Yesterday on Face the Nation, Newt
Gingrich
said judges who reach decisions he does not like should be
arrested and forcibly hauled before Congress to answer for their
misdeeds if they refuse to come on their own:

Bob Schieffer: One of things you say is if
you don’t like what a court has done, the Congress should subpoena
the judge and bring him before Congress and hold a congressional
hearing. Some people say that’s unconstitutional, but I’ll let that
go for a minute. I just want to ask you from a practical
standpoint, how would you enforce that? Would you send the Capitol
police down to arrest him?

Gingrich: If you had to, or you’d instruct the
Justice Department to send a U.S. marshal. 

This is all part of Gingrich’s scheme
to rein in “radical judges” by impeaching them, abolishing their
courts, or simply declaring acts of Congress unreviewable. At
Thursday’s Republican presidential
debate, Ron Paul called Gingrich’s proposals “a real affront to
the separation of powers.” Bush administration Attorney General
Michael Mukasey, a former federal judge, deems them “dangerous,
ridiculous, totally irresponsible, outrageous, [and] off the wall,”

saying they would “reduce the entire judicial system to a
spectacle.”

Gingrich’s plan to beat the judicial branch into submission
seems especially disproportionate compared to the provocations he
commonly cites as justification. On Face the
Nation he once again criticized U.S. District Judge Fred
Biery, who last June
ordered a Texas school district to keep prayer and references
to it out of its graduation ceremony, including speeches by
students. Another favorite Gingrich target is the U.S. Court of
Appeals for the 9th Circuit, a three-judge panel of which
ruled in 2002 that the phrase “under God” in the Pledge of
Allegiance is “an impermissible government endorsement of
religion,” especially in the public school context. Gingrich has

said that decision is “one of the major reasons that I am
running for president,” which makes it regrettable regardless of
whether you agree with the 9th Circuit’s interpretation of the
Establishment Clause.

What do these two decisions have in common, aside from
exemplifying the godlessness that Gingrich says is
transforming America into “a secular atheist country, potentially
one dominated by radical Islamists”? They were
both
overturned by the same judicial system he says is so hopelessly
corrupt that its decisions must be pre-empted or nullified by
Congress.

In an October column, I
argued that Gingrich’s assault on the judiciary would leave it
ill-equipped to uphold the Constitution against legislative
trespasses, even in cases where he himself wants the courts to
intervene. Yesterday Bob Schieffer raised the same point, asking
Gingrich whether President Obama could simply ignore a Supreme
Court decision overturning the federal requirement that everyone
obtain government-approved medical coverage, a mandate Gingrich

says is “clearly unconstitutional.” Here is Gingrich’s
reply:

He could try to do that. And the Congress would then cut him
off. Here’s the key: It’s always two out of three. If the president
and the Congress say the court is wrong, in the end the court would
lose. If the Congress and the court say the president is wrong, in
the end the president would lose. And if the president and the
court agreed, the Congress loses. 

Congress and the president, of course, enacted the Patient
Protection and Affordable Care Act together. Since that is always
true for acts of Congress, Gingrich is essentially saying there is
no judicial solution to unconstitutional laws. The only hope is
that elections will either put someone new in the White House or
(as in this case) change the makeup of Congress so that it might
stop the president from implementing a law approved by an earlier
Congress. In effect, the Constitution prevails only when an
electoral majority allows it to prevail, which radically undermines
its strength as a check on the popular will.

[Thanks to Leeann Kline for the tip.]