misguided understanding of original intent.

            By design, the judiciary was constructed as the weakest branch of the federal government.

            ?This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.? – Federalist Paper No. 78: Hamilton, June 14, 1788

            ?It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.? – Federalist Paper No. 81: Hamilton, June 25, 1788

            Fast-forward a few years?

            ?To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.? – Letter from Thomas Jefferson to William C. Jarvis, September 28, 1820.

            ?The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.? – Letter from Thomas Jefferson to Spencer Roane, 1821.

            Fast-forward to the Twentieth Century?

            In 1958, Jefferson?s worst fears regarding the federal judiciary?s usurpation of power became reality, and Hamilton?s assurances to the American people were proven to be inadequate. In a unanimous decision, the Supreme Court issued a judicial opinion in the case Cooper v. Aaron</em in which it asserted that the Supreme Court?s interpretation of the Constitution was supreme in importance to the constitutional interpretation of the other two branches of government, and that this judicial supremacy is a ?permanent and indispensable feature of our constitutional system.?

            Do you understand the gravity of that opinion? The Supreme Court ruled that its own interpretation of the Constitution was superior to the other two branches and that judicial supremacy is now permanent and indispensable.

          • rbdwiggins

            Is it possible to convince one of the moderators to close my open html tag @ Copper v. Aaron?

  • http://eyeonfreedom.com eyeonfreedom

    (1) You are student, not an academic. You are not even a lawyer much less a law school graduate. You are merely a blogger with an opinion.

    (2) You fail to explain why Newt’s suggestion to abolish a court is “dangerous, outrageous and totally irresponsible” or even “pandering.” As I read Article III of the Constitution, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the CONGRESS may from TIME to TIME ordain and establish”. There is nothing to prevent Congress from eliminating a court or modifying the term that a judge may sit from a lifetime appointment to one of a limited number of years as MANY have suggested including other “pandering” GOP Presidential candidates.

    (3) You claim not to like that judges have to account for their decisions. You must not like state courts very much where judges have to stand for election before the great unwashed periodically.

    Newt made a suggestion for reigning in the power of the federal judiciary, a concern that MANY conservatives share. If you do not like Newt’s suggestion or can think of an improvement or a better alternative, we are all ears. However, to trash Newt as “dangerous, outrageous and irresponsible” based on all your non-years of legal experience without making a logical argument in support of such a damning charge, something you may soon discover lawyers are required to do, strikes me as juvenile.

    • Scope

      and would reduce the entire judicial system to a spectacle. That is the opinion of former Bush Atty. Gen. Michael Mukasey in in interview with Former Atty’s. Gen. Mukasey and Gonzales So you knock the author of the diary because she isn’t qualified to have an opinion because she is not yet a lawyer. Do two former Republican Atty’s. Gen. qualify to speak a very similar opinion?

      First of all, Gingrich doesn’t have the first drop of power to do what he is proposing with his judicial reform proposals, and that is a saving grace to the USA. Even if he did have the power to push his plan through, what happens when the Democrats regain control of the House, the Senate or both? Would you grant the Gingrich powers back to a Congress with majority liberal control? Would you be happy to watch the liberals haul the SC justices into Washington if they decide that the Obamacare individual mandate is in fact unconstitutional? Would you be happy to see a re-elected Obama ignore a SC decision that deems the individual mandate unconstitutional, and carry on with his implementation of Obamacare? That is exactly what Gingrich is proposing.

      You have not made the case, but instead decided to crucify the diarist as a nincompop because she rightfully pointed out the pandering buffonery of one Newton Leroy Gingrich.

      Use your head for something other than a hat rack. If Gingrich ever made this idiocy happen, he is granting the same powers to the liberals who are directly responsible for the “activist judges” Gingrich is now railing against. Or do you plan on supporting a King Gingrich for life?

      • Menlo

        They only make a stronger case for reform.

    • retire05

      government consists of three EQUAL branches of government; the legislative, the administrative and the judicial. So no, no president can disband courts or force the judicial to account for their rulings. He just would not have that power, Constitutionally speaking.

      As to Item #2, the voting booth allows citizens to remove judges that they do not think rule in the best interest of the constituency. But the removal of a judge, via elections, does not over turn their previous rulings they made while sitting the bench. The system allows for a disputed ruling to be taken to the highest court in the land, the SCOTUS.

      Item #3 was just a slam that was unwarranted. The Constitution give the Congress powers to impeach a judge. But it is rare that is every done. To my knowledge, in the entire history of the U.S. there has only been one SCOTUS judge impeached.

      The Constitution states that judges will hold their seats in “during good behavior” and what Newt is saying is that he wants to be the arbitor of what “good behavior” entails. No one man should ever be granted such power. And you dismiss your own argument when you said that CONGRESS has the authority to ordain and establish lower courts. It is quite clear, Constitutionally, that the power of the lower courts lie with Congress, not the administrative branch.

      • avgjo

        I’m not sure that I can think of a source that confirms the three are coEQUAL. Indeed, reading the powers granted Congress in the Constitution, including those related to establishing courts, impeaching judges and related matters, it would seem that indeed the view that the legislative branch was meant to be the strongest holds water.

        The legislative is the most directly and most often accountable to the people. Inter alia, it seems this was the basis for the Founders’ having put the most power in that branch.

        • http://impudent.edublogs.org/ kyle8

          stand on this. But clearly as you read the constitution, and also the Federalist Papers, you see that congress has the real power over the Judiciary.

          Not the executive, but the congress. the congress can do almost anything they want to the courts. They can dissolve any court except the Supreme’s, and they can directly legislate on what laws can and cannot be adjudicated. However, they have chosen not to use this power and have conspired, over the years, to let the courts usurp that which is their legal authority.

    • http://amymillervrwc.wordpress.com/ Amy Miller

      1. Why can’t I be both? You, as merely a blogger with an opinion, surely can’t provide a valid opinion the extent of my education based on one blog post, can you?

      2. You’re right…the SCOTUS is the only Constitutionally-mandated court. I’m not challenging that idea. I’m challenging the prudence of exercising that power in the way Newt talked about in his response. What he was suggesting sounded awfully reactionary…take an ax to the 9th because of Elk Grove? In his response, he ignored the potential for correction via a higher court; the SCOTUS doesn’t always intervene, and doesn’t always overturn, but they have the power to do so. What makes a Congressional committee any more knowledgeable, wise, or prudent than the Nine?

      3. I never said that I’m against judicial accountability…just the brand that Newt endorsed in his response. I don’t think Congress is any more accountable with regards to the rule of law than the courts are, and it’s wrong to assume that they would be.

      I may have non-years of legal experience, but I’m allowed my opinion–even though I’m not 50 years old, I suppose. What’s the standard?

      The SCOTUS doesn’t tie Congress’ hands when they offer a decision; Congress is free to correct the missteps the court pointed out, if they so wish. In this way, “final authority” is sort of a misnomer. The SCOTUS has final authority over cases they grant cert, but that doesn’t mean the book closes forever on issues at large.

      • http://amymillervrwc.wordpress.com/ Amy Miller

        No…more…caffeine.

    • curtmilr

      between arguing over which of the three branches get to determine constitutionality, and the glaring fault, which is the labrynthian structure of government and courts which directly exceed the enumerated limits set for each branch in the written Constitution.
      Most current legislation would not pass the enumerated powers test.
      Most executive administrative bureaucracies and regulations fail that test.
      Judicial “activism” and the precedent system itself fail the test. All courts below the Supreme Court are creations of Congress and are wholly reliant upon Congress for their existence as the Congress determines “good behavior”.
      The People rule here, thru the Legislative and Executive branches, thus outweighing the Judicial, which is coequal only to the extent that the other two branches allow. The Justices pay and court maintenance, for examples, are a matter for Congressional appropriation and Executive execution. If that does not directly expose the fact of the superiority of those branches, there is a willful blindness in effect.
      The blatant usurpationsof power which We the People and States have allowed need to be reversed and eventually eliminated, or this great experiment in self-governance will fail, and soon!

  • Common_Cents

    How worried are you that he could achieve radical changes?

    • Scope

      Gingrich will never get any where near the WH with plans like these where he seems to think the liberals will never have any control in Congress again, or that he will be the president for life. Remember, the liberals will gain these same powers if they regain majorities and a liberal president is elected in some future election. This is pandering pure and simple. The man of 1,000 ideas does,’t always have good or correct solutions. Some of his decisions aren’t even well thought out.

      • Common_Cents

        President Gingrich would not have a chance to do much of anything that people think as radical. So it’s a moot point that people scream about like a bunch of monkeys in a tree, flinging poo.

        Yet, the same people that prefer wild accusations will not even look at what he actually accomplished and give him credit where credit is due.

    • http://amymillervrwc.wordpress.com/ Amy Miller

      …it’s the idea that he thinks what he’s proposing would fix the problem of judicial activism. It wouldn’t. See my point on “the next Rick Santorum”…might have been a cheap shot at Rick, but I think the premise is correct.

      And FWIW, I’m more than happy to give Newt credit where credit is due. He’s a top candidate in my opinion, and I wouldn’t start a dumpster fire if he got the nod.

    • Change Jar Conservative

      just the way that Mitt is rightly using it against him right now.

  • conservativecurmudgeon

    Whom are we giving final authority in controversial decisions?

    Well, as a student of the law, you know that Judicial Review is an IMPLIED power, not an explicit one. So, in controversial decisions especially, this authority belongs to THE PEOPLE. This is very clear throughout the Federalists, too. In fact, I would posit that Controversy can ONLY be decided by our republican institutions in the Legislative brach, at least decided equitably.

    So, this authority ought to go supermajorities in congress, period. Not 5 dinks in black robes. Radical Judicial activism (such as we have today) is the antithesis of Republicanism.

    I agree (mostly) wholeheartedly in the reforms Mr. Gingrich has suggested (especially now that our courts have become so activist, and have become oligarchical legislators) such as term limits for Supreme Court members, and expanding the US Circuits, and thus, perhaps the number of Supreme Court members. I disagree vehemently, though, with issuing subpoenas to Judges.

    • windwaker24

      and Judge Hudson up in front of Congress, lambasted them and dissolved their courts, you would have been okay with that? I agree wholeheartedly with this diary. FDR scared the courts into submission and look where we are today.

      • windwaker24

        Does Chief Justice Roberts and the other 7 justices who agreed with him on the Westboro Baptist case deserve to be hauled up in front of Congress because people didn’t like the ruling? I read the comments on the Web the day they released the ruling. Majority of them were angry. But the Justices actually had it right.

        • Scope

          if Obama, who hated the campaign financing decision, to the point that he derided the SC justices in the State of the Union address, if he just decided to “ignore” the justice’s decision?

          I cannot believe that so many do not see that Gingrich would be giving these same powers to future liberal presidencies and Congress majorities.

          Would everyone be happy if Obama had these powers that Gingrich is proposing? I promise there would be any future elections if that was the case.

      • Menlo

        Assuming that had been done consistently in the past by both parties (or would be), then it would not be a concern.

        Of course the real problem is that judges cannot and should not be entrusted with such decisions any more than any other branch. There is no justification for that.

      • conservativecurmudgeon

        I said I disagreed with subpoenaing Judges (although, I would personally enjoy watching a Judge like Vinson school the twits that passed Obamacare by the slightest of majorities and parlimentary tricks).

        In fact, the “Court Packing” failure is an argument FOR reigning in the Judiciary, not being even more submissive to it.

        Judges do not have a special pipeline on wisdom. Neither do overt obsequiousness to majoritarianism. That’s why I would reserve the right to ultimate legislative review to SUPER majorities (say three-fifths, or two thirds majorities).

        • windwaker24

          I apologize for my misunderstanding of your comment. But I still think the courts should remain independent of the people and other branches. I don’t think term limits are necessary. Just limit how they can rule (hold them to the Founding documents) and they will probably send themselves home out of boredom.

    • http://amymillervrwc.wordpress.com/ Amy Miller

      …since the entire process is inherently somewhat cyclical. I hit this briefly in a comment somewhere upthread. In response to your first point, if the authority to decide controversial decisions belongs to the people, what’s the point of the judiciary? The SCOTUS? Article III as a whole? We have courts for a reason–to interpret the law. It is not the legislature’s job to interpret the law.

      I think you guys might be forgetting that these controversial cases (ignore the criminal ones for a second) come to the court via a case brought by a single or multiple plaintiffs. These cases didn’t start out as bills that magically found their way to Justice Roberts’ desk–they started out as people (yes, people!) who had a problem with those bills.) When you suggest that we put these decisions into the hands of a Supermajority, you’re also suggesting that we put these people’s individual lives, histories, and futures into the hands of the legislature–how is that any more responsible than letting the courts work?

      Answer? It’s not. As I said, it’s beyond reckless.

      • Menlo

        If it is their job, they are not any more capable of it than the elected branches. It’s not an even remotely realistic expectation.

        Congress cannot decide individual cases. There are too many. Even the courts no longer decide individuals’ cases when they rule on laws in general and not their application in a particular case. The whole concept of “precedent” is another major reason the court system is such a sham. Regardless, the executive branch plays a role too, and it has an equal obligation to the Constitution as the other two. Many court rulings should have consistently been defied long ago.

        • http://amymillervrwc.wordpress.com/ Amy Miller

          I’m missing your point.

          • Menlo

            You claim Congress is no better than courts; I claim courts are no better than Congress.

          • http://amymillervrwc.wordpress.com/ Amy Miller

            Why add extra flourish to the bureaucratic shuffle?

          • Menlo

            Their lack of adherence to it is the same. Their lack of integrity and honesty is the same.

            I would change it for a few reasons. For one, elected officials do not try to defend unconstitutional positions on Constitutional grounds. For another, voters have a check on elected officials. The accountability is greater. For another, you have a larger number and broader range in agreement with Congress than with a small number of judges.

      • conservativecurmudgeon

        on the Constitutional Convention, and the Federalist Papers. They will do a much better job than I describing how they felt the final arbiter in nearly ALL matters pertaining to federal power (at least from a moral standpoint) was in the People’s House. They correctly felt that, as the body closest to “the people” it had the highest moral authority to determine the People’s collective will.

        But, they also fully understood that each co-equal branch had checks on the other, and that each played a role in the development of law, without one necessarily having a final say– which is why, ultimately, the Constitution itself can be amended.

        The founders would be horrified at the power the judiciary has amassed to itself. When the Marshall court ruled on Marbury, the court went many, many years before it again ruled something unconstitutional. It was a novel, and unforseen act by the court, and it was a power it checked on itself for a long, long time.

        There are many other roles that the Supreme judiciary performs beyond “interpreting” law: It has its own original jurisdiction, for example vis-a-vis the Federal City, and of settling disputes among contracted parties chief among them.

        • deringer

          The aspirations and discussion during the convention and the persuasion in the federalist papers never gave the treatment you imagine to the question of legal interpretation. They certainly saw government and its institutions as a popular creation, and I suppose I would accept your characterisation of it as ‘final arbiter’, even if the language is wooly.

          That final arbitration is a discussion of amendment, not legal interpretation. These were big times, the constitution was being drafted (indeed, from their position the constitution of the United States as a whole was being altered) and that the people’s will be made manifest through the law would have plainly been their intention.

          Again, that has nothing to do with legal interpretation.

          The idea that congress could be the final authority on legal decisions was briefly considered at the time, as a matter of fact. It was rejected thunderously, as the logical conclusion of such an act would be to morph the United States into a parliamentary system made presidential only by the legislature’s ongoing consent to it. Having liberated themselves from a similar system, and being all too aware of its failings, it should hardly be surprising that jurists of the day held the idea of popular supremacy of interpretation of the law in contempt.

          Also, “It was a novel, and unforseen act by the court”

          Absolute and utter nonsense. Are you simply making this up as you go along? The idea of judicial review, the crux of Marbury, is a logically inductive one. If a law is to be interpreted it must have a canonical interpreter; otherwise laws are simply opinions that can change from person to person. That person must, in a limited system of government with checks and balances, be neither the adminstrator or the creator of the law, as the creators would be able to rewrite it and the administrator would be able to abuse it.

          So natural is this conclusion that several colonial courts had previously established review, and had retained and regularly excercised that power after independence.

          Have you ever read the case? Did you not think to ask why it was so short, a scant handful of paragraphs to justify a huge implicit power? It was because all the intellectual legwork had been done decades before by other judges. Justice Marshall was simply rubber-stamping orthodox constitutional principles that the states had given to him.

          So less of this. It infuriates lawyers when people confuse and conflate disagreements about what the law SHOULD be with what the law is. Attempts by Gingrich and others to snatch the ability to interpret the law on account of limited overreaches by the judiciary are absolutely unconstitutional and make otherwise decent candidates sound stupid. Banging on a populist drum and threatening to send US Marshalls to disobedient judges is the behaviour of savages and banana republics. It has absolutely no place in this nation.

          • conservativecurmudgeon

            You’ve done so rather lugubriously by confusing what was a crystal clear point: The “development” of the law, versus it’s “interpretation”. I spoke not at all about congress having a final say in “legal decisions”. But, neither did the founders forsee a time when the jurists would take sections of the constitution and make them so elastic that we are now faced with the specter of ONE JUSTICE taking a decision about whether or not the constitution compels, as a matter of citizenship, citizens to enter into contracts and purchase items the manifestly do not want.

            THIS abhorrent situation has come about only because Congress has abdicated it’s role as the overseerers of the judicial system as it was clearly laid out in the Constitution. The Courts (other than the Supreme court) are creations of congress, and can be re-created by congress, period– as they can their numbers, their districts, their make-up, and so on.

            Further, if we take your point to it’s ultimate conclusion, why don’t we just stop having elections, and let the judges decide what’s best? (we’re practically there already). You seem to be of the opinion that the public’s input is rather secondary to the legal interpretation.

  • Scope

    Thank you so much for writing this most excellent diary pointing out the buffonish Gingrich judicial reform ideas.

    I love how some are so willing to grab onto his idiocy, and pandering, seemingly not even giving a moments thought to the fact that if Gingrich ever successfully got this legislation passed, which has about as much chance as a snowball in hell, that it also gives these same rights and powers back to any future liberal Congress and president.

    The only reason Gingrich is even proposing these “big great ideas” is because there have been some judicial decisions which have been “viewed” as wrongly decided. Hasn’t it been argued that Roe v Wade was wrongly decided? How many years ago was that, and it is still the law of the land, despite Republican presidents having majorities in both houses. Who has even attempted to pass new legislation to supercede the SC abortion decision.

    One thing Gingrich has been very good at, and that is making it sound like he can make every star twinkle at night, just by snapping his fingers, and who doesn’t want to see beautiful twinkling stars. The problem is is that it sounds good on paper, or perhaps in a well written sci-fi book, but it isn’t based in reality. Then again, who ever accused the masses of being realistic, especially those suffering the effects of a liberal education.

    • http://amymillervrwc.wordpress.com/ Amy Miller

      n/t needed

  • Menlo

    The judicial system has less integrity and honesty than the elected branches! It’s practice of “judicial review” has completely perverted the Constitution and the law, arguably to a greater extent than Congress! The nation would indeed be far better off without it.

    He got it absolutely right on the so-called “law” schools. But the greater problem is that they don’t teach law but rather how to violate the law, something that defines the very practice of judicial review today and throughout much of history.

    Drastic reform is a well-warranted idea, and I wish it were possible; but it is not going to happen. It may be, as you suggest, pandering. However, that makes it no less an ideal. I have absolutely no respect for the nation’s courts.

    • Scope

      hit straight at the educational system in the country, with most colleges and universities teaching law, or anything for that matter, cry out for reform of the educational system long before the court system. If we can’t get rid of the liberal educators, how can we get rid of liberal law school education, that teaches lawyers how to violate the law? The more critical reform is with education, long before judicial reforms. Once again, Gingrich doesn’t hit at the heart of most of the problems in this country that begin with a system that guarantees our students to be dumbed down, or for the “common cause”, yes, even in law school.

      • Menlo

        Certainly the nation’s culture, which influences both the courts and the schools, is a problem. However, it is more of an additional problem that parallels the existing ones.

        The court has no higher obligation to the Constitution than the other branches of government. It is no more capable of adhering to it and should have no special authority over it. In fact, by giving an impression to the contrary, it has less right to be taken seriously than any elected officials, some of whom at least openly acknowledge they care nothing about the Constitution.

        I guess we could reform the education system to teach students that our whole judicial system has been a sham. But I don’t know that will work too well.

        • Scope

          “The court has no higher obligation to the Constitution than the other branches of government. It is no more capable of adhering to it and should have no special authority over it.”

          Who in the hell do you think is supposed to rule based on the Constitution than our court system? Is it not the responsibility for the court system to uphold, or rule against legislation that has been passed by the legislature with respect to the constitutionality of that legislation? Why bother taking the Obamacare legislation to court then if the courts have no more authority to rule based on the constitutionality of the law. Should we just say the Congress and the president have the say on what we must live with in this country, and the courts be damned.

          Please don’t respond to this comment as I am more than willing to argue my points with someone who has their druthers about them. You apparently do not. You see a candidate, and everything goes by the wayside, and is excusable beyond that.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            to do so. more later

          • Menlo

            nt

          • Scope

            of upholding the Constitution, along with the presidency. That august body of constitutionalism never would pass any legislation that goes against the constitution. Nope never. So let’s put them in charge of the checks and balances because Newt says so. I hope your “more later” explains why you believe, as a member of the legal system if I am not mistaken, where the judiciary should have less power than the Congress. You argue against your own hero Bork, who understood the checks and balances of all three legs of the constitutional republic we live in. Did Bork say that the judiciary should be contained and constrained by the Congress? Not hardly. It was the Congress that denied him a seat on the SC.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            that no King or 5 lawyers could be trusted to do that. The evolution of the Sup Court as THE final arbiter is a transmogrification of the intent of the Constitution. As a practical matter, if any two branches insist on an interpretation of the Constitution, then that view prevails. What we have seen in the 20th Century and today is that the elected branches have found it more convenient to defer to the courts and to run against it for political purposes. More later

          • westcoastpatriette

            (remember a while back when we had the long thread on the diary by RoguePolitics?) And I brought up the very point that Perry is constantly trying to emphasize–that States also have a role to play in determining the Constitutionality of federal legislation. If I am not mistaken, all public servants in every state must take the oath to uphold the Constitution.

            The reason Perry is constantly mentioning the Tenth Amendment is because most of the unconstitutional laws that Congress passes violate the Tenth Amendment and usurp the power of the States and the people. And there is nothing in the Constitution that prohibits States from interpreting the Constitution for themselves. Federalism does not make federal branches more powerful than the States. Too often today, we think in terms of a hierarchy where the Feds are at the top of the organizational chart. That is not what federalism is and the States have a duty to protect their citizens when the feds are usurping the powers of the States.

            This is the biggest weakness I see in the Constitution that needs addressing and it touches on Newt’s points about the judiciary. The Supreme Court should not be the final arbiter when the States are challenging federal legislation on Tenth Amendment grounds–for obvious reasons. There is a built in conflict of interest as the Supremes are a branch of the feds.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            but that doesn’t mean that states shouldn’t consider Nullification under certain circumstances. more later

          • westcoastpatriette

            and nothing more. The Supremacy clause does not give the feds power to do whatever they want and it is supreme. They must stay within their delegated authority and if they do not, then the States should nullify to protect their citizens from the usurpation.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            the President have either affirmed it via law or inaction, the practicality of defiance comes into play. And I have no problem, depending on the specific circumstances, with a state defying the courts and forcing the hand of a President. For instance, remember the federal appeals court decision that ordered Judge Roy Moore to remove the Ten Commandments from the Alabama supreme court building? I had hoped that the Governor of Alabama could have defied that order and forced then president Bush to have to decide whether to send in federal marshals to remove it or not do it.

          • Scope

            and if challenged, the SC can either uphold or nullify those laws. Congress has the power to write new laws if it deems a SC decision to be incorrect. Didn’t Obama try to get the Congress to write new laws with regard to their decision with campaign finance laws? Congress did not do that. It stands to this day. If the SC decides that the individual mandate is not constitutional, would it not take new Congressional legislation to overturn that SC decision?

            This statement bothers me very much-

            “And I have no problem, depending on the specific circumstances, with a state defying the courts and forcing the hand of a President”

            Why do you get to decide what specific circumstances specify when a state should defy a court decision? That’s your own personal opinion. I can’t believe that I, as a common ordinary citizen, can be fighting your legal opinions, because that is how you view the law, through your own prism of how the law should work. Who gets to decide the “specific circumstances” when a law should be ignored? You, the citizens that are in favor of that law, the citizens that are not in favor of that law? As I’ve said there are always people on both sides of the issue, always. So who will you decide with? As a lawyer, shouldn’t you be on the side of what is constitutional rather than what is most popular with the people, as awful as the decision may be.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            the President. So all I mean by that statement is that even as elected government could go so far in restricting Liberty that We the People via states or amorphously, might justly determine that revolution is the just option. I think for such a a decision to be just would require VERY extraordinary circumstances, so that circumstances would have to be VERY, VERY awful for me to favor Nullification, much less taking up arms. But in the final analysis, as wonderful as is the Constitution, even it is judged by a higher moral law. But as a constitution loving lawyer, what I see is that the circumstances that would justify either option would be the ongoing UNCONSTITUTIONAL actions of the Congress, President and/or Sup Ct, so that We the People would actually be upholding that document.

            If the Sup Ct rules the individual mandate, as presently constructed, unconstitutional, then the only way it could be implemented, as constructed would require a constitutional amendment, BUT, if a Congress would so inclined, they could easily pass a new law that achieved the same result in most parameters by enacting a tax on income, given the precedents that upheld Soc Sec and medicare, which decision was clearly unconstitutional given the original meaning of the general welfare and taxing clauses.

            Finally, the great distinction that makes the American revolution historic was the replacement of the divine right of kings with self government as implemented with a contract we call the constitution that defines the limited powers of a federal government. When 5 lawyers called justices re-define that document by fiat, the usurp self-government.

          • westcoastpatriette

            __

          • runner12

            Very well put, GC

          • JSobieski

            Impeachment is a political question, not a legal one.

            President Johnson was almost impeached for firing a cabinet officer—something he had every right to do.

            This is not to say that people should recklessly engage in such activities, but we should acknowledge that in a self-governed nation the Constitution is ultimately intended to be a procedural brake to the whims of a super-majority over an extended period of time.

            The people of the US could pass a Constitutional Amendment repealing the entire Bill of Rights if we so desired. No piece of paper can ultimately protect us from ourselves. The Constitution is a tool to help us, but ultimately it can’t do the job for us.

            Government of men by men was, is, and always will be flawed.

            Self government will always be messy.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            smile

          • Scope

            instead of commenting on the fringes. Do you think that courts should be eliminated if they are seen to have ruled wrongly? Do you believe that judges should be able to be subpoened by the Congress to answer for their rulings? Do you think that if the SC rulings should be ignored, if the president or Congress think they ruled in error? Please be specific with your answers.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            judges, so yes, Congress has the right and power to subpoena them.. As I stated below, Bork favors ending lifetime tenure and granting Congress the power to overturn SCOTUS decisions. He thinks this would be rare because the courts would get the message that the legitimacy of their decisions is at stake.

            Whether a ruling should be ignored would depend on the substance and gravity of a decision. If a decision impinges on the inherent power of the executive to wage war or on the power of Congress to levy taxes, for example, then yes, I think there are rare times that they should be defied. And let the people decide. That was Jefferson, Jackson and Lincoln’s position as well.

            Judicial restraint, ie character, is crucial to our system.

          • conservativecurmudgeon

            And well argued.

            I don’t think it’s good to go up against Bork in matters constitutional. Or, the Gamecock, for that matter…

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            that have already been confirmed after all. The decision to impeach should be made on the substance of their written opinions.

          • conservativecurmudgeon

            as I’ve emphatically stated upthread, and for the same reasons you’ve enumerated. It’s rather like asking a VP to re-take an oath of office upon the death of a President — they’ve already done so, and making them take the oath a second time is rather gilding the lily.

            We put judges in to positions whose decisions cannot be constantly second-guessed as a matter of course. BUT, if Judges insist on legislating, then two things must happen: Either they must be elected, or their terms must be limited.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            of SCOTUS decisions by majority vote in both houses. See his Slouching and The Tempting books.

          • Menlo

            The courts are no better at following the Constitution. To make it worse, they will violate it under the guise of upholding it. Some elected officials will go so far as to acknowledge they don’t care if they are violating the Constitution. At least they are subject to the relatively frequent check of the voters.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            in favor of 5 lawyer oligarchs. Bork argues that it would be healthy for Presidents to occasionally pull an Andrew Jackson and defy a court ruling that usurps executive power. more later

          • http://amymillervrwc.wordpress.com/ Amy Miller

            n/t

        • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

          of America: The Political Seduction of the Law…great book

    • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

      moment!

    • http://amymillervrwc.wordpress.com/ Amy Miller

      …where did you attend?

      Drastic reform should come from who we appoint, and who we help get elected…not from the Executive.

      • Menlo

        Look at who is teaching it. Until she was cut out of the budget, UT Austin had Sarah Weddington teach “law!” That’s like having Mengele teach medical ethics. Of course, look at the current President and VP. The entire curriculum and study and what is defined and accepted as “law” makes it impossible.

        I’ve never made the case the executive should have greater power. Congress plays a role too.

        • http://amymillervrwc.wordpress.com/ Amy Miller

          …but it’s unfair to generalize like that. I have been blessed with absolutely fantastic professors who use their jobs to fight what you’re railing against.

          • Menlo

            Have any of them ever attempted to make the case that the term “case law” is an oxymoron?

          • http://amymillervrwc.wordpress.com/ Amy Miller

            but yes, if I understand what you’re getting at.

      • rbdwiggins

        to the federal judiciary can only be accomplished through a collaborative effort between the Congress and the Executive, and that can only happen with the good will and approval of an informed electorate.

        That’s the condensed version of Newt’s position.

        TalkingPoints tend to morph into the absurd, devoid from reality, as evidenced by the hyperbole expounded in many of the comments above.

        For instance, this is the last two paragraphs of the FoxNews report. They have been surreptitiously omitted from any subsequent reporting.

        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.

        The conversation has begun…

        • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

          when they restricted the jurisdiction of enemy combatant appeals to the Dc Circuit. That was one where Bush should have pulled an Andrew Jackson.

          • rbdwiggins

            President Bush, would have had a powerful ally on the Court as well…

            ?One cannot help but think, after surveying the modest practical results of the majority?s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants? All that today?s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.? Chief Justice John Roberts ? Dissenting, Boumediene v. Bush, 553 U.S. 723 (2008)

  • retire05

    how the administrative branch of our government can affect the court, including the SCOTUS, to cause the court to bend to its will.

    The Constitution, unfortunately, does not stipulate the number of SCOTUS judges. It simply states that the President may nominate the judges. It does not even state that it shall be a life time appointment, as we now have.

    Due to the lack of stipulation for the number of SCOTUS judges, it does give Congress the ability to over reach and load the court. FDR threatened to enact law that would add one SCOTUS justice for everyone of them who had reached the age of 70. There was no doubt that FDR, with a strong filibuster proof Democrat majority in the Congress, could get such a bill passed. FDR wanted Social Security found Constitutional, and when the court balked in two cases, FDR threatened the court and the court caved.

    So yes, Newt’s proposal is dangerous as time has shown us that the pendulum swings with each generation. A court, now considered split with the addition of Sotomayer and Kagan, has been far left as well as far right, in the past. If we were to have a solid liberal majority in the Congress, a liberal president would be able to use the court to his advantage, just as FDR threatened to do.

    The next president will be in a position to nominate probably two SCOTUS justices, perhaps three. Scalia, Ginsburg and Kennedy are reaching advanced years. That is why this election is so important and a point often missed by those who are selecting their choice of candidate. I want a POTUS who will appoint strick Constitutionalists, not those who use foreign law or a penumbra to determ U.S. law. And not one that will threaten an equal branch of the government.

    • http://amymillervrwc.wordpress.com/ Amy Miller

      I haven’t heard enough about this issue, and I think this could come back to bite us in the butt.

  • Tbone

    you can take an idiot, crooked attorney, put a robe on him and it supposedly makes him wise and honest.

    BTW, Amy, “I?m almost a lawyer; when I finally get to where I?m going, it will be my job to read the law, interpret it”

    Nope, it will be your job to bill enough hours to warrant giving you a desk and a phone.

    • conservativecurmudgeon

      n/t

    • http://amymillervrwc.wordpress.com/ Amy Miller

      Good to see you stopped by, Tbone

  • westcoastpatriette

    And I agree with you that we have the greatest judicial system in the world and it should be an honorable profession. But like all professions, the bad ones tend to spoil the apple cart and there are many, many corrupt judges and lawyers in America.

    And while I do not agree with all of Newt’s ideas, bringing to light that Americans are tired of feeling like they are being ruled by a judicial oligarchy is a worthy discussion. No one should be allowed to operate without oversight of some kind and, while I don’t agree with Newt’s idea for the President to be able to subpoena SC justices, I do think Congress needs to wake up and take more action when the courts are behaving blatantly unconstitutionally.

    Our country is going through serious self-examination right now and the legal profession is not immune from contributing to some of our most egregious problems. While no one likes feeling like they are getting their toes stepped on, sometimes drastic measures need to be taken to right terrible wrongs. So, in the end, this self-examination will be good for the country and more accountability by all of us is a good thing.

    Sometimes I think attorneys think they are the only ones qualified to interpret the Constitution and that is not the case. Every citizen should now what it says and fight to make sure it is being followed by any one who works in government. And we don’t have to wait for the courts to tell us what is says.

    • http://amymillervrwc.wordpress.com/ Amy Miller

      …and yes, also from their authority regarding the creation, etc. of courts.

      I’m not saying either the legal profession or the courts are without their problems, but when people wildly applaud over putting the power of final interpretation on a particular case in the hands of Congress, my stomach turns. That’s not their job! Their job is to counter the judiciary if they’re seeing things happen that shouldn’t be happening.

      I don’t think attorneys are the only people qualified to interpret the Constitution. I think people who understand the Constitution, understand constitutional law, and are willing to admit a constitutionally-correct result over their own sense of right are the only people who are qualified to interpret the constitution.

      • westcoastpatriette

        necessarily agreed with Newt’s proposals but because they are tired of feeling bullied by court decisions that violate our rights and/or side with the feds when making rulings that seem to ignore the plain meaning of the Constitution.

        • http://amymillervrwc.wordpress.com/ Amy Miller

          …and I was still horrified by what he said.

          My comment stands.

          • westcoastpatriette

            You are misquoting what Newt said. He’s talking about blatant violations of the Constitution–not simply disliking a ruling. There is a difference and you don’t want to give up the power of thinking you should have “final interpretation” of the Constitution–no questions asked. Ain’t gonna happen–with good reason.

          • http://amymillervrwc.wordpress.com/ Amy Miller

            Don’t turn this into a “the people vs. the elitists” argument.

            I’m talking about final interpretation of the law as it applies to a particular case, not the Constitution as a whole. Legislators have to interpret the constitution when they make the laws, judges have to interpret the constitution when they rule on cases, and the executive has to interpret the constitution when it enforces laws. Even if we are talking about blatant violations of the constitution, checks and balances provides a way for us to deal with that!

            Also, impugn my integrity again, patriette. I like watching people beclown themselves.

          • westcoastpatriette

            when they are questioned or disagreed with. Speaking of beclowning…

          • http://amymillervrwc.wordpress.com/ Amy Miller

            I’m making this face: O.o

            There’s a difference, see?

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            especially given lifetime tenure, they are essentially immune from any check and balance save super majorities ratifying constitutional amendments. I would say that Newt, like Jefferson, Jackson and Lincoln and Bork would restrict defiance to very limited circumstances. It would be horrific if a president regularly defied court rulings, but isn’t it also horrific when the court re-writes the Constitution to eliminate the right to Life etc? I think so.

          • retire05

            Surely you are not trying to use Jackson and Lincoln as Constitutional purists, are you? Jackson was a criminal (Trail of Tears and theft of Indian lands in violations of treaties) and Lincoln violate the rights of habeas corpus. There is even some question as to whether Jefferson violated the Constitution with the Louisiana purchase.

            Bork has times where he also wanders off the farm. His stance on the 2nd Amendment is not exactly in keeping with original intent. And the “right to life” should have not been a federal issue but a 10th Amendment issue.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            Christ.

          • texashistorian

            concerning the Trail of Tears. Maybe his invasion of Spanish Florida during the first Seminole War could count, but the Trail of Tears? Treaties were signed. The controversy was that some groups of natives claimed the treaties were not lawful because those that signed them did not speak for the “nation.” Jackson did not violate the law. At worst he violated Marshall’s interpretation of the law, but even then, he was following the law as passed by Congress and signed by himself. Marshall’s ruling covered the State of Georgia law specifically, and not the Indian Removal Act directly.

          • retire05

            It was his lobbying for the Indian Removal Act that allowed him to removed Native Americans from their lands in Georgia, Tennessee and North Carolina. The law would have never been passed had Jackson not lobbied for it so of course he signed it. He wanted the Indians out of the states, especially Georgia.

            The treaty you speak of was the Treaty of New Echota, signed NOT by John Ross, the legal chief of the Cherokee Nation, but by John Ridge who assumed the authority not given to him by tribal elders. Ridge was under the assumption that if the Cherokee removed to land that no one wanted (Oklahoma) than the federal government would finally allow the Cherokee to live in peace. He was wrong.

            15,000 Cherokee were forcibly removed from their lands at the point of a Federal soldier’s gun. Of those 15,000, over 4,000 died. Some starved to death, others froze to death. Rounding up thosands of people, forcing them to march without adequate provisions (like food, blankets, facilities to keep them from the elements) is nothing more than genocide.

            Two men understood that Congress was wrong in passing the Indian Removal Act and fought against it: David Crockett and Abraham Lincoln.

            I will always consider Andrew Jackson a criminal and his actions toward Native Americans no better than Hitler’s crimes against the Jews.

          • retire05

            It was his lobbying for the Indian Removal Act that allowed him to removed Native Americans from their lands in Georgia, Tennessee and North Carolina. The law would have never been passed had Jackson not lobbied for it so of course he signed it. He wanted the Indians out of the states, especially Georgia.

            The treaty you speak of was the Treaty of New Echota, signed NOT by John Ross, the legal chief of the Cherokee Nation, but by John Ridge who assumed the authority not given to him by tribal elders. Ridge was under the assumption that if the Cherokee removed to land that no one wanted (Oklahoma) than the federal government would finally allow the Cherokee to live in peace. He was wrong.

            15,000 Cherokee were forcibly removed from their lands at the point of a Federal soldier’s gun. Of those 15,000, over 4,000 died. Some starved to death, others froze to death. Rounding up thosands of people, forcing them to march without adequate provisions (like food, blankets, facilities to keep them from the elements) is nothing more than genocide.

            Two men understood that Congress was wrong in passing the Indian Removal Act and fought against it: David Crockett and Abraham Lincoln.

            I will always consider Andrew Jackson a criminal and his actions toward Native Americans no better than Hitler’s crimes against the Jews.

          • texashistorian

            and other similar treaties was one that plagued many treaties with native americans over the 19th century, and that was the question of authority, as none of the Amerindian polities recognized a single designated spokesman.

            I agree that the Indian Removal Act and what followed was reprehensible, but we can agree to disagree whether it was criminal. Morally, yes, legally, I would argue no. But you and I are on different sides of what historians and others have been debating about since it happened. Sam Houston, if I recall, didn’t care for the Act either.

            Either way, it doesn’t invalidate Jackson’s view about the court and its role as a COEQUAL branch of government, and one which ought to, at the end of the day, be no higher than, and subject to restraint of, the will of the people embodied in the Congress and the Executive.

          • retire05

            But Lincoln and Crockett had a vote. Crockett parted company with Jackson over the treatment of especially the Cherokee. By the time the Indian Removal Act was passed, Houston had already relocated to Texas.

            Jackson did not agree with the ruling that came from the second case, Worchester vs. Georgia saying “the decision fell still born” as he knew the court could not enforce its ruling (quite different from today).

            John Ross was the accepted head, and spokesman, for the Cherokee according to Cherokee law. John Ridge was not, but had managed to convince a small band of Cherokee to go along with his agreement to the removal of the Cherokee from their lands. He paid for that with his life as the Cherokee, themselves, later killed him.

            You can argue that Jackson had legal authority to do what he did, or that Congress did not violate Constitutional law in the enactment of the IRA, but there is no argument that what ensued was simply reprehensible, it was in fact genocide, a genocide that has never been fully acknowledged. And you cannot argue that Andrew Jackson was as cruel a man to ever occupy the Oval Office.

          • http://www.hakubi.us/ Neil Stevens

            Cool Story Bro

          • retire05

            but this is an issue near and dear to my heart.

            I have been on some rezs that would make any Chicago ghetto look like Trump Tower. People, who are disheartened because they can’t even own the land they live on (rez land is federally owned in most cases), so the owners can’t decide what they want to do with their property. Rape, drugs, gangs, are becoming the norm on the rez and no one wants to talk about it.

            We, as a nation, have spent billions of $$ trying to make up to certain races for the wrongs committed against them a century and half ago. Yet, the reservation remains the disgrace of this nation. Children are often expected to travel 90 miles one way to a public school. By the time they reach high school, they just drop out sealing their future of living hand to mouth on what ever Uncle Sam gives them. Drugs, alcohol and crime shortly follow.

            It was the goal of our government to remove the Native American from their home lands, and we did by sending them to areas that was believed, at the time, wanted by no one. We made it illegal for them to participate in their own rituals (Ghost dancing), sent them to schools where we made them cut their hair, wear white man clothing, and sterlized them so they could not reproduce and their numbers would dwindle.

            Now, I am not going to apologize for those Native Americans who have a chance and don’t take it. But if your ethnic group was treated in such a manner for generations that you were left with nothing, no pride, no honor, no culture, I think we would hear loud cries against that. Not so with the Native American. For generations we, as a nation, have destroyed the Native American, and it seems few care that we continue to do so.

          • lineholder

            There’s no love lost between myself and retire05, and pretty much so everyone knows that. But what he/she has stated pertaining to Native American history and the present environment is correct. It’s an ugly reality. It truly is.

          • http://www.hakubi.us/ Neil Stevens

            Comparing Old Hickory’s actions with the systemic, industrialized mass murder of Hitler’s is, frankly, a sign of historical ignorance.

            Sounds like someone who’s a product of union schools and never really ventured to learn beyond what the lefty party line was.

          • lineholder

            That analogy was totally unnecessary. But pertaining to basic history and current status, retire05 is right.

            That’s my heritage, Neil. My grandfather was Cherokee. So I do have some shades of wanting to take it more personally than other people might. I don’t want to go overboard with it, though, because that’s not necessary either.

            They deserve better. That’s all.

          • retire05

            Does the number have to reach 6 million as in the case of Hitler and the Jews?

            Or do you think that marching 15,000 Cherokee, where over 25% of them were allowed to die from stavation and the cold (many froze to death) when they were being marched by Federal troops, not genocide? Is the CIC not responsible for the orders given to the military? Can we blame Andrew Jackson for not assuring that those who were being moved from Georgia to Oklahoma were given the provisions to make sure they arrived in Oklahoma alive? Read some of the accounts of the soldiers who were required to move the Indians. Even they decried the deplorable treatment of the those defeated Native Americans.

            How many Native Americans were here when the white man landed on our northern shore and how many were left by 1860? I have read estimates that there were 6 million native Americans in the U.S. when the pilgrims landed.

            When the orders you give eliminate over 25% of a people, that is genocide.

          • http://www.hakubi.us/ Neil Stevens

            Hint: “marching” isn’t “slaughtering.”

            I know your AFT or whichever union teacher in high school told you the Trail of Tears was one of the absolute Worst. Things. Ever., but seriously, get a grip.

          • retire05

            Where did I use the word “slaughter?”

            Was the Trail of Tears the worst? Which one?

            “Future generations will read and condemn the act and I do hope prosperity will remember that private soldiers like myself, and like the four Cherokees, who were forced by General Scott to shoot an Indian Chief and his children, had to execute the orders of our superiors.

            Private John G. Bennett (soldier under Gen. Scott during the Cherokee removal)

            So, want to compare the number of Native Americans Jackson, and his predecessor, allowed to die in the dead of winter due to lack of provisions to the number of blacks who were lynched in the South which we are never allowed to forget?

            FYI, I didn’t go to public schools so I didn’t have union teachers. Just because you subscribe to revisionist history doesn’t mean all of us do. My education comes from the tribe itself. If you have any dispute with the history, take it up with the historians in Tehlequah.

          • http://www.hakubi.us/ Neil Stevens

            Whatever word you want to use, you’re suggesting a deliberate attempt at killing an entire culture.

            So you’re being silly no matter what word.

          • Tbone

            I have a dog in this fight. I would not characterize Jackson’s actions as genocide. I would characterize his actions as those of a mass murderer and I hope he is burning in Hell.

            Andrew Jackson should be reviled by all decent people and his administration should be considered the low point of our United history.

          • retire05

            you expressed my feelings, EXACTLY.

          • retire05

            you will be wiser for it.

            Learn about Bear River, Sand Creek, Marias, and Wounded Knee. Learn about the Buffalo soldiers who were stationed at Fort Clark and Fort Martin Scott, Texas and what their purpose at those forts were.

            History is always written by the victors, never by the defeated, but at least now we have the ability to learn that the history of the American Indian, and how they were treated by whites, is not a John Wayne movie.

          • http://www.hakubi.us/ Neil Stevens

            Yes, let’s pretend the indians were the noble savages, never a danger, never disrespecting property rights, never wronging or hu rting anyone.

            Death to racist, imperialist American scum. Occupy Jackson!

          • lineholder

            Neil, if you want to view American history pertaining to Native Americans with scorn addressed completely and totally towards only Native Americans, that’s up to you, but it doesn’t even come close to covering the injustice that was done to a society of people who lived here long before Europeans ever arrived on these shores.

            Given that the Declaration of Independence and the Constitution of the United States were established prior to the time the entire scenario unfolded re: Jackson, Native Americans should have been considered as much Americans as the colonists were. They weren’t, Neil. Our entire society, including Jackson, was wrong on that point. Totally wrong.

          • http://www.unifiedpatriots.com/ pilgrim

            http://www.crystalinks.com/trailoftears.html

            Both retire05 and Neil are wrong about Andrew Jackson. The President deserving the most disapproval is Martin Van Buren.

          • lineholder

            Regardless of which President of the US may or may not deserve blame, it was long after this nation had been declared a nation of free men. Even though there was a separation of powers between the American Indians and the government established by the colonists, there was an agreement in place between them…of free men, pilgrim.

            A former President of this nation did not honor that agreement, and it did grievous harm to Native Americans. They still live under the shadow of it to this day!!!

            Addressing their history and what they went through with scorn just doesn’t sit well with me.

          • lineholder

            Thanks again, pilgrim. There were facts located at the site that I had never known, particularly in regards to the petitions by many Americans to prevent removal of the Cherokee from their land.

          • retire05

            I was not trying to start a peeing contest. I was trying to give you some information you might find interesting.

            Yes, some American Indians were noble. And not all were “savages” (although I would like you to define “savage”). The Cherokee, in particular, had courts, schools, were merchants and farmers, some were very wealthy by 19th century standards. Most were literate. Yet, when gold was discovered in Georgia, all bets were off for the Cherokee.

            How did the Indian disrespect property rights when the land that was being settled on was theirs to begin with? Tell me, if I moved into your home, and then decided that you could not live there anymore and I was taking over, would you fight me?

            The Sand Creek massacre saw the U.S. army ride into a quite village, filled with most old men, women and children and when the Army left, 240 Indians were dead. Can you name a time when Indians killed a town filled with whites where the body count was 240 when the Indians were finished?

            You obviously don’t want to learn any history. So I will leave you to others.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            If Jackson, by stating he would not enforce a SCOTUS decision overturning the Removal Act passed by Congress, is somehow “a criminal”, does that render Congress and the State of Georgia all criminals? I don’t think so. Especially when Jackson, was, at the time, about the business of threatening his home state of Sc with civil war should they nullify federal tariff laws and/or secede.

            I would say that many injustices were visited upon the Cherokee before, during and after Jackson’s presidency, many of which occurred during Martin Van Buren’s carrying out of Congress’e removal act, but most of the Cherokee considered themselves a separate nation, and not citizens of the US. As a nation, they fought a war against us for shared land and lost.

            But I do appreciate retire’s moral revulsion at many acts carried out by US citizens and governments against Indians and that the gold rush in Georgia did play a role in many.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            its opposite because there was concern on Jackson’s part that left to their own devices, Georgia would have slaughtered them if they were not removed and given the nullification/secession problem in SC that Jackson was raising an army to deal with, i it would not have been doable to raise an army to protect Indians in Georgia.

          • http://impudent.edublogs.org/ kyle8

            to his detractors, but I am not buying it. He deliberately went against the Supreme Court. He arraigned the massive theft of land and the trail of tears.

            What happened to the five civilized tribes was not only a massive travesty to them, but it hurt the nation for nearly a century afterward because as news spread among the Indian nations it made them much much less likely to try and assimilate, or to trust the white government.

            The founder of the Democrat party was just like his creation, Bellicose, racist, populist, and lawless.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            I think it was probably a mistake to even maintain the fiction of Indian tribes as nations. They should have been treated like defeated Confederates!

          • retire05

            own tail because was trying to deal with S.C. How is that honorable? Bottom line? It was not. And he managed to have enough soldiers to remove the Creek, Seminole and Cherokee from their lands, but not to protect them from Georgia?

            Those Cherokee had basically assimilated into European culture with being literate, running businesses, having courts and schools. They intermarried with the whites. You can hardly say that John Ross was “illiterate”, as he was a brilliant man.

            Yes, the Cherokee were considerd sovereign. But the fact remains, the whites wanted the Cherokee land and Jackson caved. And because of his inaction (an action in and of itself) thousands died on the trek to Oklahoma.

            As to the Cherokee considering themselves as citizens, the U.S. government did not consider them citizens. So why should they?

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            In fact, the best argument ever made as to why secession should have been understood as illegal before the Civil War was Jackson’s citation of how We the People, and not the states, combined to “form a more perfect union”.

            You have a great moral case against what We the People did thru our Reps and Presidents, but this phrase about “their land” when referring to a defeated nation is problematic for me. They lost wars. No one owns land unless they are strong enough to keep it.

            And yes, thanks for the concession on citizenship. That bolsters my case!

            God bless

          • Tbone

            That and your statement are equivalent as offsets against the blood on his soul, may he be rotting in Hell.

          • heraklios

            He was your typical Scots-Irish fighter who hated banks and privilege and fought for the little guy. He represents our part of the Republican Party against the east coast/Wall Street/Bain Capital faction. In a perfect work, we could combine JAcksonian Republicans with working class and socially conservative Democrats to form a party that couldn’t be beat.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            His defeat of the Brits at Nawlins, his election as refutation of aristocratic elites and his opposition to nullification helped make America the Shining City.

          • Menlo

            Not that it has not tried, but for Congress to decide individual cases would be both unrealistic and awkward.

            However, a major part of my issue is that I don’t think a ruling on the Constitutionality of a legislative statute in general is a valid “case.” A prior court ruling should not be regarded as “law” to extend beyond a particular, individual act of enforcement against a particular entity.

          • retire05

            a bit rough on Amy? I would have loved to have been a lawyer. You see, a lawyer has the ability to help people whose Constitutional rights have been denied, for what ever reason. And not all lawyers are bottom feeders.

            Do you add Mark Levin, and Jay Sekalow (sp?) who, through their legal foundations like LandMark, fight for conservative values in that list of people who “don’t want to give up the power of thinking they should have “final interpretation” of the Constition?

            The greater problem is law schools. Law schools, like journalism schools, usually have professors who are anything but conservative. Take Robert Jensen, journalism professer at the University of Texas, who is a confirmed Marxist. If you want to end the practice of turning out lawyers who think the ACLU is the cat’s meow, you first need to start at the university level. Are you even aware that many universities do not require a course in Constitutional law as a requirement for graduation from law school? And if they do, how many of those professors are like Lawrence Tribe who seems to have his own take on Constitutional law?

            Now, on to what Newt said: Newt seems to think that the office of the president, which is a CO-EQUAL branch of government, has the right to call judges to account for their rulings. Not so. If a judge, or the SCOTUS, makes a ruling that the Congress deems to be unconstitutional, the Congress can enact legislation that nullifies that ruling. That is the true system of checks and balances.

            Newt Gingrich seems to think he is an “idea” guy, but the problem is that so many of his “ideas”, like sitting on a couch with Nancy Pelosi pandering global warning, are bad. When Newt is right, he is darn right, but when he is just throwing ideas out into the air, like it just dawned on him, he can get really out in left field.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            seduction of the law. Character matters in Presidents and judges.

          • westcoastpatriette

            and said as much upthread–I don’t think the president has Constitutional authority to subpoena judges. And I appreciate our judicial system as being the finest in the world. (And I love Jay Sekulow and the work that the ACLJ does.)

            I am mainly having fun ruffling Ann’s feathers and I think she needs to read what Mike gamecock DeVine has written on this thread as I really don’t think she fully understands yet how the Constitution was created to work. And I think it is an elitist mindset that she has mostly due to ignorance coupled with the image she has in her mind of the superiority of lawyers in the grand scheme of our system of govermance. The unltimate final arbiters of the Constitution are the people not the judges.

          • westcoastpatriette

            “ruffling Amy’s feathers.”

          • http://amymillervrwc.wordpress.com/ Amy Miller

            2. Me disagreeing with you doesn’t make me an elitist–but I’m glad to see that you feel insecure enough to use the word against me.

            3. I’ll take the superiority of lawyers over the superiority of elected hacks any day.

          • westcoastpatriette

            Never.

          • lineholder

            This is a REALLY great thread and I’m learning a lot from it.

            Then I read this statement…and went back through and read the original post again, with the thought in mind what the writer had stated at this point. It definitely could put what was originally written in a different context, depending on what your definition is of “political hacks”.

            I’m just a commoner. All I know is that we have three separate branches of our government, that our Constitution was designed in such a way to prevent any one branch from gaining an excess of power, and that over the last few decades, we’ve seen a lot of judicial decisions made more of the basis of the political leanings of the person making the ruling rather than on a purely legal context.

            I’m on the Conservative side of the spectrum., so obviously having all the left-leaning rulings that have come from the court during recent years bothers me. I don’t know what other options there might be to enhance the system of checks and balances that are needed. What kinds of ideas would you consider on this matter?

          • http://amymillervrwc.wordpress.com/ Amy Miller

            those politicians who would use the implementation of Newt’s suggestions to gain political favors instead of actually acting as an extra check agains the judiciary. .

            Contrary to what has become popular belief, I’m not an elitist. I love what I do, but some of the most wise, most well-read and insightful people I know aren’t in academia with me :)

          • lineholder

            of the process into the context of this. That displays an understanding of human nature in general and a fair amount of prudence to do so with any situation of this sort, so I can appreciate that.

            But what would you suggest, Amy? Having members of the judiciary at any level attempt to incorporate political beliefs and political goals into there rulings is a very real problem this country is facing. The impact that it has been having on our society as a whole is staggering.

            How do we enhance the system of checks and balances we do have to prevent members of the judiciary from going over-board with this?

          • http://amymillervrwc.wordpress.com/ Amy Miller

            like what ColdWarrior and others are suggesting we do with PC’s and whatnot. Start with those local, electable positions–actually pay attention to judicial elections and judicial appointments. Holdings aren’t the only things that matter–pay attention to methodology, too. You might end up with a few decisions that run against the conservative line, but they might be perfectly correct

            I don’t trust Congress to be any less political or biased than the judiciary.

          • http://www.theprecinctproject.wordpress.com ColdWarrior

            Bingo.

            The first three words of the Preamble of the Constitution are “We the People” not by accident; the Framers deliberately wanted to remind us that we were establishing a Republic “if you can keep it,” in Franklin’s famous comments as he left the Convention.

            Can anyone seriously disagree with the proposition that the percentage of Republican Party precinct committeeman slots filled is a barometer of “We the People’s” resolve to establish control over our Congress? That it’s a direct measure of “We the People’s” resolve in making sure that we elect decent people to the Congress?

            I have asked in the past for Redstaters to self-identify themselves if they are actually members of the Republican Party. Not whether they are registered to vote as Republicans, but whether they are actually MEMBERS of the Party. And I’ll be doing that again at the end of the year.

            In the end, under our Constitution, “We the People” hold the reigns of power. Sadly, we have not been doing our job. And, as power abhors a vacuum, the leftists have occupied that which conservatives are too busy to not pay attention to and be involved in.

            We conservatives easily have the numbers to take over the Republican Party. Will we? Will we carry out The Neighborhood Precinct Committeeman Strategy? I hope so. What’s puzzling is why we don’t, and why some here at Redstate won’t help make it happen.

            Last year, in response to a Gamecock Diary, I posted the following relating to Lincoln’s view of the Supreme Court and the federal judiciary, with which I agree:

            Regarding the power of the Supreme Court:

            I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal. Nor is there, in this view, any assault upon the court, or the judges. It is a duty, from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs, if others seek to turn their decisions to political purposes.

            And about the power of the people and the power of the federal government and its ?Chief Magistrate?:

            The Chief Magistrate derives all his authority from the people, and they have conferred none upon him to fix terms for the separation of the states. The people themselves can do this also if they choose; but the executive, as such, has nothing to do with it. His duty is to administer the present government, as it came to his hands, and to transmit it, unimpaired by him, to his successor.

            Why should there not be a patient confidence in the ultimate justice of the people? Is there any better, or equal hope, in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of nations, with his eternal truth and justice, be on your side of the North, or on yours of the South, that truth, and that justice, will surely prevail, by the judgment of this great tribunal, the American people.

            By the frame of the government under which we live, this same people have wisely given their public servants but little power for mischief; and have, with equal wisdom, provided for the return of that little to their own hands at very short intervals.

            While the people retain their virtue, and vigilance, no administration, by any extreme of wickedness or folly, can very seriously injure the government, in the short space of four years.

            As variations in transcriptions of the Address exist, here are three links, including to Lincoln?s actual document at the Library of Congress, in case you are interested:

            millercenter.org/scripps/archive/speeches/detail/3507

            www.bartleby.com/124/pres31.html

            www.loc.gov/exhibits/treasures/trt039.html

            Note Lincoln?s premise: ?While the people retain their virtue, and vigilance . . . .?

            Have ?we the people? retained our virtue and vigilance? If not, can we, will we, regain them?

            For Liberty,
            ColdWarrior, PC (that?s ?precinct committeeman,? not ?political child!?)
            Conservatives, UNITE! CHANGE the Republican Party and save the world by UNITING INSIDE the Party as precinct committeemen. NOW! (83 days until Nov. 2 ? what are YOU DOING to help get out the vote in your precinct?)

            I am a trial lawyer. When I’m in trial, or preparing for trial, I direct as many of my waking hours, if possible, to my client’s cause. That means I have to prioritize my time. The client’s cause comes first, then family, then friends, then politics. It’s just the way it is.

            When I was on active duty in the military, conceiving, planning and carrying out secret and dangerous missions for the government, and finding, recruiting, training and then leading the people who accomplished these missions, I knew, as did my cohorts, that our time and efforts needed to be prioritized in a way that helped accomplish the mission.

            When I was a cadet at the South Hudson Institute of Technology, those concepts were drilled into my feeble mind through the Fourth Class System, etc.

            Our time is short, fellow conservatives. We have a Party that we need to reclaim. It’s there for the taking. If we focus on that, we can remake the Republican Party into a strong, strong conservative fighting force. That should be our top priority, no?

            It only takes a couple of hours a month to attend one’s local Republican Party committee meeting. Is that on your priority list? Is it at the top of the list? It’s at the top of mine.

            Go to the links below and spend a few minutes learning about The Neighborhood Precinct Committeeman Strategy. Then, please, find your local Republican Party committee and get into the real ball game of politics. Then, please, at least attend one of your committee’s meetings.

            Keep in mind that HALF of the precinct committeeman slots are STILL vacant!!!! That means that our Republican Party is going into battle at half strength where it should be strongest: at the precinct level.

            Become one of the “We the People” the Framers set in print in the Preamble.

            Do you have a personal political strategy? I do. See the links below.

            For Liberty,

            ColdWarrior

          • http://amymillervrwc.wordpress.com/ Amy Miller

            :)

            I’m not saying we leave the corrupt judges alone. I just want to get rid of them the right way–by fixing the problem, instead of just slapping a big Congressional band aid on it.

          • lineholder

            It puts on the same side, on this much at least. Newt’s ideas may not be the most ideal, but we do need to consider putting something in place that will either slow down the process of left-leaning judicial decisions or prevent them altogether.

            BTW, I’m in wholehearted agreement with CW that the PC project is our best option!!! My ability to be directly involved are limited, strictly because of circumstances. But I’ve been telling other people who might be willing to take this one on about the precinct committeeman project, and one or two of them have actually followed up on it in my area of the nation.

            We can also help by drawing attention to judiciary positions during the next election. And that’s where people like yourself can prove to be invaluable, Amy. You know the law, and you can help us to identify what positions individuals running for judiciary positions might have and to give us a head’s up if need be.

            Maybe that could be your activist role, along with others. Just an idea and a suggestion. That’s all. We could definitely use the help.

          • lineholder

            They can and have displayed plenty evidence of corruption in their actions.

            The Constitution was set up in a way for the three branches to be a check on each other, for the purpose of sustaining the freedom and liberty of we the people. Now, they often act more in a corrupt way of colluding with each other for the sake of promoting and advancing an agenda. On that point, NONE of them can be completely trusted. None of them.

          • http://www.THATAmyMiller.com Amy Miller

            Because I weigh reasoning and results equally. Did they stick to the constitution, or did they go off on a wild policy tangent? You might have a decision that wouldn’t necessarily make a conservative happy, but it was the proper decision Constitutionally.

          • lineholder

            There’s nothing wrong with looking at both the good and bad, provided that it’s based on facts. Just present the facts, even it doesn’t necessarily conform to some specific political narrative. Provide the evidence of why you see the choice that was made as being Constitutional.

            Look at this way…it will definitely build skills as a lawyer, correct, LOL?

          • Menlo

            The notion that our judiciary would be considered “the finest” in the world makes me want to vomit. I wouldn’t go so far as to say that it’s the worst, but it doesn’t even rise to the level of “respectable,” let alone “finest.”

          • rbdwiggins

            until you got to this part:

            “Now, on to what Newt said: Newt seems to think that the office of the president, which is a CO-EQUAL branch of government, has the right to call judges to account for their rulings. Not so.”

            Not so, indeed. That is not Newt’s position.

            I’m not a Newt supporter per se, but reigning in a runaway federal judiciary ranks very high on my list of legislative priorities.

            This is the position/action in question that has caused the establishment to manufacture so much turmoil:

            Judicial Accountability Hearings

            Congress can establish procedures for relevant Congressional committees to express their displeasure with certain judicial decisions by holding hearing and requiring federal judges come before them to explain their constitutional reasoning in certain decision and to hear a proper Congressional Constitutional interpretation.

          • jakeofalltrades

            How else are they to competently investigate judges preparatory to impeachment?

      • David123

        And the Congress should “control’ the court by confirming ONLY originalist judges.

        • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

          Only appoint veteran appeals court judges that have shown their reliability over time.

  • center77

    I think the one thing I have no doubt most people should agree with is the video team for Perry or ad team are really good.

    • http://edgeinducedcohesion.wordpress.com nathanalbright

      He’s definitely got a solid marketing crew, that’s for sure.

    • snowshooze

      I hope it sells.

  • carolynr

    I believe that Perry’s idea about 18 years on the bench is enough for these people….Enough.

    My idea….I WANT THOSE JUDGES to denote what party they favor…I want a R or a D behind their name. Independent…I would suggest is nothing more than we have right now…that’s how we got Kennedy

  • texashistorian

    have often debated this- here in Texas, and in some other states, judges are elected and run on party tickets. There are some definite downsides to that, and it is easy to understand what the framers were aiming for with an appointed judiciary. At the same time, these judges are forced to publicly state their philosophies about the law, the constitution, and crime. It is useful in selecting them.

    At the end of the day, however, while amending the constitution to term limit them might be worth considering, sticking an R or D after their names as nominees to the courts won’t matter much. Why? Look at David Souter as a clear example. And then look how many of these folks we elect to office (D or R) say one thing, even compile a certain record at the state level, then act completely differently.

    • greyeagle

      I think Judges should be elected as well. We have gotten some real loons in the Federal system.

  • Scope

    I am actually laughing at some of the posters on this diary, as they seem think that Judicial Reform is a tantamount issue for the 2012 elections. If you look at the priorities of the electorate for 2012, Judicial Reform doesn’t even hit the list, at all. Gingrich has little funding, little organization, and little volunters to walk the streets, or pound the doors for him. It is necessary that he make some bombastic statements that get him in the news, because he has little else to get him face time. He has brilliantly taken everyone off message, with respect to his run, and has tried to hit the high road, with a populist note, knowing that many have problems with the “runawat judge” thingy. Other than those here that want to slah and burn the judicial system, his populist stance has earned him ire by, well, most everyone off of this comment section, and of course those that applauded him with his bombastic statements in the debate.

    I love it that Gingrich is trying to take the focus off his Freddie Mac positions, or any of his myriad other non-conservative positions, and is trying desperately to refocus the attention away from those negatives. How many here have said that Gingrich always tries to turn the argument/debate into what he wants to talk about? and it is usually to turn the argument against what he is taking heat for.

    I love seeing the headlines that Gingrich is going to send the Federal Marshalls out to round up all those rogue judges, that decided against a president Gingrich’s wishes. I’ve actually seen some headlines that claim a president Gingrich would be more of a totalitarian than a president of the Constitutional Republic. Sometimes you just can’t make this stuff up.

    • http://www.THATAmyMiller.com Amy Miller

      It’s such a huge issue to soundbite away–doing so is almost as irresponsible as the policies he supports.

  • Scope

    as the bottom feeders, until they need one.

    • http://www.THATAmyMiller.com Amy Miller

      … I can still appreciate the difference between a bottom feeder and someone who is doing a necessary job. It makes me sad; the ethical rules create so many grey areas, but that shouldn’t reflect on every single lawyer.

      • http://www.hakubi.us/ Neil Stevens

        … but I do find you all tend to be a bit pro-establishment on judical reform, as a group. :)

        • http://www.THATAmyMiller.com Amy Miller

          Stop provoking me…I’ll spam your Twitter with LOLcats and Ke$ha videos :-D

        • jakeofalltrades

          After all, SCOTUS writes the test answers AND the logical argument patterns that we have to memorize. When we are sworn in, it’s to a Supreme Court somewhere. The Bar exam is where we all get together and prove we think like SCOTUS.

          In a Constitutional Republic, the non-political branch is the one that has to decide Constitutional issues; otherwise the Constitution would be even more subject to the changing whims of the electorate than it is now. It is also subject to the political branches: the President can veto unconstitutional legislation, and Congress can do anything.

          The way to keep the Judiciary in check is to impeach judges that violate the Constitution with their rulings. And of course, Congress has some power to override the Court if it would like to propose a Constitutional Amendment.

          The Constitution was designed to allow impeachment as a purely political act – even with judges. That is why impeachment is voted on rather than tried in court.

    • JSobieski

      A lot of people like THEIR Congressman while hating Congress in general.

      Nobody dislikes lawyers like another lawyer. Most lawyers want their kids to be doctors or CEO’s of IT startup companies.

  • http://www.timothy-bladel.com/ center77

    if he does not like the choices they made on the bench.

    Here is the problem with this, in all likelihood, the left will be in power again someday, and when that happens we will see a whole lot of judges arrested. Now I’ll be honest, I hope Newt was not really serious, but if for some reason he was, then we are going to have Romney as a nominee, because it will not take long for the voters to realize how much of a folly it would be to start arresting judges we do not agree with.

    Now I feel Romney is going to beat Newt in the long run because Newt will have trouble winning Iowa, and after that he will slowly fall down further. Perry needs to do well in Iowa, and I think he will we are doing a lot of work in this state, and we are getting people to see Perry for what he is, not the stupid candidate the media wants us to think he is, but the candidate that cares more about getting things done that learning the nuances of winning the American Idol primary. Let?s hope we will get this done and really have the momentum after Iowa.

    • http://www.hakubi.us/ Neil Stevens

      This isn’t about what he “likes.”

      If you have to set up strawmen you must know in your heart he’s right.

    • http://www.hakubi.us/ Neil Stevens

      What’s this “we” stuff about, when your signature claims you’re “Independent”?

      Which is it?

      • http://www.timothy-bladel.com/ center77

        I am about policy, and Ive watched the Republicans break promises after promises. I see no reason to hold on to a party if they are going to tell me something and then do something else. I cannot picture ever voting for Democrats, but if for some reason I feel that their is a conservative Democrat that would keep his promises then why would I not even consider voting for that person, when they would advance the things I care most about.

      • http://www.timothy-bladel.com/ center77

        but I did not get there, I am a registered Republican.

  • lineholder

    Have you seen this one? What’s up with PPP?

    http://www.publicpolicypolling.com/pdf/2011/PPP_Release_IA_1218925.pdf

    • lineholder

      73% solidly committed? Not good.

      http://www.publicpolicypolling.com/main/2011/12/paul-leads-in-iowa.html

      • http://www.hakubi.us/ Neil Stevens

        1. Threadjack. Don’t do it again.

        2. It’s garbage.

  • http://www.timothy-bladel.com/ center77

    If you are a Newt Gingrich supporter, I am suggestin gyou read this next few paragraphs from Stephen Slivinski, who is senior economist at the Goldwater Institute, and is the author of the book, Buck Wild: How Republicans Broke the Bank and Became the Party of Big Government, published in 2006.

    When discussing some of the battles Newt Gingrich had with conservative budget cutters in his own party over not passing a budget that Newt was trying to get passed, he was trying to reverse the hard won cuts of the previous year, these cuts were elements of the contrsct with America in 1995.

    ?It should have come as no surprise that some of us were going to say no when they want to hire more Washington bureaucrats,? said budget hawk Mark Neumann of Wisconsin when he declared he would vote against the bill. ?When we go out and tell our people we?re going to balance the budget, we can?t start with an increase in our own budget.? With all Democrats opposed to the bill, the swing votes came from eleven GOP budget hawks. It went down to defeat by a narrow margin of three votes.

    “Gingrich was furious. A few minutes after the vote, he announced an unusual mandatory meeting of all House Republicans in the caucus room right outside the House chamber. The session was going to begin with a roll-call and the Speaker threatened to send the sergeant-at-arms to round up any absent GOP congressman. Once the meeting started, Gingrich fumed. ?The eleven geniuses who thought they knew more than the rest of the Congress are going to come up and explain their votes,? he said. It was an unusual step and one that seemed to be motivated mostly by anger. It even surprised the more senior members of Congress, none of whom had ever heard of anyone being asked to explain their vote in this way to the entire caucus. Gingrich?s goal was to humiliate, and he derisively referring to the dissenting members as ?you conservatives,? as if they were a distinctly different and unacceptable breed of Republican. He derided them for not being team players and threatened to delay a two-week recess until each of those members explained himself and until the leadership had enough votes to pass the committee bill.”

    This is the man that conservatives are pinning their hopes on as the man who will revearse the hard left turn Obama has taken the country in recent years, but he could not even be counted on to support members in his own party who were fighting to keep promises he made to the voters who put them in office.

    I htink it is time for the base to take a hard look at what they are about to do. I think at least this way, they will know what they are going to get.

  • http://pocketchangeproductions.net/ anotherindyfilmguy

    Rather that whatever will says will be taken in a damaging sound bite that causes for more damage than any larger/longer/more detailed explanation will fix.

    Sound bites grab attention – long complex defenses turn people off.

    The left knows this and will exploits it against any Republican they can, some just make it easier to be exploited in that way than others.

  • Marcus_Traianus

    It’s about time we rolled that back.

    Start with the Constitution and then tell me what basis the courts have used, or rather “invented” as a basis for much of what they do today? Your perspective starts with today and uses preceding case law as a basis for argumentation when the converse is a more reasonable standard.

    To wit, courts have usurped for themselves a constitutional role which was never envisioned. Feared perhaps, but not envisioned. That goes all the way back to decisions such as Marbury vs. Madison, concepts such as “judicial review” and roles into a huge crap pile as time marched on.

    The Constitution clearly articulates a process for amendment. That process has been repeatedly ignored by numerous liberal courts as they try to write into “law” territory that was never meant to be their purview. In that process, our courts have made themselves the preeminent branch or government and final arbiter of the Constitution- not a “co-equal” branch. They act in unconstitutional ways and wield power far beyond their constitutional mandate as a means of changing our society for the benefit of a particular minority political view. I can think of very few things more unconstitutional, anti-democratic and dangerous to a constitutional republic.

    So I am glad Newt said what we all think. The judicial branch is not above the Constitution, the peoples majority will nor preeminent above any other branch of government. It’s about time we reversed years of unmitigated power grabbing and restore constitutional checks and balance, as originally intended.

  • barleycorn

    Everything he said in the clip you provided is absolutely correct.

    If you knew one tenth as much as you, in your towering sense of entitlement because you are getting ready to graduate from law school so you’re an expert, think you do, you would realize that Gingrich wants to restore balance not disrupt it.

    You are typical of many conservatives of the modern age, you cede 80% of the playing field to the liberals and then pat yourself on the back for fighting over the last 20%.

    The judiciary is not a high tribunal whose power can never be questioned.

    What you and many non-thinkers get confused on is the idea of co-equal branches on government. They are co-equal ONLY in their specific areas of power and responsibility, and the Constitution gives the judiciary a VERY narrow area of power and responsibility that has been improperly and exponentially expanded by your precious judges over the past 80 years or so.

    As Gingrich rightly points out, various presidents have had to smack the courts down over the past couple hundred years or so.

    We have passed the point where it needs to be done again.

    • http://www.THATAmyMiller.com Amy Miller

      …you’re going to have to try harder :)

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