Editorial: Criticism of Judiciary is Troubling

Criticism of judiciary is troubling
The Omaha World-Herald  -  EDITORIAL  -  December 22, 2011

Newt Gingrich's campaign-trail attacks on the independence of the federal judiciary offer a troubling view of the Constitution and the distinct roles played by the three branches that share the power of our federal government.  Federal judges should be accountable to the law, not to political winds that can blow from either direction, right or left.  In bidding for the Republican presidential nomination, Gingrich has said he would consider sending U.S. marshals to haul judges, under subpoena, before Congress to explain controversial decisions. He argued that presidents have the right to ignore rulings of "elitist judges" when the decisions conflict with their powers as commander in chief. On a Sunday talk show, he suggested that some laws could be set by agreement of two of the three branches of government. He's not alone in criticizing judges. Texas Gov. Rick Perry said he would push to end lifetime appointments of federal judges. Former Sen. Rick Santorum said he would sign a bill to abolish the "rogue" California-based 9th Circuit Court of Appeals.  The Constitution is specific on the roles of the three branches of government. Congress makes the laws. The executive branch executes the laws. The judicial branch interprets laws and tests their constitutionality. Yes, there is tension among the three branches, but that division of power is a fundamental protection in our democratic society. What are courts in authoritarian regimes but a tool to enforce the state's will? At the same time, the Constitution gives each branch checks and balances over the others. It is the president who nominates federal judges, while the Senate confirms them. The courts check both with judicial review, while Congress has the power to initiate a constitutional amendment.  Some federal judges have overreached and tried to legislate from the bench. But they are granted life terms, barring impeachable conduct, to free them from the influences of the two other branches and popular opinion.  There are those who believe the legislative and executive branches overreached in passing the new health care law. Where did they turn? The federal courts, of course, and that challenge is now before the Supreme Court. It's part of the constant balancing of power.  Gingrich's statements bother many conservatives, including two of former President George W. Bush's attorneys general interviewed by Fox News.  Michael Mukasey, a former federal judge, said some of Gingrich's ideas were "dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle." Alberto Gonzales, a former state supreme court judge, worried about allowing Congress to police court decisions: "I believe that a strong and independent judiciary doesn't mean that the judiciary is above scrutiny, that it is above criticism for the work that it does, but I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges."  Bruce Fein, a conservative attorney and former Reagan administration official, called Gingrich's ideas "more pernicious to liberty than President Franklin Roosevelt's ill-conceived and rebuked court-packing plan."  The winds of politics blow both ways. In a changeable climate, the stable rule of law — the ability to resolve conflicts peaceably — rests on an independent judiciary as much as it does on two other strong and independent branches of government.