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.

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Using Inherent Contempt Against Federal Judges

In my prior post on former Speaker Gingrich’s plan to subpoena federal judges to testify before Congress, I assumed that any enforcement of such subpoenas would follow the statutory contempt process set forth in 2 U.S.C. § 194. It crossed my mind to mention an alternative mechanism, but the idea seemed so unlikely (zany, one might even say) that I did not do so.

The aforementioned alternative involves what is known as “inherent contempt,” under which one house of Congress orders its Sergeant at Arms to take a recalcitrant witness into custody and to bring the witness before the bar of the House or Senate to be tried for contempt. This power was exercised on a regular basis until the early 20th Century, but the House has not used it since 1916 and the Senate has not used it since 1935. For more on how inherent contempt works, see here.

This weekend Gingrich suggested in an interview that Congress could use this power to secure the attendance of judges at congressional hearings. This is a surprising suggestion for several reasons. First, the recognized method for challenging inherent contempt is to seek a writ of habeas corpus in federal court. I imagine that it wouldn’t take the subpoenaed judge very long to procure a writ directing his or her release from congressional custody.

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Judicial Accountability Hearings?

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.

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Situation Comity

In her testimony before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts last week, noted Supreme Court advocate Maureen Mahoney urged the panel not to advance pending legislation requiring that Supreme Court proceedings be televised. Among other things, she contended that such legislation would raise “serious constitutional questions” on separation of powers grounds.

I don’t have much to say about the technical constitutional issue. Nothing in constitutional text, history or precedent appears to clearly answer the question of whether the proposed legislation crosses the line between a reasonable regulation of judicial proceedings and an unwarranted infringement on judicial independence. If you want to read an argument that it does, see this recent law review note, but frankly it failed to persuade me.

The more important issue to me, though, is not whether Congress has the constitutional authority to enact this legislation. Rather it is whether Congress ought to abstain from exercising its authority in light of that warm and fuzzy notion of inter-branch harmony known as “comity.”  Here Congress could do worse than to consider a very old Supreme Court case cited in Mahoney’s testimony, Anderson v. Dunn, 19 U.S. 204 (1821).

Anderson speaks to a constitutional branch’s inherent authority to control its physical environs. As Mahoney quotes the Anderson Court, “courts of justice are universally acknowledged to be vested, by the very creation” with the “power to impose silence, respect and decorum, in their presence” and “to preserve themselves and their officers from the approach and insults of pollution.” Id. at 227.

Anderson, however, did not involve a court’s use of this inherent authority. Instead, it involved the exercise of the contempt power by the U.S. House of Representatives, which, the Court found, was similarly entitled to control its proceedings, particularly with respect to matters occurring “within their own walls.”

Whether or not the Court would be similarly receptive to congressional prerogatives today remains to be seen. There are those who think the notion of each branch having special power to control the activities within its own walls is archaic. Yet I think it goes a long way toward explaining the outrage that Members of Congress expressed when the Justice Department unilaterally executed a search warrant in the Rayburn House Office Building. Notwithstanding the debatable technicalities of the Speech or Debate objection, these Members instinctively believed that it was improper for the executive and judicial branches to breach the walls of Congress, as it were, without permission.

The Senate Judiciary Committee would be well advised to keep this in mind before moving forward with cameras in the Supreme Court. Perhaps Mahoney’s testimony might best be summarized as a reminder to both Congress and the Court of this non-constitutional dictum: Do unto others as you would have others do unto you.