Mr. Gingrich’s faulty judgment about the courts

By Editorial Board,
WashPost
Published: December 20

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.”

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