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Saturday, December 17, 2011

Gingrich's Supreme Court Mistake

Republican presidential candidate Newt Gingrich's comments about ignoring Supreme Court rulings with which he disagrees indicate he is unaware that such a policy would threaten our Founders' concept of the checks and balances among the government's three branches which they considered essential in protecting us from tyranny.

Gingrich, whom as a long-term congressman and former Speaker of the House, will be viewed by an adversarial press corps as being one who ought to know better, said he is "fed up" with the "judicial supremacy" of many activist judges.  However, his actions would expose the American people to future tyranny from a future President or Congress emboldened by the precedent that a President Gingrich would create.

Gingrich ignores the following points:

1.  All judges, whether they overreach their bounds and whether they are "activists" or "strict constitutionalists," are nominated by the President and then reviewed and voted upon by both houses of Congress.  If a judge "goes rogue," the President and Congress bear the blame for picking that judge and, quite frankly, for failing to do the requisite due diligence into that judge's temperament and philosophy.

2.  Judges can be impeached (removed) in extraordinary cases.

3.  Judges' power is actually quite limited since they can only review the laws passed by Congress and approved and enforced by the Executive Branch (this means the President on down through all the divisions of the federal government, i.e., the bureaucracy).  Furthermore, this review power is limited to cases which are brought in our federal courts and which survive all sorts of motions.  Judges do not review all the government's laws, only the laws (or portions of them) which are at issue in lawsuits that they hear.  Moreover, judges rely heavily on the arguments and evidence presented by both sides in the lawsuit.  If a judge seems to make a "wrong" decision, it is reasonable to question how effective one of the sides argued and presented its position, before questioning the judges.

Those who decry and blame "judicial activism" and "activist judges" simply ignore their own ability to elect representatives in Congress to vote on those judges and bring the lawsuits that challenge the laws and seek interpretations and guidance on those same laws.  Congress may be largely impotent, but it is not powerless.  But we don't hear this argument much, since the judiciary (and the legal profession as a whole) make a popular and convenient target for blame.

Many conservatives feel frustrated by an overreaching bureaucracy and many judges whose sensibilities offend those of the voters or of Congress.  But the role of the judiciary is not to "rubber stamp" the actions of the President or Congress; it is its role to "stand athwart" the popular tide, to question and scrutinize the actions of the other two branches of government.

Often, the judiciary has been the one branch of government most responsible for protecting the civil rights of Americans from attack by earlier Presidents and, less often, a complicit Congress.  Next year, it may be the judiciary which rescues the American people from the colossal overreach of ObamaCare's unconstitutional (my opinion) individual mandate. 

Far from being an evil, judges and lawyers advocating for our rights often are our last line of defense against government tyranny, the same type of abuses which led the colonists to seek independence from Great Britain and the Founding Fathers to enact our Constitution.

So tomorrow, go hug a judge!

Eric Dixon is a New York investigative lawyer who handles election law, complex investigations and other serious business, personal and political matters.

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