Earlier this month, a unanimous panel of 9th Circuit judges held that a 43-foot tall Latin cross cannot constitutionally be displayed on federal land in San Diego. Even though this decision flows naturally from the First Amendment and from Supreme Court decisions forbidding the government from endorsing Christianity — or any other faith — above others, the right’s reaction to this decision has been predictably apoplectic.
Perhaps the most unhinged reaction comes from Newt Gingrich’s Renewing American Leadership, which proclaims that the judges who decided this case must be punished by having their court abolished:
Upon ascending to the presidency, Jefferson then did something remarkable — he and his congressional allies passed the Judicial Act of 1803 that simply abolished the newly-created judgeships and the courts they presided over. He reminded the deposed judges that they had no cases to hear, no building in which to hear them, and no funding for their salaries. The former judges took their case to the Supreme Court, demanding that their positions be restored. Under the plain terms of the Constitution, however, they didn’t have a leg to stand on, and President Jefferson emerged victorious.
Today we face a similar issue: those whose policies are unable to win at the ballot box are seeking to build a stronghold of government power in the courts, without needing to garner a single vote. Just as it did in 1803, the Executive and Legislative branches could take action today and ”reorganize” the Ninth Circuit Court right out of existence!
Gingrich himself made a similar argument last year, when he told the now-floundering CPAC convention that Thomas Jefferson’s “judicial reform act of 1802 abolished 18 out of 35 federal judges, over half…I am more cautious than Jefferson. I would only abolish the Ninth Circuit Court.” This proposal, however, has one big flaw: the United States Constitution.
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.
Moreover, while Gingrich is correct that Jefferson did unconstitutionally abolish several federal judgeships, this precedent is best read as a sign that the framers, while brilliant, were no less capable of letting their passions overcome their ability to follow the Constitution than modern lawmakers occasionally prove to be. Indeed, Jefferson himself came to power in part because of a nationwide backlash against wildly unconstitutional laws passed by his predecessor.
Ultimately, however, the most frightening thing about Gingrich’s proposal isn’t its direct conflict with the Constitution, but the implications of such a violation of the Constitution for a fair and impartial judiciary. The framers protected judges from exactly this kind of intimidation because they knew that judges cannot be trusted to enforce unpopular laws or to extend the law’s protection over unpopular groups if they constantly have to watch their backs. At the end of the day, Gingrich’s proposal is nothing more than another sign of the right’s utter contempt for the Constitution and the law.
(HT: Right Wing Watch)