E ssential to liberty is the separation of powers among the three branches of government: the legislative, the executive and the judicial. As America’s founders established it, too much power exercised by one branch is supposed to be checked by the other two branches.
That balance of powers has been brought up in the Republican presidential campaign by candidate Newt Gingrich.
Speaking Dec. 18 on CBS’s “Face the Nation,” he defended his proposal that “activist” federal judges be forced to appear before Congress to explain their rulings. He said the U.S. Capitol police could be sent to arrest a federal judge if he refused to testify. “Or you instruct the Justice Department to send the U.S. Marshal” to haul the judge before Congress, Gingrich suggested.
The specific incident he raised was an order issued in June by Chief U.S. District Judge Fred Biery in Texas. The judge forbade students in the Medina Valley Independent School District in Texas from using any religious words, specifically, “prayer” and “amen.” The 5th U.S. Circuit Court of Appeals quickly overturned the decision, allowing the students to speak freely.
Gingrich explained his position, “Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word ‘benediction’ and ‘invocation’? Because before you could — because I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it.”
John Eastman, a constitutional law professor at Chapman University School of Law, told us the separation of powers includes checking the excesses taken by one branch. “If the judicial branch is exceeding its authority, it needs to be held accountable,” he said. He added that Congress already subpoenas members of the executive branch to testify on various policy issues.
“The notion that one branch is completely immune from checks and balances — that’s what’s foreign to the Constitution.” The alternative, Eastman said, is “to translate an immense authority to the (unelected) courts and to take it from the people,” as expressed in their elected representatives. He added that the founders intended the impeachment power to be used more than it has been.
A more serious matter is whether the top of a branch of government — the president or the nine U.S. Supreme Court justices — can be subpoenaed in the manner described by Gingrich. Eastman said that what has happened in the case, for example, of a subpoena of information from the president is that Congress and the chief executive haggle over it, until the information is delivered in some form.
We believe that the best way to approach this is, first, for presidents to appoint better judges. Second, the U.S. Senate needs to better vet judges before approving them. Third, if judges act improperly, instead of questioning them first, as Gingrich suggests, the impeachment process should be used. In America’s long history, just 14 judges have been impeached by the House, and just six of those were convicted and removed from office by the Senate.
Judicial independence is not reduced when wayward judges are removed. Rather, it is affirmed because the system’s integrity is bolstered.