Judicial independence

by Nicole Flatow

Former George W. Bush attorneys general Michael Mukasey and Alberto Gonzales are expressing alarm over Republican presidential primary candidate Newt Gingrich’s latest proposal to eviscerate the power of the courts, Fox News reports.

Mukasey calls some of the ideas in Gingrich’s position paper “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle," and Gonzales takes particular aim at the suggestion that Congress subpoena judges after controversial rulings, saying, “I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges." 

In his 28-page paper, "Bringing the Courts Back Under the Constitution," Gingrich suggests a number of radical ways in which the legislative and executive branches should rein in “lawless judges,” including by eliminating courts they don’t like, limiting the scope of decisions those courts can make, and simply ignoring Supreme Court decisions.

On Gingrich’s suggestion that the entire U.S. Court of Appeals for the Ninth Circuit be eliminated, Mukasey says, “The fact is the Constitution empowers the Supreme Court to establish lower federal courts. Presumably it can undo lower federal courts. But to say that you are going to undo an entire court -- simply because you don't like some of their decisions -- when there are thousands of cases before that court is totally irresponsible."

Mukasey and Gonzales echo the concerns of several other commentators, who have expressed particular alarm over Gingrich’s attack on the landmark decision Cooper v. Aaron, in which all nine members of the Supreme Court affirmed a court order calling for desegregation. 

“If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches,” The New York Times editorial board asserts.

In her New York Times Opinionator column, American Constitution Society Board Member Linda Greenhouse calls “truly head-spinning” the “tenuous hold that this screed, from a onetime history professor, has on American history.”  She continues:

by Jeremy Leaming

A proposed balanced budget amendment is dead, for now. The Senate defeated two versions of the measure aimed at enshrining in the Constitution a demand that the federal government maintain a balanced budget.

The House handily defeated a version, similar to one Congress nearly passed in 1995, last month. The Senate, however, had to vote on a so-called balanced budget amendment because of the deal reached in late summer to end the debt-ceiling debacle. The Senate, mostly along Party lines, rejected two versions of a balanced budget amendment.

Sen. Dick Durbin, (D-Ill.), speaking from the Senate floor yesterday, said some of his colleagues “believe we should enshrine in our Constitution their views of what the federal budget should look like. They want to radically reshape our constitutional framework in order to relieve Congress of its political and moral responsibility to make tough choices about taxing and spending. They want to tie the hands of Congress on budget decisions and pass important decisions on to another branch of government, our federal judiciary.”  

“This is not what the Founding Fathers intended,” Durbin continued. “The Constitution gives the power of the purse expressly to Congress. Fulfilling the constitutional duty carries some political risk, but we all signed up for that job. Members of Congress should not try to change the Constitution to avoid their duty to make tough and important decisions.”

Earlier this month, Alan B. Morrison, a distinguished law professor at George Washington University, testified before a Senate panel against a balanced budget amendment. Morrison, in part, said the measures being considered would likely force the federal courts into budgetary matters. He said that “thrusting the courts into budget battles is to me, and I believe to most others who have given the matter any serious thought, a terrible idea.” Morrison’s entire testimony is available here.

Durbin, during his floor remarks, cited Morrison’s testimony, saying, “He asked the basic question: Who is going to enforce this amendment? If in fact Congress does something in violation of the amendment, who can sue? And which court would consider it? It is a valid question because ultimately this will end up in the courts. The courts will have to make some rather unique decisions. What are the outlays and receipts of the United States? What was the gross domestic product? These are issues which many in the court may find challenging if not impossible to deal with on a timely basis.”