“Gingrich, the anti-conservative”

by Walter Olson on December 22, 2011

George Will blasts candidate Newt Gingrich’s fevered plans for a constitutional showdown between legislature and judiciary [WaPo]. Roger Pilon has more at Cato here and here. Andrew McCarthy and Ted Frank urge us to consider that Gingrich’s overall challenge to judicial activism may, like the curate’s egg, be good in parts.


1 Ron Miller 12.22.11 at 9:40 am

“Where we need to distinguish is between legitimate judicial action—the exercise of the Article III judicial power to protect the citizenry from unconstitutional exercises of government power—and judicial activism, the misuse of the judicial power to act as a superlegislature to create new causes of action or to overrule legislation or constitutional provisions thought unwise.”

Couldn’t we just amend the Constitution so that Ted – and then his heirs – gets to make this call? That would seem to be most in line with the Founding Father’s intent.

2 Darleen Click 12.22.11 at 10:46 am


Nice snarky comment; however, I went and read Frank’s column and cannot figure out what’s the snark about?

He spends the better part of it lambasting (correctly) Gingrich. He does then points out that impeachment of judges is a venue available as a check.

I may not be a lawyer, though I have 14 years within the judicial and law enforcement arena. I was alarmed by Gingrich’s claims (more accurately, by the way Gingrich’s statements were being framed by a hostile media). At the same time, Rule of Law assumes sober, responsible practitioners and when judges do set themselves up as a super-legisture [e.g. Judge decides what CO school funding level should be - regardless of citizen votes] there must be a mechanism to remove them.

3 Ron Miller 12.22.11 at 2:20 pm

Thanks Darlene. I minored in Snarly. I did okay.

I agree with most of what he wrote, actually. But you can’t say we need to distinguish between what is “legitimate” from the courts and what is not. Because the difference is in the eye of the beholder. The judges who make the calls they do – the appellate judges, anyway – don’t say we are now acting as a superlegislature. They say they are following the law (or making the law not covered by statute).

It is an end run around the entire conversation.

4 Darleen Click 12.22.11 at 7:42 pm

Because the difference is in the eye of the beholder.

And? So? Adults do acts of discrimination (in it’s classical use) everyday.

Yes, we can debate the details, but abstaining from making judgments is shirking responsibility with the figleaf of “Who am I to judge?”

Why should judges be immune from being responsible for their own bad rulings?

5 Ron Miller 12.23.11 at 8:52 am

Who is the judge? Judges are the judge. They have their own systems of checks and balances.

I don’t like the current makeup of the Supreme Court. At all. But they are my Supreme Court. THEY decide what is constitutional. Any decision they make of any kind is not subject to legislative review.

I like the Senate a lot more than I like John Roberts. But if they called him before the Senate to explain his opinion lest he be impeached for an extraconstitutional decision, I would go to Washington and protest in the streets (assuming that is was a day like today and not too nippy outside)

You have the exact problem. It is in the eye of the beholder. This is precisely why we can’t have a variable system to decide whether judges are running amok.

6 CarLitGuy 12.23.11 at 12:57 pm

Sounds like the old question of “Who watches the Watchmen?”

7 Darleen Click 12.23.11 at 9:08 pm

Judges are the judge

Let’s pause and look at that again.

Because, like, wow.

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