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Gingrich: **** the Supreme Court

[...] I hope and pray that the right is beginning to understand what an awful choice Gingrich would be as their presidential or vice-presidential nominee.
Unfortunately the right wing base is lapping up what Gingrich has to say -- they are the ones that have been unable to implement their agenda via the legislative process (outlawing of abortion), or by executive fiat (torture, suspension of habeas corpus, domestic use of military), so they intend to simply bypass one-third of the constitution in order to gut other parts of it.
 
Unfortunately the right wing base is lapping up what Gingrich has to say -- they are the ones that have been unable to implement their agenda via the legislative process (outlawing of abortion), or by executive fiat (torture, suspension of habeas corpus, domestic use of military), so they intend to simply bypass one-third of the constitution in order to gut other parts of it.

I think the majority of the right will reject Gingrich, and Romney will be the nominee.

Articles like this are bringing about too much baggage for Gingrich I think. If Gingrich is picked, the Dems will destroy him I think, and he will not garner the independant vote with tripe like this.
 
Unfortunately the right wing base is lapping up what Gingrich has to say -- they are the ones that have been unable to implement their agenda via the legislative process (outlawing of abortion), or by executive fiat (torture, suspension of habeas corpus, domestic use of military), so they intend to simply bypass one-third of the constitution in order to gut other parts of it.

Yep. Anyone who finds the Constitution to be nothing but a barrier to their goals is to be feared.
 
Kudos to Faux News for posting this article. Its not every day they shed light on a fellow Republican embracing Fascism.
True, but keep in mind that Fox -- like the hard right in general -- maintains its popularity and power based upon generating fear, anger, and hatred.

If they don't have someone to present as the embodiment of evil -- Obama, Muslims, welfare recipients, 'activist' judges; all of which President Gingrich would presumably eliminate -- they don't have an audience. Their key to success is keeping Obama in office for another 4 years.
 
Your hypothetical sounds reasonable on paper, but what Newt is proposing is breaking the law (acting contrary a judicial decree, which has the force of law).

For example: a radar cop is sitting behind the proverbial billboard, only giving tickets to drivers of speeding SUV's, while ignoring drivers of speeding compact cars. This is selective enforcement of the law. When the cop gets into his own car and speeds, he is breaking the law. While both acts are less than upstanding, the latter -- committing a crime -- is more serious than the former (failing to properly or ethically fulfill his sworn duties).

I understand what you are saying, but you missed my point.

Lately, our Presidents have taken upon themselves to be quite selective about their duties...even to the point of ignoring high level Court rulings. This has been allowed to happen by everyone, so why should it be a surprise that Gingrich would proclaim to do the same? Heck, at least he admits what he'll do...not just do it and ignore any objections.
 
No amendment is needed, unless you think our founders were stupid. Congress need only to pass a law or change it, and that nullifies the court. The court can rule on a law all day long, but if congress changes the law their ruling is worthless.

Um, wut?

If a law were declared unconstitutional by a court, and Congress merely passed the same law again, it would just be struck down again. If Congress passed a new law it believed did not have the constitutional problem the first one did, that might stand (but could still be challenged in court). If the issue before the court was just a matter of what a law says and not a constitutional question, it wouldn't involve Congress being overruled, since it passed the law.

Basically, the courts have more power over constitutional questions simply because they get the last word.
 
This is really going to hurt Newt if he manages to get the nomination. It just confirms the worst fears people have about him; he's erratic, acts on impulse, "creative" but not necessarily in a good way. If Obama ever said something that crazy I would have to pick my jaw up off the floor.
 

Don't know about that though. The supreme court is the end of the line pretty much. What they say goes and if you get activist judges like we have on there now, they can invent interpretations and voila it's done. The only way to bind the judiciary from such loose and free-willing interpretations is the make specific notes via a constitutional amendment but doing that is extremely slow and unlikely to happen. Judiciary has a helluva power.

They can strike down the executive sword, strike down the legislative purse and basically invent new laws. And they only police themselves.
 
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This is really going to hurt Newt if he manages to get the nomination. It just confirms the worst fears people have about him; he's erratic, acts on impulse, "creative" but not necessarily in a good way. If Obama ever said something that crazy I would have to pick my jaw up off the floor.

Obama has done essentially the same thing...he just hasn't admitted it. Since he didn't show his true colors until AFTER he was elected, there's not much anyone can do about it...except make sure he doesn't get re-elected.

While I don't agree with his proclamation, I find Gringrich's honesty quite refreshing.
 
I understand what you are saying, but you missed my point.

Lately, our Presidents have taken upon themselves to be quite selective about their duties...even to the point of ignoring high level Court rulings. [...]
You'll have to give me some examples.

You're also aware that Gingrich proposes removing dissenting judges from the bench, and outright dissolving the 9th Circuit? Has this been going on previously as well?
 
Three words for you Newt: Marbury V.S. Madison. The president and Congress do not have the authority to decide what is Constitutional. To quote Justice John Marshall: "It is emphatically the province and duty of the Judicial Department to say what the law is"

Sorry, so while it the job of the legislature to propose laws and the executive to execute them, it is up to the judiciary to tell the legislature and the executive what they actually say, and by passing those laws the legislature and executive lose the ability to change them?

Now I don't know too much about the US political/judicial structure, being Canadian, but Newt seems to have pointed to a number of instances where courts were established or abolished by the federal executive or legislature (forgot which he said).

If that's true, then clearly there is precedent for what he is saying.

And as an observer of the US judiciary from afar, the assessment that the 9th circuit court of appeal is overturned far mroe than any other appelate court seems about right (though I haven't looked up the stats). And if that's true, then there may be an issue on that court which warrants correction. And someone must have authority to do that, the only question is who that someone is.

And, at least according to Newt, that someone is and has been congress and the executive.

And I know all of this is just argument. But the path seems pretty straightforward for someone to actually look it up and figure all this stuff out.
 
1. You'll have to give me some examples.

2. You're also aware that Gingrich proposes removing dissenting judges from the bench, and outright dissolving the 9th Circuit? Has this been going on previously as well?

1. Example:

The Obama Administration acted in contempt by continuing its deepwater-drilling moratorium after the policy was struck down, a New Orleans judge ruled.

Interior Department regulators acted with “determined disregard” by lifting and reinstituting a series of policy changes that restricted offshore drilling, following the worst offshore oil spill in U.S. history, U.S. District Judge, Martin Feldman of New Orleans ruled yesterday.
U.S. in Contempt Over Gulf Drill Ban, Judge Rules - Bloomberg

2. That has not happened, that I know of.


Please be assured that I don't condone these types of unconstitutional actions by ANY President, but it seems to me that some forum members will make a big deal if one person expresses desires to act in this manner...yet they are silent when another person actually acts.

Seems hypocritical to me.
 
So basically you really don't understand how the separation of powers works. If the SC declares a law unconstitutional, Congress can try to change the law to make it constitutional per the Court's ruling, but they can't change what is or is not constitutional. That is the power of the Court.

Well, arguably it's not. What changes what is or is not constitutional is, or I assume ought to be, what is written in the constitution. You have a process for creating and amending your constitution. My understanding is that it involves various state and national elected representatives or bodies.

While it is the court's role to interpret law, it is not their job to change it. That is a pretty fundamnetal distinction that people often lose sight of.

We have the same sort of discussions in Canada about the 1982 Constitution Act, which contained a Charter of Rights. prior to 82, the courts could try to figure out what took precedence when different laws contradicted each other, and could strike laws as being outside legislative powers where a provincial legislature passed a law within federal legislative authority and vice versa, but it's role was pretty limited.

However, with the Charter, which is very vague as all such bills of rights tend to be, the Court has taken on a far more activist and progressive role.

Whether that is a positive or a negative is debated (though generally favoured). But I think it has been universally acknowledged as a major change in the role of the judiciary, initiated by constitutional reforms which in turn were initiated by the federal and (most) provincial legislatures.

I don't know if this is true, but If you've seen in the US that this change has been driven not by legislative initiative but by judicial creep, then it does make sense to consider what legal avenues exist to push back where teat judicial creep was not contemplated or sought by those that created such constitutions and laws in the first place.
 
Don't know about that though. The supreme court is the end of the line pretty much. What they say goes and if you get activist judges like we have on there now, they can invent interpretations and voila it's done. The only way to bind the judiciary from such loose and free-willing interpretations is the make specific notes via a constitutional amendment but doing that is extremely slow and unlikely to happen. Judiciary has a helluva power.

They can strike down the executive sword, strike down the legislative purse and basically invent new laws. And they only police themselves.

but is that what was intended or merely what has happened through judicial creep and undue deference?

Again to contrast to a jurisdiction that I know at least something about, even our Charter of Rights contains a "notwithstanding clause" that allows legislatures to pass laws that directly contravene the individual rights set out in the Charter. While legislatures cannot do this for laws outside their jursidiction (i.e., provincial legislation usurping federal powers and vice versa) as far as individual rights set out in the Charter, they ultimately all are subjugated to the legislature.

Since I assume you don't have that, I would expect there are reasonable grounds to believe that the constitution was intended to trump general legislative intent and, to the extent that the courts are responsible for ensuring compliance with the constitution, that the courts were specifically vested with vetting and modifying/voiding laws that breached the rights and powers set out in the constitution.

However, to the extent that there are other laws lawefully passed and in force that allow for legislative oversight of the judiciary, or to the extent that such a law could be passed that would not in itself violate the constitution, it would be well within legislative authority to pass and use those laws to modify the structure or composition or reach of the judiciary.

Because anything that isn't specifically assigned to the judiciary as a power presumably would accrue to either the legislature or executive (not sure which in your system)
 
1. Example:

Your example is nothing like what Newt proposed. In the moratorium case, the judge initially ruled that the government's moratorium was invalid because the order instating it didn't contain sufficient factual basis. Understandable, given that the reasons were stated in a paragraph and a half. The government then amended the order to include over 20 pages of reasoning for the moratorium, and they reinstated it. The judge later issued a contempt order, but he essentially moved the goal posts. He argued that the administration issued essentially the same moratorium, which was true, but his basis for striking it down didn't have anything to do with the nature of moratorium itself. His order just said that the government hadn't provided enough reasoning for the moratorium. And of course by the time the contempt ruling was issued the moratorium had long since been lifted. The government had good grounds to appeal but chose not to, as the penalty was just attorneys' fees.

In other words, the government had a good faith belief that they were complying with the judge's order. The judge disagreed. That's entirely different than saying you will try to remove judges with whom you disagree.
 
Your example is nothing like what Newt proposed. In the moratorium case, the judge initially ruled that the government's moratorium was invalid because the order instating it didn't contain sufficient factual basis. Understandable, given that the reasons were stated in a paragraph and a half. The government then amended the order to include over 20 pages of reasoning for the moratorium, and they reinstated it. The judge later issued a contempt order, but he essentially moved the goal posts. He argued that the administration issued essentially the same moratorium, which was true, but his basis for striking it down didn't have anything to do with the nature of moratorium itself. His order just said that the government hadn't provided enough reasoning for the moratorium. And of course by the time the contempt ruling was issued the moratorium had long since been lifted. The government had good grounds to appeal but chose not to, as the penalty was just attorneys' fees.

In other words, the government had a good faith belief that they were complying with the judge's order. The judge disagreed. That's entirely different than saying you will try to remove judges with whom you disagree.

But arn't there ways to recast the intentions in a way that doesn't reach the objectionable level of "getting rid of those you disagree with"? And wouldn't you dismissing those arguments fall into the same shifting goal posts argument.

Cause, for example, my understanding is that the 9th circuit is overturned way more than any other appelate court, and has a pretty wide reputation as being hyper liberal in its overall positions.

And since the law is that law, various interpretations of the law must be right or wrong (even though we may not know what the "correct" view of the law is, there must be a correct view or the law would be too ambiguous to be enforceable or otherwise would contrave the principle that the law should apply equally to everyone). And if the high cort keeps telling one subordinate court that it is wrong and the subordinate court continues to purusue interpretation of the law through its ideological mindset (which has most frequently been repudiated by a court which is supposed to bind it), then should there not be some mechanism to address that systematic dysfunction, which ultimately is both unjust and inefficient?

And if so, then what is that mechanism?
 
But arn't there ways to recast the intentions in a way that doesn't reach the objectionable level of "getting rid of those you disagree with"? And wouldn't you dismissing those arguments fall into the same shifting goal posts argument.

Cause, for example, my understanding is that the 9th circuit is overturned way more than any other appelate court, and has a pretty wide reputation as being hyper liberal in its overall positions.

And since the law is that law, various interpretations of the law must be right or wrong (even though we may not know what the "correct" view of the law is, there must be a correct view or the law would be too ambiguous to be enforceable or otherwise would contrave the principle that the law should apply equally to everyone). And if the high cort keeps telling one subordinate court that it is wrong and the subordinate court continues to purusue interpretation of the law through its ideological mindset (which has most frequently been repudiated by a court which is supposed to bind it), then should there not be some mechanism to address that systematic dysfunction, which ultimately is both unjust and inefficient?

And if so, then what is that mechanism?

First of all, 9th Cir. reversal rates are overstated. Last year and the year before, they were reversed at the third highest rate. Overall, though, they have had more cases taken up by the Court. Does that mean they're wrong? At the moment we have an extremely conservative Court, and the 9th is traditionally a pretty liberal Circuit Court. These things even out over time, and there is are existing mechanisms to deal with them. Namely, Presidents get to appoint judges to the federal courts. Other than that the judiciary is independent, and that's how it's supposed to be. They are a separate but equal branch, and each President is not entitled to replace the judiciary with one that's more agreeable to them. That would rather defeat the purpose of the system of checks and balances established in the Constitution.
 
First of all, 9th Cir. reversal rates are overstated. Last year and the year before, they were reversed at the third highest rate. Overall, though, they have had more cases taken up by the Court. Does that mean they're wrong? At the moment we have an extremely conservative Court, and the 9th is traditionally a pretty liberal Circuit Court. These things even out over time, and there is are existing mechanisms to deal with them. Namely, Presidents get to appoint judges to the federal courts. Other than that the judiciary is independent, and that's how it's supposed to be. They are a separate but equal branch, and each President is not entitled to replace the judiciary with one that's more agreeable to them. That would rather defeat the purpose of the system of checks and balances established in the Constitution.

OK, that makes sense. And sorry, the checks and balances thing is a bit foreign coming from a parliamentary system where the executive is drawn from and often completely controls the legislature and wherre the judiciary has historically been largely subbordinate. I honestly don't know how your constitutional powers all fit together.

But you guys also do some pretty ... zany things (in our view) like electing judges. If the people have the right to elect local judges, then can those rights not be extended up the chain to appelate level or be delegated upwards to the legislature?

Also, is what Gingrich said wrong? Have there been multiple historical instances hwere the legislature/executive has undertaken to reform court structure in response to what was viewed as a court position that diverged too far from the position of the legislature/executive?

And if so, were those previous acts illegal or did something happen to change the law in the interim?
 
OK, that makes sense. And sorry, the checks and balances thing is a bit foreign coming from a parliamentary system where the executive is drawn from and often completely controls the legislature and wherre the judiciary has historically been largely subbordinate. I honestly don't know how your constitutional powers all fit together.

But you guys also do some pretty ... zany things (in our view) like electing judges. If the people have the right to elect local judges, then can those rights not be extended up the chain to appelate level or be delegated upwards to the legislature?

Also, is what Gingrich said wrong? Have there been multiple historical instances hwere the legislature/executive has undertaken to reform court structure in response to what was viewed as a court position that diverged too far from the position of the legislature/executive?

And if so, were those previous acts illegal or did something happen to change the law in the interim?

We don't elect federal judges. Some, but not all, states have judicial elections.

The most famous example of interference with the federal courts was FDR's Court packing scandal. He tried to increase the number of justices on the Supreme Court, which would have allowed him to appoint new ones and thus gain a more sympathetic audience. The effort failed and is widely regarded as a stain on Roosevelt's otherwise bright reputation. It's hardly something one would cite as a great precedent ... if one had a good understanding of our constitutional system.
 
Then there is the broader philosophical point - if as you say the current Supreme Court is extremely conservative, and presumably over time it could become "extremely liberal", then is it really right to devolve absolute authority to asystem that is so far removed from the will of the people? I know people like to shout at the other side about facism and the like, but wouldn't that be equally true for any who deem they have absolute authority to dictate law without considering the will of the people (whether they are recently elected executives extending their power to other branches or members of the judicial branch that use the unfettered discretion they have as arbiters of the law to pursue ideological objectives)?

I guess, stated differently, in the hyper-partisan reality that is the US system (where people don't even feign impartiality in all different sorts of areas where we actually use impartial arbiters), wouldn't it make some sense to argue that the best solution is to devolve authority to those representatives who are directly accountable to the population to do its bidding, without devolving it too far such that those appointed are purely pandering to the masses (as with elected judges)?

I'm not sure where I stand on any of this, other than to note that the partisan bickering on this between the sides over what Gingrich said seems to miss all of this nuance and instantaneously devolve into demagoguery.
 
We don't elect federal judges. Some, but not all, states have judicial elections.

The most famous example of interference with the federal courts was FDR's Court packing scandal. He tried to increase the number of justices on the Supreme Court, which would have allowed him to appoint new ones and thus gain a more sympathetic audience. The effort failed and is widely regarded as a stain on Roosevelt's otherwise bright reputation. It's hardly something one would cite as a great precedent ... if one had a good understanding of our constitutional system.

Would tend to agree, this is certainly something you would see out of a tinpot autocrat or dictator (didn't Chavez do this recently?).

I guess more specifically, Gingrich mentioned, who, Abe Lincoln and someone else earlier than him? What happened there and is it dissimilar to what Gingrich has actually proposed?
 
Simply put, in rightwingspeak, when the justice branch backs a law they agree with, it's the "law of the land." When the justice branch backs a law they disagree with, it's "legislation from the bench."

Nothing new here people. Move along.
 
Your example is nothing like what Newt proposed. In the moratorium case, the judge initially ruled that the government's moratorium was invalid because the order instating it didn't contain sufficient factual basis. Understandable, given that the reasons were stated in a paragraph and a half. The government then amended the order to include over 20 pages of reasoning for the moratorium, and they reinstated it. The judge later issued a contempt order, but he essentially moved the goal posts. He argued that the administration issued essentially the same moratorium, which was true, but his basis for striking it down didn't have anything to do with the nature of moratorium itself. His order just said that the government hadn't provided enough reasoning for the moratorium. And of course by the time the contempt ruling was issued the moratorium had long since been lifted. The government had good grounds to appeal but chose not to, as the penalty was just attorneys' fees.

In other words, the government had a good faith belief that they were complying with the judge's order. The judge disagreed. That's entirely different than saying you will try to remove judges with whom you disagree.

What Obama did was essentially the same thing as:

"Gingrich argues that when the Supreme Court gets it wrong constitutionally, the president and Congress have the power to check the court, including, in some cases, the power to simply ignore a Supreme Court decision. ".
 
One thing I don't think I've seen mentioned here (apologies if it has been), is the fact that Congress and the President DO have the power to dissolve the 9th Circuit Court.

The Constitution establishes a Supreme Court and leaves it up to the Legislative Branch to put into place whatever lower courts they deem necessary or desirable. Congress did that way back and the President, at the time, signed off on it. At any time, they could change things.
 
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