December 20, 2011

NEWT GINGRICH HAS a love-hate relationship with the Founding Fathers. He loves to cite them but hates to do so in context.

Take, for instance, Mr. Gingrich’s promise that as president he would target certain judges and eliminate entire courts that engage in what he calls liberal judicial activism. The inspiration for the former House speaker and current aspirant for the GOP nomination: Thomas Jefferson’s success in convincing Congress to slash a number of federal judgeships created by political opponents just before Mr. Jefferson took office in 1801.

There is a significant difference between what Mr. Jefferson did two centuries ago and what Mr. Gingrich proposes. Mr. Jefferson was reacting to a last-minute blitz to pack newly expanded courts with appointees of outgoing President John Adams. After taking office, Mr. Jefferson worked with supporters on Capitol Hill to eliminate those seats. He and his congressional allies did not then turn around and recreate these positions to fill them with judges more to their liking.

Yet this is what Mr. Gingrich essentially seeks to do when he suggests eliminating entire courts, such as the liberal-leaning California-based federal appeals court, in order to reconstitute the bench with more conservative jurists. Matthew J. Franck, writing on the conservative National Review Online, aptly criticizes Mr. Gingrich for “cheating” by circumventing the constitutionally mandated impeachment process for removing only those judges who fail to serve “during good behavior.”

There is a reason for life tenure for judges, as is the thrust of Alexander Hamilton’s Federalist No. 78. “The complete independence of the courts of justice is peculiarly essential in a limited Constitution,” Mr. Hamilton explained, noting that “the judiciary is beyond comparison the weakest of the three departments of power.” Unlike the executive and legislative branches, the judiciary “has no influence over either the sword or the purse.”

Judges are among the most consistently transparent of public servants. They issue long and painstaking accounts of why they reach their conclusions. They cite precedent, point to statutory language and explain their interpretation of constitutional provisions. They lay out their arguments for the world to see, dissect and criticize. The vast majority of decisions may be appealed to a higher court.

Like many Americans, Mr. Gingrich may not agree with all court decisions. But he parts company with the majority when he proposes to undermine the rule of law as a bulwark of freedom.