A few weeks ago former Speaker and current presidential candidate Newt Gingrich created a minor stir when he suggested that Congress should subpoena federal judges to question them about erroneous decisions. Gingrich told the Value Voters Summit: “[if] judges . . . knew that when they were radically wrong they’d be hauled in front of Congress [it] would immediately have a sobering effect about how much power they have.”
I suspect that many people assumed, as I did, that this remark was just an aside thrown out to win applause from an audience upset and frustrated with many judicial decisions on issues such as abortion, gay rights and the role of religion in public life. It turns out, though, that the Gingrich campaign has a position paper, entitled “Bringing the Courts Back Under the Constitution,” which states “[a] Gingrich administration will use any appropriate executive powers, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in any federal judge(s) whose rulings exhibit a disregard for the Constitution.”
One of the proposals in this paper is for Congress to hold “judicial accountability hearings,” in which “relevant Congressional committees [could] express their displeasure with certain judicial decisions by holding hearings and requiring federal judges [to] come before them to explain their constitutional reasoning . . . and to hear a proper Congressional Constitutional interpretation.” It is not clear from this sentence whether it is the committee or the federal judge who is supposed to hear the “proper Congressional Constitutional interpretation,” though I tend to think the latter.
Andrew Cohen’s response in The Atlantic is undoubtedly reflective of conventional legal thinking with regard to Gingrich’s proposal. Cohen makes three points regarding Gingrich’s idea, which Cohen calls “terrible,” “reckless” and “dangerous.” First, he says that it can’t work. Second, he says that it is a matter of “settled” constitutional law that a federal judge cannot be subpoenaed to testify regarding his or her judicial opinions. Third, he says that it would subvert the independence of the judiciary and replace the rule of law with the rule of demagogues.
Today I am going to focus on Cohen’s first point, which involves the non-normative question of whether Congress could, as a practical matter, actually force a federal judge to appear at a congressional hearing.