Sunday, December 18, 2011

Judging Newt

When Newt Gingrich starts a sentence with "As a historian ...," I brace myself. You never know what's coming, but, as a historian, I worry.

So it was the other night at the final pre-Iowa caucus debate. When Megyn Kelly challenged Gingrich on his proposals for judicial "reform," noting that two former Republican attorneys general called his ideas "dangerous, ridiculous, outrageous, totally irresponsible," Gingrich said: "As a historian, I may understand this better than lawyers."

As a historian, I doubt it.

Let's examine Newt's case. He has proposed that judges should be impeached, or entire courts abolished, for issuing unpopular decisions. He cites Thomas Jefferson as precedent: "I’d ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges?"

He's referring to the repeal of the Judiciary Act of 1801, which did in fact abolish recently created district and circuit courts, and thus the judges who sat on those courts were removed from office. But why was that done?

The Judiciary Act had been passed in February 1801 by a lame-duck Federalist Congress after its defeat at the hands of Jefferson's Republicans in the election of 1800. Maybe you remember hearing about the so-called "Midnight Judges" in your American history classes? They were a product of this act.

While the idea of expanding the federal judiciary had been percolating for years, the repudiation of Federalists at the polls gave added urgency to the issue. Congress passed the bill less then three weeks before Jefferson took office, allowing outgoing Federalist President John Adams to put Federalist judges in place before the Republicans took over the Congress and Presidency.  One Federalist reportedly said: “it is as good to the party as an election.”

The Republicans saw the act--with some justification--as a blatant, anti-democratic attempt by the Federalists to maintain power and influence in the third branch despite having been recently trounced in elections to the first two branches. The Republicans therefore repealed the act in 1802, and thus, as Gingrich notes, abolished courts and judges.

But what Gingrich proposes is different. He wants to abolish courts to get rid of specific judges who have issued decisions he does not like. He's quite up front about it. He has stated that the United States Court of Appeals for the Ninth Circuit in particular should be abolished because of its decisions. Jefferson's 1802 act abolished all of the recently created circuit courts because they had been created for partisan reasons. Gingrich wants to target specific courts for making specific rulings which he opposes for partisan reasons.

To be fair to Newt, there also were attempts to similarly politicize the courts during Jefferson's presidency. A federal district court judge in New Hampshire, John Pickering, was impeached by the House and convicted and removed from office by the Senate in 1804. Gordon Wood writes that Pickering was "an alcoholic and probably insane," but his real sin was that he "had been violently partisan" on the bench.

In this instance, impeachment had been used "in effect as a mode of removal, and not as a charge and conviction of high crimes and misdemeanors." (Rather like the Clinton impeachment, I would argue, in which of course Gingrich had a big hand.) That success emboldened the Republicans to up the ante and impeach Federalist Supreme Court Justice Samuel Chase. 

That attempt alarmed John Marshall, who feared what he called the "modern doctrine ... that a Judge giving a legal opinion contrary to the legislature is liable to impeachment." But even the overwhelmingly Republican Senate (they held 25 of 34 seats) failed to produce the two-thirds vote needed to convict Chase, avoiding the result Marshall feared.

The Chase trial precedent was the important one. He had committed no crime. His impeachment was transparently partisan. According to Wood, John Quincy Adams "thought that the failure to convict Chase established that only actual crimes were impeachable offenses." Jefferson himself said: "Impeachment was a farce which will not be tried again."

But Thomas Jefferson never met Newt Gingrich. As an experienced practitioner of political farce, Gingrich certainly has something to teach us. As a historian, not so much.

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