The mainstream media is apoplectic that Newt Gingrich would argue that Congress has the power to force federal judges to appear before the legislative body, even indicating that the judges be arrested if necessary.

Let’s distinguish between two issues.  First, should Congress, in general, have the power to enforce Congressional subpoenas on judges?  The answer is yes.  Why should judges be above the law?  To enforce subpoenas, law enforcement has to be used.  The idea of Congress arresting judges, in and of itself, isn’t some loony idea.

The second issue is the more controversial one.  Should Congress force judges to defend their opinions before Congress?  To me, the answer is no.  First, the opinions speak for themselves.  I see little benefit to such a process and a lot of cost.  If I were a judge, I’d just point to my opinion (or concurrence) to explain why I ruled a certain way.  Second, at a minimum, such a process would become a circus and undermine the independence of the judiciary.

Newt Gingrich also has been focused on going after activist judges.  That sounds great, but this often is just terminology used to criticize judges who issue rulings you don’t agree with.  Imagine both political parties going after judges for opinions they didn’t like based on some undefined idea of judicial activism.

I too though am concerned with judicial activism, which I will define informally as judges who issue rulings that are not remotely based on the law (e.g. statutes, case law, Constitution) and instead the rulings are just ad-hoc opinions grounded in personal policy preferences.

Whether or not I agree with his solutions, Newt Gingrich has brought up important questions (directly or indirectly). What is the proper role of the judiciary?  How can judicial activism (as properly defined) be reigned in so that the judiciary isn’t just a policy body but is in fact interpreting the law, not making it?

There are no easy answers.  Some of the following is just brainstorming to at least throw out some ideas.

1) Impeachment

Impeachment is often brought up, but it is almost impossible to impeach a judge, and certainly a judge couldn’t be impeached for a bad opinion.  Federal judges, under Article III of the Constitution, hold office during good behavior.  Their pay also can’t be reduced.

2) Looking in the Mirror

Congress itself creates much of the problems, as do presidents.  Congress drafts poorly constructed statutes.  If it wanted, it could tighten language and even provide direction to courts as to how language should be interpreted.

Presidents need to nominate better judges and Congress needs to do a better job of asking tough questions during the confirmation process.

The confirmation process may be an area where changes could be made.  It is hard to see any legal obstacle for nominated judges to explain their rationale for previous cases or how they would have ruled on past cases.  They could answer about hypothetical cases that could come before a court, but that is problematic in terms of fairness for future litigants.

3) Term Limits

I often have thought about this as an option.  At least it would take judges off the bench who are problematic.  However, it also would take good judges off the bench.  I also don’t see why judges who have fixed terms would issue different opinions if there weren’t life terms.

4) Retention

What if there were a fixed term and the judge could be re-confirmed by Congress for another fixed term?  The problem is this likely makes the judicial process less independent.

There may be ways to minimize this problem though.  What if Congress could only block the re-confirmation by a supermajority?  Of course, if it were a supermajority, would it really have any teeth?

5) Voting

Should judges be voted on in elections instead of appointed?  The knee-jerk reaction would be that this would undermine the independence of the judiciary.  However, I’m not completely convinced by that argument.

I do think though that a federal court handles issues far more likely to be controversial in nature than state courts (just read the NC Supreme Court decisions).  Therefore, while I support elections for state court, I do see more potential problems for federal courts.  Not because of campaign finance issues, but because judges will feel beholden to voters.

There are ways though to minimize the political (or voter) pressure for judges.  Such as having life terms or fixed terms.

The Big Problem

There’s an inherent tension between two important goals.  The first goal is to ensure judges issue opinions within certain parameters (i.e. they interpret the law).  The only way to do this though is to somehow hold them accountable or give them some carrot (such as re-election) to act within those parameters.

The second goal is to preserve an independent judiciary.  It is difficult to have independence when judges are being held accountable or have some motivation beyond the case before them when issuing their rulings.

There may be some solutions around this inherent conflict.  I’ll leave that for another blog post.