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.
It is certainly true that Congress has rarely, if ever, subpoenaed a federal judge to be questioned about an opinion. In 1953, a House committee subpoenaed a federal district judge to testify, in response to which the judges of that district informed the committee that “we are unwilling that a Judge of this Court appear before your Committee and testify with respect to any Judicial proceedings.” See Statement of the Judges, 14 FRD 335 (N.D. Ca. 1953). The judges went on to say “[t]he Constitution does not contemplate that such matters be reviewed by the Legislative Branch, but only by the appropriate appellate tribunals. . . . We are certain that you, as legislators, have always appreciated and recognized this, as we know of no instance, in our history where a committee such as yours, has summoned a member of the Federal Judiciary.”
The fact that something has never been done before may be some evidence that it cannot constitutionally be done (see mandate, individual), but it certainly does not prove that it cannot actually be done (id.). And it is clear, as Cohen concedes, that a congressional committee could in fact issue a subpoena to a federal judge if it chose to do so.
So what happens then? Cohen says that the judge can simply go to court and get the subpoena quashed because “[t]he congressional subpoena power, like all subpoena powers, is subservient to the Constitution, which is interpreted, in the final analysis, by the federal judiciary and not by Congress.”
But there is a problem with this. The judge cannot get the subpoena quashed because the Supreme Court has held that federal courts are without power to quash congressional subpoenas, even if those subpoenas violate the Constitution. See Eastland v. U.S. Servicemen’s Fund, 421 U. S. 491 (1975). Perhaps Cohen would have realized this if he had asked whether there were any cases where a federal court had actually quashed a congressional subpoena.
This isn’t too much of a problem for an executive branch official. If the executive branch believes that a congressional subpoena is unconstitutional, it can simply refuse to comply, knowing that it controls the mechanism for prosecution. The congressional committee can cite the official for contempt, and the full House or Senate can vote to hold the official in contempt, but from there the matter goes to the U.S. Attorney, who works for the executive branch. And there the matter will die.
Up until now, no federal judge would have much reason to worry if a congressional committee sought to subpoena him or her to testify about a judicial opinion either. In the unlikely event that the House or Senate referred a contempt citation to the U.S. Attorney, the judge could be sure that there would be no prosecution because (1) the U.S. Attorney would very likely share Cohen’s view on the constitutionality of the subpoena and (2) the executive branch would have no institutional interest in siding with Congress against the judicial branch.
This, however, would not be the case in the hypothetical Gingrich administration. Now the federal judge knows that if there is a contempt citation, the U.S. Attorney will almost certainly bring the matter before a grand jury and seek an indictment.
At this point, of course, there is the possibility of judicial relief. The judge can ask the federal court to dismiss the indictment. But there is still a problem. It is reasonably certain that a federal court would agree that federal judges cannot be required to explain their opinions before Congress, but it is less certain that it would agree that the judge isn’t required to appear in response to the subpoena at all. The Statement of the Judges opinion, for example, says that the subpoenaed judge would appear before the House committee and testify regarding matters other than judicial proceedings.
So a federal judge who receives a congressional subpoena might choose to ignore it, counting on his or her brethren to save the day down the road. But in doing so the judge risks putting the second judge in an awkward position. Normally a witness is required to appear before a congressional committee and assert privilege claims on a question by question basis. The second judge might not want to appear to be bending over backward to favor his or her colleague, exacerbating the claims of conflict of interest that will undoubtedly ensue. At a minimum, the court might let the case go to a jury, hoping that the jury will relieve it from making a politically controversial decision.
The safer course, therefore, would be to appear before the congressional committee and to simply refuse to answer questions relating to the opinion at issue. But in doing so, the subpoenaed judge will suffer something like the indignity of the congressional witness who takes the Fifth, listening to countless committee members explain why his or her opinion is “radically wrong.” Which seems to be the basic purpose of “judicial accountability hearings” in the first place.
In short, the idea of subpoenaing a federal judge to testify before a congressional committee may seem far-fetched. But that’s only because Gingrich isn’t president yet.