Monday, December 19, 2011
The rather impetuous comments of Newt Gingrich over the weekend on Face the Nation have received some warranted scrutiny, including over at Prawfsblawg by my friend Paul Horwitz. In response to some questions by the host about his view of the Supreme Court and of courts in general, Gingrich said a few things about the secularism in evidence in the Mt. Soledad Cross case out of the Ninth Circuit as well as the "under God" Pledge of Allegiance case decided by the Ninth. Early in the interview, he also said this:
I think part of the advantage I have is that I'm not a lawyer. And so as historian, I look at the context of the judiciary and the constitution in terms of American history. The fact is, I'll just give you two examples -- Judge Biery's ruling on June 1st that he would jail the superintendent if anybody at the high school graduation used the word benediction, used the word invocation, asked for a moment of silence, asked the audience to stand, or mentioned God, he would jail the superintendent was such an anti-American dictatorship of speech that there's no reason the American people need to tolerate a federal judge who is that out of sync with an entire culture. So I have to ask the question, is there an alternative? What's the recourse? Well, one recourse is impeachment.
One interesting feature of the discussion is the move to threaten or, perhaps better in this case, to suggest, impeachment. This is, of course, nothing new. One of the first articles I wrote (and which has all the marks of an early piece) had to do with congressional threats of impeachment against federal judges; the practice is very old, indeed, in no small measure because it is so difficult to actually impeach a judge (or anybody else for that matter) -- I document some of the contexts of successful and threatened judicial impeachments in the piece.
Threats of removal against the judiciary, whether by Congress or the executive, can also, in appropriate cases, serve a kind of signaling function -- again, especially so since the prospects of actual impeachment because of disagreement with a substantive outcome are so low.
In the early-middle 2000s, there was discontent in Congress that judges were not adhering strictly enough to the United States Sentencing Guidelines, and were not adequately explaining the reasons for their departures downward in imposing lighter sentences than that which was called for by the Guidelines. Congress responded by including several provisions in the PROTECT Act which required judges to report every instance of departure, including a thorough explanation for the sentence. And individual members of Congress (Tom Feeney and James Sensenbrenner among them) targeted specific judges for withering criticism, with attendant threats of impeachment.
One can differ on the degree to which such signaling is a positive practice. My own view is that to the extent it is positive for the branches to signal such things to one another, it becomes less and less so as the signal sent becomes more and more general, or more and more disconnected from a particular case or specific area of law. That is, it might be that signaling -- whether by the judiciary or Congress or the executive to any of their respective peer branches -- is both more effective and a more positive political phenomenon when it zeroes in on a very particular area of legal disagreement, rather than when it signals unhappiness with, say, "secularism."