Despite his authoritarian claim that he is free to simply ignore court decisions he disagrees with if elected president, Gingrich’s speech also implicitly recognizes that it is helpful to have your values legitimated by a judicial decision. Unfortunately, however, Gingrich also sees nothing wrong with obtaining the illusion of legitimacy by simply intimidating judges into doing whatever you want them to do:
[T]he Jeffersonians eliminated 18 out of 35 federal judges — didn’t impeach them, just abolished their offices — told them to go home. Now, I’m not — let me be clear — I am not as bold as Jefferson. I think the judge in San Antonio would be an important initial signal, and I think the 9th Circuit Court should be served notice that it runs the risk of ceasing to exist. […]
[T]here are other steps you could take that — that are far short of wiping out half the judges. One, you can hold hearings. I — I think for the Congress to bring in Judge Biery from San Antonio and say to him, explain to us your rationale…[if judges] knew that when they were radically wrong they’d be hauled in front of Congress would immediately have a sobering effect about how much power they have.
The “judge in San Antonio” Gingrich refers to is Judge Fred Biery, a federal district judge who ordered a public high school not to include invocations of prayer in its graduation ceremony before he was reversed on appeal. Biery is a reoccurring villain in Gingrich’s narrative, and Gingrich has a simple remedy for judges like Biery who depart from the far right’s preferred outcomes — scare them into submission through congressional hearings backed by the threat of removal. And if the judge refuses to be cowed, kick them out of office.
This kind of government by intimidation is clearly unconstitutional. The Constitution provides that “[t]he judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office,” a provision which exists entirely to prevent Congress from strong-arming judges by threatening their jobs. While there is some precedent for reducing the size of a judge’s area of jurisdiction for non-punitive reasons — the 5th Circuit was split into two circuits in 1981 after it became too large and unwieldy — an Act of Congress which effectively stripped a court’s judges of all their responsibilities would certainly run afoul of the Constitution.
Gingrich, however, views constitutional law not as a quest to be loyal to the text of the document, but instead as a scavenger hunt to find a single historic example of a president engaging in whatever kind of abhorrent tactic he desires, and then using that single precedent to claim that he may do as he chooses. To justify intimidating judges, he cites Thomas Jefferson. Previously, he cited President Andrew Jackson’s infamous disregard for the Supreme Court and President Franklin Roosevelt’s genuinely abysmal record on civil liberties in war time. Most scholars view these incidents as tragic departures from our Constitution and our moral values. Gingrich views them as an invitation.
And that is why Gingrich’s speech to the Values Voters Summit rates as one of the scariest speeches in recent political history (scary enough to warrant a four-part series on ThinkProgress). Gingrich embodies America’s constitutional id. He culls through history to find the worst moments in our constitutional history and then he makes them his own. The moral lapses Gingrich relies on to justify his authoritarianism are both uncommon and reviled chapters in American history. Gingrich, however, would revisit those chapters over and over again if given the chance.