Stroock & Stroock's Joel Cohen
Presidential candidates always lobby to the base. Take as a recent example GOP contender Newt Gingrich, who has set his sights on judges and courts that disagree with his idiosyncratic views of America, declaring that he wants to go after those judges whom he sees as "activists," as well as the judiciary in general.
Gingrich proposes that Congress subpoena judges who make questionable or unpopular rulings and demand that they explain themselves, presumably under oath. And if a particular offending judge ignores such a subpoena and tosses it in the trash because of its encroachment on third-branch sovereignty, the executive branch (presumably, President Gingrich) has the U.S. Marshals Service arrest the errant judge to compel his appearance.
What the former Speaker of the House doesn't acknowledge is that congressional intrusion into a judge's decision-making undermines the independence that is essential for the country's judiciary to function properly. Indeed, Gingrich's proposal, which at least one observer has likened to the kind of policy favored by a banana republic, threatens the very foundations of our tripartite democratic system.
It's telling that Gingrich's proposal has been derided by a wide spectrum of observers as "dangerous," "outrageous," "ridiculous" and "totally irresponsible."
These reactions come not only from Democrats, but from prominent conservative thinkers, including two former attorneys general under President George W. Bush -- hardly the sorts who can be characterized as liberal, whiny shrinking violets. Given such comments from the likes of Michael Mukasey and Alberto Gonzales, one can almost hear Gingrich muttering sotto voce: "Et tu, Brute?"
Some weeks have passed since Gingrich's pronouncements on this issue, so one might be tempted to wonder: Why even bother with a rejoinder at this point? Weren't Gingrich's comments mere primary-season rhetoric, given that he likes to play the provocateur on the campaign trail? And how likely is it that he will actually win the GOP presidential nomination? What's more, even if he were ultimately elected to the presidency, wouldn't calmer heads prevail and induce him to discard his extremist ideas about the judiciary?
After all, would any sitting American president or House Speaker allow such a spectacle? Under a scenario of the type Gingrich proposes, we could have seen such constitutional crises over the years as Chief Justice Earl Warren being forced before Congress over his "excesses," including Brown v. Board of Education, Mapp v. Ohio and Miranda v. Arizona. Not to mention Massachusetts Judge W. Arthur Garrity for integrating the Boston public schools over considerable opposition. Or Judge Frank Johnson of Alabama for his civil rights rulings of the 1950s and '60s. Or maybe even New York federal Judge Jed Rakoff over his recent controversial contretemps with the Securities and Exchange Commission. How far would a President Gingrich go in a desire to see life-tenured U.S. Supreme Court justices align with him? Even FDR, who was willing to go to the dark side to tip the Supreme Court in his favor before the famous "switch in time saved nine," ultimately backed down from his court-packing scheme.
But where the rubber meets the road for us, as lawyers, is Gingrich's dismissive manner in rejecting the responses of Mukasey and Gonzales. Of course, given that these two former AGs had been generals in the Bush administration's war on terror, Gingrich may have expected them to be allies in his plan to interdict "overreaching" judges who had been thorns in their sides as well. Gingrich discounts Mukasey's and Gonzales' views on the basis that, unlike them, he's a historian, while they are part of a legal fraternity that not-so-subtly goes about protecting its own place in society.
Here is how Gingrich articulated it during a GOP candidates debate: "... as a historian, I may understand this better than lawyers, and as lawyers those two attorneys general are behaving exactly like law schools, which have overly empowered lawyers to think that they can dictate to the rest of us." Or, to paraphrase Gingrich: "Mukasey and Gonzales are ex-judges, trying to protect their own, whereas I am merely trying to keep the judiciary honest."
Yes, it is true, Gingrich has the wherewithal to trot out historical references to the Federalist Papers; to the great Thomas Jefferson's controversial attempt to remove judges who weren't in lockstep with his views of government; and to Abraham Lincoln's inaugural address, in which he questioned Supreme Court justices' ability to "make law" when they found slavery constitutional in their Dred Scott ruling.
"Historian" Gingrich gains applause from his base for calling the judiciary "grotesquely dictatorial" when he views it as going off the tracks. And it's true that we, as lawyers, may sometimes desperately wish that judges were compelled to publicly explain themselves when they rule in a way that we consider wrong -- meaning, typically, when they rule against us. But unlike some laymen, we also know the importance of judicial independence, and how critical -- even righteous -- is the rule that judges' decisions must be followed unless and until they are overruled by appellate courts or legislation. We cannot allow politicians with cheap applause lines to carry the day by purporting to enforce the separation of powers when they are actually intent on violating the separation of powers, as Gingrich's polemic would de facto accomplish.
Every now and then, the organized bar has the duty to stand up and be counted. The bar knows best that, although some judges occasionally color outside the lines and must be reined back in by the appellate courts or even by outspoken critics and politicians who lambaste them for the error of their ways, our system has worked well since the U.S. Supreme Court's landmark Marbury v. Madison ruling in 1803.
Yes, the bar does tend to be a fraternity that reflexively defends itself against the rest of the world. However, there are also times when we need to form a united defense against a potentially dangerous political agenda.
This is not an offensive against a particular political candidate, but a call to arms against a proposal whose constitutional implications require that the experts stand up. In this instance, we as lawyers are the experts who should lead the national conversation.
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He teaches professional responsibility at Fordham Law School and is the author of "Truth Be Veiled" (Coffeetown Press, 2010). This column is the latest in a series for Law.com. The views expressed are the personal opinions of the author.
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