Standing second to no one in my abhorrence for the "jurisprudence" of activist judges who do little but legislate liberal policy from the bench, it's painful for me to criticize Newt Gingrich for proposing something I'd dearly love to see -- liberal judical legislators hauled before congressional panels to explain their apparently extra-constitutional decisions.
But however emotionally satisfying such visions are, in a country with a constitution establishing three co-equal branches of government, visions of federal marshals arresting federal judges at the behest of a president
just doesn't fly. As a substantive matter, as our constitutional system is understood in 2011, such behavior would provoke a constitutional crisis by its threat to undermine the separation of powers.
What's more, even the realistic threat of such detentions and hearings are enough to chill the independence of the judiciary. I despise some of what the judicial independence produces, but that doesn't mean the principle should be eroded -- an independent judiciary is a cornerstone of a free society. If enough Americans believe the behavior of the judiciary is too extreme, their are political solutions: They can pass a constitutional amendment that would address it, they can support legislators' defunding of certain courts, and they can hold accountable the senators who vote such judges onto the bench (and the presidents who nominate them). Failure to do any of these would indicate that there is insufficient consensus to warrant (or support) the kind of drastic measures Newt Gingrich advocates.
Finally, as a political matter, this little foray into activist judging is another exhibit of what's wrong with a Gingrich candidacy. No doubt it wins a certain amount of press attention and even some supporters in conservative circles. But it's a distraction from what matters most to the American people -- the economy -- and it's simply too flamboyant (and even radical) ever to fly with the mainstream of the country.
What's more, given what Barack Obama has done to the country, people are already terribly stressed out. Americans are looking for someone like Ronald Reagan -- who could make bold proposals and take tough action without adding to the stress and drama that already embroils the country. Carrying on like Gingrich, in a pitch that suggests that you're going to up the national drama level by precipitating a constitutional crisis if you win, isn't politically helpful -- to anyone.