Examining Gingrich’s ‘Radical’ Rhetoric on Courts

National press, Iowa editors weigh in, but in-state reporters are mostly quiet

IOWA — As Newt Gingrich seeks to shore up his standing with Republican voters here in advance of the first-in-the-nation Iowa Caucuses on Jan. 3, in recent weeks he has gone after a new target: the judiciary. In sharp, polarizing language, Gingrich has argued that judges who issue “radical” rulings should be subpoenaed by Congress and face possible impeachment; said he would consider dispatching U.S. marshals to track down judges who refuse to appear; suggested that entire courts could be eliminated; and accused the courts of being “grotesquely dictatorial.”

It’s a line of attack particularly designed to resonate with conservatives in Iowa, where in November 2010 three state Supreme Court justices were ousted after supporting a unanimous decision against a state law banning same-sex marriage. (Gingrich reportedly provided $200,000 to that effort, led by social conservative activists in the state.) But so far, the sharpest reporting about the former U.S. House Speaker’s attacks on the third branch of government has come from national sources, with in-state papers tackling his views on the op-ed and editorial pages but offering little news coverage.

A Jan. 20 article by Associated Press reporter Shannon McCaffrey offered a solid look at Gingrich’s attack on the judiciary, and how it exceeds general Republican skepticism about the courts. While GOP candidates regularly criticize judges, McCaffrey noted that Gingrich’s “ridicule has been, by far, the sharpest and the loudest.” That rhetoric was drawing a mixed reponse from likely Republican voters she spoke to, McCaffrey reported—and sharp rebukes from two former attorneys general who served under George W. Bush:

Michael Mukasey, a former federal judge, said Gingrich’s ideas were “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle.”

Alberto Gonzales was disturbed by the provision that would allow Congress to police judicial decisions. “I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges,” he said.
The AP article came several days after a report by FoxNews.com, in which Mukasey and Gonzales first expressed their concerns. That article devoted more space to Gingrich’s words and presented fuller replies from the former top prosecutors, including this remark from Mukasey about the shaky legal thinking beneath one of Gingrich’s proposals:

“The only basis by which Congress can subpoena people is to consider legislation. To subpoena judges to beat them up about their decisions has only—if they are going to say that has to do with legislation they might propose, that’s completely dishonest,” Mukasey said.

Here in the Hawkeye State, though, campaign reporters have generally bypassed the opportunity to take a harder look at Gingrich’s remarks. In recaps of the Dec. 15 GOP debate, both Jason Clayworth and Jennifer Jacobs of The Des Moines Register flagged Gingrich’s line that “the courts have become grotesquely dictatorial, far too powerful and I think, frankly, arrogant in the misreading of the American people.” But those were quick blog items, and in-state reporters have done little in the way of longer looks at what Gingrich’s judicial agenda would mean for American governance.

That sort of scrutiny has instead come from editorial and op-ed pages, which have generally sided with Gingrich’s critics. The Quad-City Times relayed Gingrich’s views in a straightforward Dec. 20 editorial that dryly noted two of the decisions the former Speaker most frequently complains about were overturned on appeal—which may raise the question of how out-of-control the courts actually are. Cedar Rapids Gazette columnist Todd Dorman took a hard look at Gingrich’s remarks, as have a pair of guest columnists at the Register.

But the sharpest response may be a Dec. 22 unsigned editorial from the Register, which argues that Gingrich’s formerly scholarly arguments about the dangers of judicial overreach have become “bombastic rhetoric bordering on threats.” The editorial notes the important checks on judicial authority that currently exist—truly “lawless” judges can be impeached, Congress can overturn Supreme Court interpretations of statutory law, and the public can nullify even Supreme Court decisions via constitutional amendment—and argues that Gingrich’s verbal bomb-throwing “undermines public understanding of and respect for our federal court system.”

That conclusion is open to debate, of course. But the concern about the consequences of Gingrich’s language on the courts—and the attention it has attracted from both supporters and critics—may itself make a good argument for the newsworthiness of Gingrich’s rhetoric, and the need for a deeper deconstruction by reporters.

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Andrew Duffelmeyer has covered government and politics in Iowa for the Associated Press, the Iowa Independent, and IowaPolitics.com. He grew up in Ames, attended Drake University in Des Moines, and continues to live and work in Iowa's capital city.