(from WSJ.com, December 20, 2011)
Opinion Journal: Editorial board member Jason Riley interviews David Rivkin
WSJ: I wanted to talk to you about Newt Gingrich’s attacks on the judiciary. He wants to subpoena judges to appear before Congress and explain their decisions, he wants to shut down entirely some appellate courts, and he says the executive branch should be free to ignore judicial decisions. What’s your reaction to this rhetoric?
David Rivkin: Not a good one. Strong medicine, but the cure is worse than the disease. Let me say that judicial activism, defined as judges not construing the statutes in the Constitution in accordance with its original meaning, is a real problem.”
It’s been a problem, certainly going back to the 1980s. It was one of the pivotal points of Reagan’s elections in ‘80 and ’84, [and] a standard tenet of all of the Republican candidates. But the proper cure is slow and steady: appoint good judges, fight to get them through the Senate, and, frankly, wage a public debate about the proper role of judges–delegitimize legislating from the bench.
What Newt is suggesting, unfortunately, is a very bad idea. First of all, it’s utterly unconstitutional. We have three co-equal branches. Having Congress impact the judiciary in this way: abolishing courts, and effectively firing judges, violates a clear constitutional requirement. The judges serve for their entire lives, subject only to impeachment. In fact, the framers, much as I abhor judicial activism, said the notion of all-powerful legislatures is worse. Hamilton actually warned us that it is the legislature that is the most dangerous branch. So one thing that surprised me about Newt is that if you’re running to be a president of these United States, you never seem to think that if Congress can squeeze the judiciary in this way, they can do likewise to the executive.
WSJ: Sure, sure. We should mention, by way of full disclosure that, Mr. Rivkin is an advisor to the Romney campaign, but not here speaking on behalf of the Romney campaign. You mentioned some of this is unconstitutional, but some of it has some precedence. Mr. Gingrich is proposing that Congress eliminate some federal judgeships. Congress has done that in the past, right?
David Rivkin: Congress has reorganized the judiciary on several occasions. But what he’s really talking about is one unique episode in our constitutional history. When Thomas Jefferson became president, Adams and his party– in those days it took longer to get to the inauguration– packed the courts. They passed the Judiciary Act of 1801 and created a bunch of so called “midnight judges.” Here comes Jefferson. They passed the Judiciary Act of 1802 that abolishes, repeals, the Judiciary Act of 1801 and roughly 50 percent of federal judges got fired. In my opinion it was utterly unconstitutional. We had a young federal judiciary, under Chief Justice Marshall, who chose not to engage the two political branches.
Jason, I would bet you anything if that would happen in the 21st century that the judiciary would repeal, declare unconstitutional this kind of statute immediately. So for one thing, no way is it constitutional–it would serve no practical purpose. But, moreover, it’s not useful, if you think about it. If you empower Congress to do this to liberal judges, one of these days Congress would be controlled by the liberals who are going to do that to the conservative judges, so you have an endless tit for tat. So it makes no sense.
WSJ: I want to read a quote from the last debate from Newt, because I think frankly he’s speaking for a lot people when he says things like this. He said, “Judges have been grotesquely dictatorial, far too powerful, and I think, frankly, far too arrogant in their misreading of the American people.” Like I said, I think Newt is speaking for quite a few people when he talks about this judicial supremacy and judicial activism. I mean, you do acknowledge that we do have a problem there. You’re saying there are other ways to address it?
David Rivkin: Proper ways. And, Jason, of course, I acknowledge the problem. I have written on many occasions about problems of individual decisions, problems of individual courts. But Justice Thomas, whom I greatly respect, has made a point a long, long time ago. I heard him make it. Just because you have one constitutional problem, does not justify coming up with an offsetting unconstitutional solution. This is not the way to do it. Judiciary is a co-equal branch. There’s nothing that Congress can do that fundamentally impedes its ability to perform its core functions. The solution, again, as I said earlier, is “slow and steady.” Appoint the right judges, wait for the bad judges to retire, but more importantly, conduct a serious– Ed Meese used to be very good at this. Look, judges are a part of political society. If we have a serious debate about why legislating from the bench is a bad thing, it’s going to impact them.
WSJ: Okay, one last question. This fundamental question of whether the judicial branch should have the last word about the meaning of the Constitution. Newt’s challenging that. Is he wrong?
David Rivkin: He is–it’s a bit simplistic. I would say that each branch can form judgments about what the Constitution means in a sort of epistemological sense. The judiciary has the last say in each particular case and controversy. So, for example, judicial rules against a particular case and controversy. Nothing prevents it from coming back several years later and trying to reargue that, if you can get the Supreme Court majority on your side. So you cannot disobey specific decisions–that would provoke constitutional crisis. But I would not say that the judiciary’s view, long term, about the Constitution necessarily is either the best one or endures. And look, the judiciary changes itself. It comes and goes. Judiciary changes a few, but there are no short cuts. The problem with Newt’s solution, again: real problem, wrong solution.