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12/27/2011

More on Gingrich and the Courts
Michael Ramsey

In the Washington Post, George Will on Gingrich, the Anti-Conservative:

He is the first presidential candidate to propose a thorough assault on the rule of law. That is the meaning of his vow to break courts to the saddle of politicians, particularly to members of Congress, who rarely even read the laws they pass.

….

Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich’s campaign against courts repudiates contemporary conservatism’s core commitment to limited government.

Logically, Gingrich should regret the dictatorial Supreme Court decisions that have stymied congressional majorities by overturning portions of the McCain-Feingold campaign finance legislation and other restrictions on political speech.

Logic, however, is a flimsy leash for a mind as protean as Gingrich’s, which applauds those decisions — and the Kelo decision. In Kelo, the court eschewed dictatorship and deferred to the New London, Conn., City Council majority that imposed a stunning abuse of eminent domain. Conservatives were appalled; Gingrich, inexplicably but conveniently, says he is, too.

Meanwhile, Curt Levey defends Gingrich in the Wall Street Journal: Gingrich vs. Judicial Activism.

Like any plan designed to adjust the constitutional balance of power, Mr. Gingrich's ideas for judicial reform raise a variety of intriguing constitutional questions. Though his freewheeling style adds to the focus on such questions, we should not lose sight of the plan's valuable contribution to the debate on the courts.

Among those contributions is a clear identification of the problem: "The power of the American judiciary has increased exponentially at the expense of elected representatives" such that "the Supreme Court has become a permanent constitutional convention." Mr. Gingrich understands that "judicial supremacy only survives due to the passivity of the executive and legislative branches." He acknowledges the importance of an independent judiciary but points out that "judicial independence does not mean . . . judges can never be held accountable for their judgments . . . however extreme and unfounded."