Private: Former Bush AGs Slam Gingrich’s Attacks on Courts

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:

Mr. Gingrich writes that the contemporary "power grab by the Supreme Court" is a "modern phenomenon and a dramatic break from all previous American history." (Anyone remember the court’s response to the New Deal?) Rebuking the court for substituting its will for that of Congress is downright strange, given that it is the Republicans who have run to the federal courts, imploring judges to strike down the Congressionally enacted Affordable Care Act.

In another attack on Gingrich’s approach to the Constitution, fellow candidate Ron Paul's website notes that Gingrich wants the Constitution to die, The Street reports.

Civil rights, Constitutional Interpretation, Executive Power, Importance of the Courts, Judicial independence, Racial Justice, Supreme Court