I have to confess at the outset that I am at a loss to explain the hyperventilation in some quarters about Newt Gingrich’s remarks in Saturday night’s debate that he would subpoena federal judges to testify before Congress. I don’t really want to get sidetracked in a discussion of whether such a move would be a good idea, politically (it would almost certainly not, as evidenced by the fact that it is never done), my only beef is with the suggestion that it literally could not be done. In other words, to some extent this is probably the sort of discussion that only a soul-sucking lawyer fascinated by the question of how many angels could dance on the head of a pin could possibly enjoy and therefore I will stick most of it below the fold. I will say, however, that folks who have never actually practiced in front of a judge generally have no idea how bad things are in the judiciary these days – and while I think Newt’s plan is probably political suicide, I don’t think some outside-the-box thinking should be completely discarded where the judiciary is concerned, because it is clear that what has been done prior to this point is just not working.

The normally outstanding Andy McCarthy, with whom I am loathe to disagree, writes at NR that the very idea that Congress has the power to subpoena judges is preposterous:

For now, though, I just want to address a bad part that is getting most of the attention — as Kate’spost from yesterday indicates. That’s the business about issuing congressional subpoenas to federal judges to coerce them into explaining themselves before lawmakers. As many commentators have suggested, this proposal would violate separation-of-powers principles. The judiciary is a peer of the political branches. It would be no more appropriate for Congress to subpoena a federal judge (or that judge’s clerks) about the reasoning of one of the judge’s rulings than it would be for Congress to subpoena the president (or his top advisors) about a controversial decision that was within the president’s constitutional authority, or for a judge or the Justice Department to issue a subpoena to a member of Congress (or the lawmaker’s staff) to question that member about the deliberations over some legislative act that arguably went beyond Congress’s enumerated powers.

With all due respect (and I mean that literally and not in the sarcastic way the phrase is usually used), this is an ipse dixitof astounding proportions. There is no authority or reasoning offered anywhere in here other than the fact that it would offend Andy McCarthy’s sensibilities about how the balance of power should operate. McCarthy is entitled to his opinion, but it seems disingenuous to suggest that this is already a settled question in the American politic. It is not.

Allow me to counter, in fact, with what seems to me to be a plausible reading of both the Constitution and actual settled precedent. Per Article 3, section 1 of the Constitution, every inferior Court in the United States (i.e., every court except the Supreme Court) exists at the whim of Congress. People like to pretend that it’s a point of some controversy as to whether Congress would have the authority to shut down the 9th Circuit if it so desired. I guess it might be a point of political controversy but in terms of Congress’s power, literally no inferior court in the country could exist. According to Article 3, Congress has the plenary authority to cause every Federal court in the country with the exception of the Supreme Court to cease to exist. Further, as declared in Article 3, with the exception of a narrow class of cases, Federal courts would have no jurisdiction to hear most cases absent express authorization from Congress. Which is why I would probably agree with McCarthy that subpoenaing members of the Supreme Court would probably be out of bounds, just like it would be out of bounds for Congress to subpoena the President. But just as Congress can subpoena all manner of Executive Branch underlings for a good raking over the coals, I think it clearly presents a different question when it comes to subpoenaing judges of inferior courts.

This is why Congress has hearings on the 9th Circuit and on the judiciary’s jurisdiction to hear cases involving detainees from time to time – they are not idle posturing or threats to the balance of power, they are fulfilling Congress’s express Constitutional authority to regulate the judiciary. If Congress were somehow stripped of this authority, that would be a true threat to the Constitutional principle of separation of powers.

As Gingrich explained earlier this year at the Palmetto Forum (and I daresay that Newt is showing a better understanding of the implications of Congressional power contained within Article 3 than most if not all his detractors):

Which brings us to Congress’ subpoena power in the first place. That’s not anywhere explicitly in the text of the constitution but there are court decisions affirming the reality that they are properly within Congress’ inherent power, as long as they are part of an investigation that serves a “valid legislative purpose.” As we have seen above, there are loads of valid legislative purposes when it comes to regulating the judiciary – at the very least every judge not currently sitting on the Supreme Court. Just as 2 + 2 inexorably equals 4, I think the above principles indicate that Congress can issue subpoenas to judges sitting on inferior courts.

Now, there are some problems with Newt’s proposal. The first and most glaring problem is that Newt is running for President, not Congress. The President cannot subpoena anyone to testify in front of Congress. Congress has to subpoena people to testify in front of Congress. Second, in the event that a judge defied a Congressional subpoena, who would enforce it? The judicial branch is generally loathe to enforce Congressional subpoenas against executive branch officials – you can guess how they would treat subpoenas issued to judges. The final one that McCarthy hits on in his piece – it seems rather pointless to subpoena judges to explain what they generally have almost always already explained at great length in their opinions - i.e., why they reached the decision they did. The key, here, though, is almost always. Many times, especially at the trial level (where, in my opinion, the greatest reform is needed) the rulings can be cursory, vague and confusing. Additionally, many of the things the judiciary does which Congress might want to ask about (assignment of cases, composition of appellate panels, etc.) would not be explained in writing anywhere. Which is to say that it would beunusual but not unheard of for Congress to have a legitimate reason to question a judge on a decision for a reason that was not related simply to a public raking over the coals.

Of course, raking judges publicly over the coals is really and truly the point of this entire proposal, as I am sure we all really know. Would it be a good idea for Congress to engage in this spectacle with sitting members of the Federal judiciary? Probably not. The judiciary has done a masterful job over the years of convincing the public that they are a robed priesthood whose rites must be clothed in secrecy in order for them to have effect. Even at the state level, when judges are elected, they seldom receive any meaningful scrutiny.

The dirty truth, which many lawyers are loathe to admit in public (for reasons that should be obvious) is that while there are many quality judges out there who take their job seriously, there are far too many who abuse their membership in what is effectively the world’s most protective and belligerent union. Too many judges – especially at the trial level, where well over 95% of everything they ever do is never reviewed by anyone – are lazy, autocratic, and incompetent. They do not read briefs that are presented to them, they do little if any of their own research (and what little is done is most certainly done by clerks), and they willfully flaunt both the law and rules of procedure, secure in the knowledge that a) you will almost certainly not appeal them and b) even if they are overturned on appeal, it is absolutely no skin off their life-tenured back.

I remember several months ago I was having an email discussion with a non-lawyer about the Arizona immigration law which is currently in front of SCOTUS. This person asked about the law, “May I ask if this law will prevent the experience I had of sitting in a [county] traffic court room, watching illegal after illegal admit to being illegal in front of the judge, but just receive a traffic fine and walk out free as can be?” My answer was, “In theory, yes. However, there is no law that has ever been invented that will prevent a judge (especially a general sessions judge) from doing whatever the heck he wants.” I defy anyone to spend some time Googling “Manuel Real” and tell me that either a) I was wrong or b) we don’t have a problem in this country that might at least be aided to some degree by the occasional public rhetorical flaying of a sitting judge.

Of course, the first person to attempt to address the problem in that manner will probably pay for it with their political life, which will only perpetuate the vicious cycle wherein the public never sees behind the curtain and the problem continues to get worse and worse. But if Newt wants to be the guy to make this particular assault on Cemetery Ridge, I am at a total loss for why conservatives would want to stop him.