More on Newt and the Courts

Lithwick valiantly tries to explain what Newt was up to.    In addition to the fact that he’s envisioning himself as president, I think it’s also a example of how a little history is a dangerous thing.   Newt is very vain about his very modest intellectual achievements, and yes indeedy FDR did try to pack the courts and Jefferson did succeed in getting federal circuit courts abolished with Supreme Court approval.*    But we may want to go a step further and inquire how these plans worked out, and whether established constitutional norms would still permit them.

In addition, of course, I’m sure Lithwick is right that Newt is trying to specifically pander to Iowa voters.    But I think the instincts of his opponents are sounder on this one.   Attacking individual “activist” judges is much more effective than attacking the judiciary as a whole.   But, then, I think a couple years from now we’ll be looking back at the two or three weeks when Gingrch was actually taken seriously as a potential presidential nominee with puzzlement.   (I can’t agree that his collapse is “ahead of schedule.”   The only surprising thing is that the bubble ever inflated in the first place.)

*As we know now from private correspondence, the Marshall Court didn’t uphold the legislation abolishing circuit courts because they actually believed this was constitutional, but because it was that or be impeached.   A good indication of how Marshall felt is that he recused himself.  He didn’t recuse himself in Marbury v. Madison — although his failure to deliver the commission was what triggered the lawsuit.   I should also note, in fairness to the Jeffersonians, that these particular circuit courts also involved taking advantage of an obvious defect in Our Perfect Constitution — allowing a lame duck Congress and president to make major institutional changes after losing an election.    The remedy was problematic but they had legitimate reason to be angry.