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More on Gingrich and Judges

Former Speaker Gingrich’s plan to rein in the federal judiciary has met with near-universal criticism, but Curt Levey has gamely offered a qualified defense in the Wall Street Journal. Levey contends that the attacks on Gingrich’s proposal are “overblown.” As an example, he has this to say about Gingrich’s idea of subpoenaing federal judges to testify before Congress:

Congress routinely asks executive officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort.  It’s unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich’s.  Subpoenaing Justices of the Supreme Court, the only court created by the Constitution, is a possible exception.

So let’s take a closer look at this aspect of Gingrich’s plan and see whether it is in fact as radical as critics have suggested.

It is true that federal judges can and do testify before Congress. For example, they testify on administrative and budgetary matters such as staffing and funding, the use of courthouse space, and proposed legislation that would impact the operation of the judiciary. Even Supreme Court Justices occasionally testify before Congress, as this past October when Justices Scalia and Breyer appeared before the Senate Judiciary Committee at a hearing entitled “Considering the Role of Judges Under the Constitution of the United States”, a hearing at which they expressed their views on a wide range of topics, including cameras in the courtroom (they are against them).

The appearances and testimony in these situations have always been voluntary. In many cases the judges have an interest in testifying because they want to influence Congress on the matters in question. In theory, however, one could imagine a situation where Congress would have legitimate grounds to subpoena a federal judge to testify about these types of routine oversight matters. Suppose, for example, Congress was considering judicial pay-raises and learned that there were some judges who disagreed with the Judicial Conference’s official position that salaries should be increased. While considerations of comity might well militate against compelling these judges to appear, I can see no persuasive constitutional objection if Congress chose to subpoena them.

A more difficult situation arises when Congress investigates particular cases of what might be called judicial “maladministration.” These would be instances of judicial conduct that fall outside the core judicial function of deciding cases and controversies. A good example arose about 10 years ago, when Chief Judge Norma Holloway Johnson of the D.C. District Court was alleged to have improperly assigned certain sensitive political cases outside of the normal random assignment system. The allegation came to the attention of a couple of congressional committees, and Chairman Burton of the House Government Reform Committee invited Chief Judge Johnson to appear before the committee to address the matter.

Judge Johnson declined, citing separation of powers concerns and drawing an analogy to judicial decisions that declined, on separation of powers grounds, to scrutinize internal management decisions by Congress. Chairman Burton rejected this analogy, pointing out that while the courts have no general oversight over congressional rules, Congress does have the power to establish judicial rules of procedure, and the concomitant duty to oversee their operation.

Burton’s position was a fairly strong one. Johnson’s alleged misconduct, while not amounting to an impeachable offense, was clearly relevant to the operation of the random assignment system, which was a proper matter for congressional oversight. Moreover, because the committee was investigating an administrative matter, rather than a judicial decision, concerns about any impact on judicial independence were substantially attenuated. Nevertheless, Chairman Burton, hardly a shrinking violet when it came to exercise of the congressional investigative authority, chose not to move forward with subpoenaing Johnson.

As these examples illustrate, there is nothing unusual or improper about inviting federal judges to testify before Congress on a wide variety of matters that impact their official functions. Moreover, there is a plausible argument that federal judges could be subpoenaed to testify on such matters in the appropriate circumstances. As Levey suggests, it would be entirely appropriate for federal judges to be asked, and possibly even compelled, to give their views on significant judicial reform proposals.

It bears repeating, however, that issuances of congressional subpoenas to federal judges for any reason are extremely rare and, as noted by this CRS report, “[i]t does not appear that the House has ever enforced a subpoena against a sitting federal judge.” In a 2006 case, Sullivan v. McDonald, a Connecticut state judge observed that “[i]t appears to the court that there have only been two prior instances, in the history of the country, in which a legislative body has ever attempted to subpoena a judge.” One was the 1953 case that led to the Statement of the Judges cited in my prior post. The other, also in 1953, involved a HUAC subpoena to U.S. Supreme Court Justice Tom C. Clark (who declined to appear on separation of powers grounds).

The Connecticut case is analogous to the Johnson matter in that it involved a state legislative subpoena to a justice of the Connecticut Supreme Court regarding an administrative matter, namely the timing of a decision to release to the public a particular court opinion. The court granted a motion to quash the subpoena, finding that it could not countenance, outside the context of impeachment, “unbridled power in any legislative committee to compel the attendance of sitting judicial officers.” Nevertheless, the court encouraged voluntary compliance with the legislature’s legitimate informational needs, and the justice ultimately testified voluntarily, mooting the case.

More importantly for current purposes, however, Gingrich is not proposing that federal judges be subpoenaed to discuss either administrative matters or questions of judicial reform or reorganization. Instead, he is advocating that judges be subpoenaed for “judicial accountability hearings” in which “congressional committees [would] express their displeasure with certain judicial decisions” and require the federal judges before them to “explain their constitutional reasoning” with regard to those decisions. In short, he is advocating congressional action to pressure federal judges on particular decisions that, in the view of one or more committees, are “radically wrong.”

Up until now, the debate over whether federal judges could be held “accountable” for their judicial decisions has largely centered on impeachment. The late Chief Justice Rehnquist contended that early impeachment cases, most notably the failed impeachment of Samuel Chase, established the “precedent” that “impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties.” In other words, Rehnquist believed that judges could not be impeached simply for their judicial decisions, no matter how “radically wrong” they might be.

Clearly Gingrich disagrees with Rehnquist on this point as his position paper asserts “judges who issue unconstitutional decisions or who otherwise ignore the Constitution and the legitimate powers of the other two other co-equal branches of the federal government can be subjected to impeachment.” And it is certainly true that, as a matter of raw political power, Congress could impeach federal judges for their judicial decisions. However, as Professor Charles Geyh observes in his 2006 book, When Courts & Congress Collide, the existence of such power is not the end of the analysis:

Congress has interpreted the Constitution for itself and has concluded that there are constraints on its authority to characterize various offenses as impeachable. Congress could impeach and remove a judge for simple decision-making errors, but it never has. It could infer a bad motive from the erroneous decision itself, but it never has. It could establish itself as an all-powerful forum for judicial review, but it never has.

What is really fascinating here, though, is that Gingrich is not merely arguing that impeachment could or should be used for judges who issue radically erroneous decisions. The “judicial accountability hearings” he advocates are in addition to any possibility of impeachment. Thus, a House committee could hold a judicial accountability hearing even if there were no impeachment proceedings against the judge and a Senate committee could hold such a hearing even though the judge had not been impeached by the House.

In short, it seems clear that Gingrich is advocating that judges be subpoenaed, not for purposes of gathering information for impeachment or any other legislative purpose, but simply to “express displeasure” with the judge’s decision. The sole objective appears to be to deter judges from issuing decisions that the political branches find abhorrent (as Gingrich explained, it would have a “sobering effect” if judges “knew that when they were radically wrong they’d be hauled in front of Congress”).

As in other areas of constitutional law, there is plenty of room for argument about the proper relationship between Congress and the courts, and about what recourse the political branches have when the courts issue decisions that the former find to be intolerable. But as far as I know, the notion of subpoenaing judges for the sole purpose of badgering them about improper decisions is a wholly new one, which lacks any apparent connection to a function given to Congress under the Constitution.

Perhaps Levey thinks this is ok. Perhaps he thinks that Congress should be able to subpoena federal judges to question them not only about administrative matters or judicial reform proposals, but about their “constitutional reasoning” in particular cases. Perhaps he thinks that calling judges before Congress to influence their judicial opinions is no different than using congressional hearings to lobby or pressure executive branch officials on the wide variety of decisions that they make.

But I seriously doubt it.



  1. Shag from Brookline says:

    Gingrich’s positions regarding the judiciary are political rhetoric/bombast. However, there are legitimate constitutional issues on whether Article III or other parts of the Constitution provide for judicial supremacy over the Executive and Legislative branches at the federal level. Neither judicial review nor such judicial supremacy are specifically provided for in the Constitution. Barry Friedman and Erin Delaney have an interesting article “Becoming Supreme: The Federal Foundation of Judicial Supremacy” in 111 Columbia L.R. No. 6 October 2011. A careful read of the article fails to identify a specific provision in the Constitution for judicial supremacy.

    Specifically with respect to Congress subpoenaing SCOTUS Justices, consider a controversial 5-4 decision. Would all of the Justices be subpoenaed or only those with written opinions? Would written communications be included? A circus atmosphere would surely be created.

    But horizontal judicial supremacy is another matter. See Howard Wasserman’s 12/20/11 post “Losing ideas amid the noise” at PrawfsBlawg and the link there provided to an Eric Posner Slate article.

  2. mstern says:

    Shag- nothing in my post should be taken as an endorsement of “judicial supremacy.” An interesting source on this issue is Donald Morgan’s book, Congress and the Constitution, in which he criticizes the “judicial monopoly theory” and explain how that theory gradually came to supplant the original understanding that each branch was obligated to interpret the Constitution for itself.

  3. Shag from Brookline says:

    Michael, your post made no reference to judicial supremacy but Gingrich has challenged such, thus my reference. I think there should be more discussion about the question (not necessarily at your Blog). If Morgan’s book is available at my library, I’ll check it out, particularly with respect to original understanding, as this relates to my interest in originalism v. non-originalism. I can imagine a runaway Constitutional Convention addressing judicial supremacy. Constitutional Commentary’s Symposium “The United States Constitution (rev. ed.) How would you rewrite the United States Constitution?” Vol. 27, No. 3, Winter 2011, includes several submissions critical of judicial review, which is of course connected to judicial supremacy (although neither is specifically provided for in the Constitution).

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