Gingrich: **** the Supreme Court

[Thunder]

But is that what he propsoed?...

In a 28-page position paper entitled, "Bringing the Courts Back Under the Constitution," 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

yes, it dos appear this way.

 

[CJ 2.0]

While honesty and being able to debate and engage people well in conversation are good qualities, a President also needs to be able to appeal to a good portion of the people as well. If a Presidential candidate says something that the majority of the people do not agree with, they are not likely to get elected, no matter how well they say it or can explain their position.

Agrere, unless they can work to shift opinion. He seemed to have done that in the early to mid 90s pretty effectively. Reagan also seems to have been able to do that to get buy in into ideas that were not initially popular.

In fact, isn't that Gingrich's whole point in his disagreements with the right of the republican party like Paul Ryan. His point was you can't just impose that sort of massive change onto the population against it's will, because government derives its legitimacy from the consent of the governed. His point was that whatever plan to save your social programs you land on needs to be iterative enough and flexible enough to get wide-spread buy in. Something I would note Obama failed miserably at with the whole Obamacare lead from behind debacle.

I'm sorry, but I honestly don't see how the perception of Gingrich from the left even remotely accords with what he's said and done in this campaign (I know he had a reputation for being a massive douch in the 90s, but I don't think that's what you are worried about).

 

[CJ 2.0]

In a 28-page position paper entitled, "Bringing the Courts Back Under the Constitution," 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

yes, it dos appear this way.

sorry, I looked at it briefly, and that's not what it seems to say. My quick look made it seem like he was painting a universe of possible options to describe the entire choice set and this was once of the conceivable options.

He also used an example of the judiciary trying to impose its will in foreign relations against the express desire of the executive and legislature.

And I think if that were to happen, there are bad outcomes all around. Because that clearly would be a judicial over-reach and so something bad would be the result whether that "ruling" is left to stand and be respected or not.

But to me the answer to that issue is pretty clear. Judges should understand the law and should focus on enforcing it, not making it fit their ideological world view.

 

[haymarket]

The problem Gingrich suffers from is his profound belief that he is the smartest kid in the whole damn school and all that needs to happen is for everyone to listen and they all can reach enlightenment as he has done. Along the way he will do as he did here - say extremist nonsense that offends a whole lot of people. The recent child labor flap is another recent example. Imagine if he sews up the GOP nomination next spring and we have six or seven months of this to look forward to. Each week some new adventure where his ego overloads his mouth, It will be something to look forward to..... IF you are a Democrat.

 

[roguenuke]

Agrere, unless they can work to shift opinion. He seemed to have done that in the early to mid 90s pretty effectively. Reagan also seems to have been able to do that to get buy in into ideas that were not initially popular.

In fact, isn't that Gingrich's whole point in his disagreements with the right of the republican party like Paul Ryan. His point was you can't just impose that sort of massive change onto the population against it's will, because government derives its legitimacy from the consent of the governed. His point was that whatever plan to save your social programs you land on needs to be iterative enough and flexible enough to get wide-spread buy in. Something I would note Obama failed miserably at with the whole Obamacare lead from behind debacle.

I'm sorry, but I honestly don't see how the perception of Gingrich from the left even remotely accords with what he's said and done in this campaign (I know he had a reputation for being a massive douch in the 90s, but I don't think that's what you are worried about).

I worry about when he says things like "the President and/or Congress should just ignore rulings of the SCOTUS". Did he say anything that could lead people to believe that the Legislative and Executive branches are not held in check by the Judicial branch? If so, then it is against one of the main principles that most Americans are taught in school about our system of government, which is that we have checks and balances and the 3 branches are meant to keep each other from basically doing what they want. If the other two branches want to override a SCOTUS ruling, then they need to make what they want an Amendment and get it passed through proper means. If they can't, then it must mean that the people don't believe enough in what they are trying to get passed.

If he didn't say anything like this, then there are plenty of other things that he says that I do not agree with him on, but I apologize for believing what is being put out.

I am neither Republican nor Democrat. I am an Independent because some things I am on the side of the Dems with (gay rights, UHC), some things I agree with Repubs on (gun rights, illegal immigration (at least what they say)), and other things I am either in the middle about or believe completely outside either (most financial issues, abortion). And those who are like me most likely outnumber either group, even if they claim to be a part of one of our major parties (although their issues may be different).

 

[AdamT]

But is that what he propsoed? I thought he propsoed using legislative/executive powers that already exist under your constitution to consolidate and reshuffle the judicial system and/or address perceived issues with who has been appointed to the bench.

And maybe some of that is not permitted, but I don't think that anyone had proposed the executive simply ignore laws it doesn't like (although the Obama administration seems to have done that in spades and no one seems to care that much)

What you seem to be missing is that this would be a clear violation of the Constitution. There is nothing in the law that allows the legislature to second guess the opinions of a sitting federal judge. The whole point of our judiciary is that they are independent. Judges are appointed for life and may only be impeached for misconduct -- NOT for simply reaching a result that the president or Congress doesn't like.

 

[CJ 2.0]

What you seem to be missing is that this would be a clear violation of the Constitution. There is nothing in the law that allows the legislature to second guess the opinions of a sitting federal judge. The whole point of our judiciary is that they are independent. Judges are appointed for life and may only be impeached for misconduct -- NOT for simply reaching a result that the president or Congress doesn't like.

well I don't know. He has said such a power exists and in fact has been used numerous times by past sitting presidents (who incidentally seem to be ones the American people view as being pretty good former presidents).

Is he right in that? I still don't know what those old presidents did or what powers Newt is pointing to.

You would think there is at least one actual reporter out there who can do a real honest "fact check" rather than just partisan hacks looking to assign pinocchios.

Anyone?

 

[AdamT]

well I don't know. He has said such a power exists and in fact has been used numerous times by past sitting presidents (who incidentally seem to be ones the American people view as being pretty good former presidents).

Is he right in that? I still don't know what those old presidents did or what powers Newt is pointing to.

You would think there is at least one actual reporter out there who can do a real honest "fact check" rather than just partisan hacks looking to assign pinocchios.

Anyone?

I know you don't know, but I DO know. :lol:

All of the examples that Gingrich cites are regarded as examples of executive overreach.

 

[Redress]

Just in case any one is interested, here is the actual position paper. It would give people a chance to learn what Gingrich is actually saying, and his logic(which so far in my reading is absurd). http://www.newt.org/sites/newt.org/files/Courts.pdf

Such a view holds that only a constitutional amendment can limit or overturn a Supreme Court
decision on constitutional questions. But surely anyone holding this view would concede that
the Supreme Court could reverse itself, which it has done well over 100 times. If Supreme Court
decisions can only be overturned by a subsequent court decision or by constitutional amendment,
then that would mean that that a Supreme Court decision interpreting the Constitution has the
force of a constitutional amendment.
This view is fatally flawed. The Founding Fathers created a system of checks and balances
among the three federal branches that was intended to operate in the normal course of governing.
It was precisely this balance of power between the three branches that the founding fathers
believed would protect freedom. They based their understanding of a constitutional division of
powers on Montesquieu's writing which would have explicitly rejected any one branch's
supremacy. The amendment process was reserved for making fundamental changes to our
constitutional structures; the amendment power was not intended to be used as a way to check
and balance Supreme Court decisions. Our founding fathers believed that the Supreme Court
was the weakest branch and that the legislative and executive branches would have ample
abilities to check a Supreme Court that exceeded its powers.

Oddly, past congresses and presidents have found ways to make laws even after SCOTUS has thrown out similar laws. They do this by the simple expedient of reforming the law to pass constitutional muster. In fact, SCOTUS has been known to lay out a rough framework of how the law would have to be made to pass constitutional muster. The whole document is seriously flawed in it's reasoning, and some of the examples are hilariously bad("what if SCOTUS ruled 2+2=5?").

 

[AdamT]

Just in case any one is interested, here is the actual position paper. It would give people a chance to learn what Gingrich is actually saying, and his logic(which so far in my reading is absurd). http://www.newt.org/sites/newt.org/files/Courts.pdf



Oddly, past congresses and presidents have found ways to make laws even after SCOTUS has thrown out similar laws. They do this by the simple expedient of reforming the law to pass constitutional muster. In fact, SCOTUS has been known to lay out a rough framework of how the law would have to be made to pass constitutional muster. The whole document is seriously flawed in it's reasoning, and some of the examples are hilariously bad("what if SCOTUS ruled 2+2=5?").

What a dangerously stupid misinterpretation of history this is. The whole paper appears to be one big straw man argument.

 

[AdamT]

Just realizing that this is part of a long-standing attack by Gingrich on the courts.

Some interesting comments by former Bush Administration officials:

In a 2009 speech, Gingrich called for abolishing the 9th Circuit as it now exists because it had ruled seven years earlier that the phrase "under God" in the Pledge of Allegiance was unconstitutional. (The 9th Circuit ruled again on the case in 2010 and found the phrase to be constitutional.) During his run for the Republican presidential nomination, Gingrich has stated that, if elected president, he would ignore certain Supreme Court rulings on national security and ask Congress to summon for questioning judges who rule against his liking.

These ideas were recently panned by two former Republican attorneys general. In an interview with Fox News, former Attorney General Michael Mukasey said Gingrich's plans were "dangerous, ridiculous, totally irresponsible, outrageous, off the wall, and would reduce the entire judicial system to a spectacle."

Former Attorney General Alberto Gonzales told Fox News, "[T]he notion of bringing judges before Congress like a schoolchild being brought before the principal to me is a little bit troubling. I believe that a strong and independent judiciary doesn't mean that the judiciary is above scrutiny, that it is above criticism for the work that it does. But I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges."

 

[Karl]

Sorry, directing people to act in a particular way whether they want to or not isn't quite liberal democratic. [...]

And constructing a strawman is an illogical form of debate.

Why not argue the facts instead of making them up in the form of an ad hominem argument? (also an invalid form of logic, BTW).

 

[Karl]

[...] And for the record, I don';t really see what Gingrich proposed as being "fascist". [...]

1. Using the color of law (authority, power) to silence (disempower) those (judges) who criticize (rule against) your policies and/or actions.

2. Dissolving entire courts (9th Circuit, in Newt's example) because you disagree with the rulings.

Newt's other fascist tendencies, since I'm on a roll.

3. Bigotry/racism (prejudice against Palestinians {not a real people} and inner city blacks {lazy, need to be cleaning the toilets of their classmates}).

4. Homophobia/racism.

5. Excessive/aggressive nationalism.

I do believe I told you, earlier, that a dictionary would have helped. . . . .

 

[Mycroft]

If this is true, then the issue becomes normative. there often are normative practices in mature systems where even if someone technically has an absolute right he or she is extremely reluctant to exercise that right unless the circumstances are dire enough to call for this exercise.

It's like saying yes the legislature has the right to expropriate private property whenever it wants, but it should exercise that right sparingly or it would undermine its overall validity within the broader system in the eyes of the public.

Sounds like the system put in place was designed to allow modification for administrative reasons (e.g., efficiency in ensuring adequate coverage or to address over-saturation). So while the right may exist absolutely, if it was allocated based on a more narrow concern should those to which the right has been granted feel constrained to exercise that tright only in furtherance of the objective for which the right were allocated in the first place.

Note, this is actually a similar argument to saying that judges should not be particularly activist while sitting on the bench, and should never allow ideological objectives to colour their interpretation of the law. Sure they have the right to allow such colour to seep in, but as a normative matter they should not and the practice if routinely engaged in ultimately would undermine the legitimacy of the authority of the court.

And yet, this activism is what frequently happens...especially concerning the 9th Circuit Court.

Now, wouldn't it be incumbent upon the Legislature to correct such a situation? They have the power...wouldn't they also have the responsibility?

 

[Redress]

And yet, this activism is what frequently happens...especially concerning the 9th Circuit Court.

Now, wouldn't it be incumbent upon the Legislature to correct such a situation? They have the power...wouldn't they also have the responsibility?

Activism is still just crying when rulings go the way you don't like.

 

[AdamT]

And yet, this activism is what frequently happens...especially concerning the 9th Circuit Court.

Now, wouldn't it be incumbent upon the Legislature to correct such a situation? They have the power...wouldn't they also have the responsibility?

First, the legislature doesn't have the power to correct the situation, except insofar as they can give an up or down vote to judicial nominees or remove them for malfeasance. They could also eliminate a Circuit, like the 9th, but that would be counter to the design of our federal/republican system. The circuit courts tend to mirror the character of the regions where they sit, which is as it should be. It is the Supreme Court's role to resolve differences between the circuits -- not Congress' or the Presidents'.

 

[1Perry]

And yet, this activism is what frequently happens...especially concerning the 9th Circuit Court.

Now, wouldn't it be incumbent upon the Legislature to correct such a situation? They have the power...wouldn't they also have the responsibility?

We have a way to correct it for those who feel they are wrong. I agree that the 9th really doesn't seem to concern itself with the Constitution as they are so often overturned but the legislature is NOT the avenue for correction.

The avenue is to vote for those you feel will nominate more moderate justices.

 

[samsmart]

You really believe the Supreme Court outranks the President and Congress. You better go back to school boy, and get some learning.

The Supreme Court doesn't outrank the President and Congress.

The Supreme Court is a check against the President and Congress.

 

[AdamT]

The Supreme Court doesn't outrank the President and Congress.

The Supreme Court is a check against the President and Congress.

This isn't really that complicated. The three branches don't outrank each other because they have three separate functions. Congress can create laws and the President cannot. That doesn't mean that Congress outranks the executive. The President enforces the laws and conducts foreign policy. That doesn't mean that the President outranks Congress. The judiciary interprets the laws and determines their constitutionality. That doesn't mean that they outrank Congress or the executive. Where you have a problem is when one branch tries to encroach on another branch's role, which is what Gingrich has proposed.

 

[OpportunityCost]

Kudos to Faux News for posting this article. Its not every day they shed light on a fellow Republican embracing Fascism.

So you think Andrew Jackson was a fascist as well? Because he not only said it, he did it.

 

[Peter Grimm]

I think Newt is exactly right here, and that is one reason he will be getting my vote.

The intent of the founders was for the three branches of government to check and balance one another's authority. The problem today is that judges legislate from the bench and tend to be liberal with their interpretation of the Constitution, departing greatly from our core values as a nation and from our tradition.

Newt's example of the 9th circuit's ruling that the phase "one nation, under God" should be removed from the Pledge of Allegiance is but one very illustrative example.

But the real issue is this: If the judiciary in fact legislates from the bench, as it does today, then we fail to be a representative democracy.

"We the People" fails to mean anything. NO American should stand for that.

I would MUCH rather decisions that affect my daily life be made by my state officials and my congressman, whom I elect, than an autocratic judiciary.

Well, well, well... the fascist coming-out party for Newt, it seems (color me un-surprised). If Alberto torture-em-till-they-drop Gonzales thinks Newt's position is extreme, anybody to the left of Darth Vader had better head to the bunker for the duration. Dismantling the courts will be the first step to unrestrained power; will Congress be next on the chopping block? Or will the Tea Party caucus simply rubber stamp President Newt's policies as he continues to dismantle the constitution and a system that has kept the baser aspects of human behavior (cruelty) in check?

However, keep in mind that the right wing base has been primed for such a constitutional upheaval, via decades of right wing claims of "judicial activism" and "legislation from the bench", and of course the non-stop emotional heart-string tugging bleats about baby-killing abortion (but, after the baby is birthed out of the womb, Newt has no problem subjecting the baby to the death penalty for smuggling drugs).

OWS protesters, better don your bullet proof vests -- since will disagreement obviously be no longer be allowed, dissent will surely be terminated with extreme prejudice :shock:

 

[OpportunityCost]

Speaking of the 9th...they are the most overturned court in the history of the US. They dont just practice judicial over reach, they set the standard.

 

[samsmart]

This isn't really that complicated. The three branches don't outrank each other because they have three separate functions. Congress can create laws and the President cannot. That doesn't mean that Congress outranks the executive. The President enforces the laws and conducts foreign policy. That doesn't mean that the President outranks Congress. The judiciary interprets the laws and determines their constitutionality. That doesn't mean that they outrank Congress or the executive. Where you have a problem is when one branch tries to encroach on another branch's role, which is what Gingrich has proposed.

I don't think the Supreme Court does encroach on another branch's role.

The role of Congress is to write law.
The role of the President is to enforce law.
The role of the Supreme Court is to interpret law.

Now not everyone may like it when the Supreme Court does its job, but in any ruling someone is going to get pissed off. And when it comes to law there needs to be a final interpreter of the law. And since this is the sole province of the Supreme Court I'd rather they do it since they have no other powers.

The Supreme Court doesn't write law - they only interpret the laws written by Congress. The Supreme Court doesn't enforce law - they only tell the President how he may enforce it.

And if the Supreme Court should overreach Congress and the President has plenty of their own powers to act.

But I don't think the Supreme Court is at a place where it should be ignored.

 

[Thunder]

I'm a little sick of this whole "legislating from the bench" nonesense.

SCOTUS does one thing, and one thing only: rule on the Constitutionality of laws.

"legislating from the bench" is merely a codeword for "making judgements we don't like".

 

[OpportunityCost]

Thats not at all true. Many times the bench twists a laws intent by striking down provisions, leaving a law that is almost entirely unworkable for the legislative purpose it was meant.
Not saying that the legislature in question cannot revise the law later but that takes time and in the meantime you wind up with bad precedent, bad judgements and bad infractions foisted onto the public in ways not intended.

I guess what Im saying is piecemeal strikedowns of laws needs to stop, a law need to be ruled on in its entirety and made law or stricken and sent back to the legislature.