Newt Gingrich: This Is What I Think Abraham Lincoln Would Make Of Federal Judges Blocking Presidents

2 days ago

At Tuesday's House Judiciary Committee hearing, Rep. Glenn Grothman (R-WI) questioned former Speaker Newt Gingrich.

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Transcript

00:01Gentleman from Wisconsin.

00:02Yeah, I don't like being here today.

00:04It's a sad state of affairs because you don't like to have to clip the wings of the judiciary

00:12or say that sometimes we don't have to obey a judge's order, which is I think where this

00:17is leading.

00:19But we have a lot of judges who are reaching decisions that are just so completely out

00:24of line and where a lot of these decisions are going to revolve around immigration and

00:31removing people.

00:32And the only reason this has become such a big issue is that we had a president who decided

00:38to the degree which he could, he's not going to enforce the immigration laws of the country.

00:42So after you have completely irresponsible president and completely irresponsible judges,

00:49you wind up in the mess we are today.

00:53Just to clarify things, I'll ask maybe Mr. Larkin, Speaker Gingrich, obviously the country

01:00has been around now under our current constitution for about 230 years, about.

01:08What precedents from the early part of our country indicate that injunctions should not

01:13be beyond parties directly involved in litigation?

01:16In other words, when George, when Abraham Lincoln went to law school, what would he

01:20have thought about these decisions?

01:21Well, of course, Lincoln didn't go to law school.

01:24You're right.

01:25I was going to correct myself.

01:26He read the law.

01:27You're right.

01:28But look, I've been around long enough that I remember talking with Jefferson.

01:33And when I talked to Jefferson, he said, you know, you simply can't have an oligarchy.

01:39And if you allow judges to be the final determinants, you by definition have left the people behind

01:46and established an oligarchy.

01:47I really think if you look at Lincoln, and if you read Fehrenbacher's extraordinarily

01:52detailed book on Dred Scott, Lincoln makes the Dred Scott decision the centerpiece of

01:58the 1858 campaign.

02:01And when Lincoln is very clear about this, think about Lincoln at Gettysburg, when he

02:07says government of the people, by the people, and for the people, he's not only referring

02:13to southern slave owners, he's referring to the court.

02:16And he's saying, by definition, you cannot usurp the right of the elected officials.

02:21Now, if you read the Federalist Papers, it's very clear that the founding fathers thought

02:27the weakest of the three branches would be the judiciary, that it would always be cautious,

02:32because it would always be subject to being overwhelmed by the executive and legislative

02:36together.

02:37And in fact, you all represent the branch the founding fathers most feared, because

02:41they assumed that the people elected by the people would have the greatest power.

02:46So we just have to recognize this.

02:49And we said they were wise.

02:50Yeah.

02:51Did we have good reasons to fear the institution I once led?

02:55Can I just add a short supplement to that?

02:57Sure.

02:58I'd like to say, did this, did this issue ever come up in the 1840s or 1850s or 1860s

03:06or 1870s?

03:07No.

03:08Okay.

03:10And we just assumed it was understood at the time?

03:13The law of equity was party specific.

03:19If, you know, if person one sued person two, the court would remedy whatever harm person

03:27one suffered.

03:30The court would not then go on and enter an injunction that tried to govern society.

03:35That was not the role of the courts.

03:37And the Supreme Court has even made that point more recently.

03:42They've said the responsibility to adjudicate a case of controversy is quite different from

03:48the responsibility to govern the society.

03:51The Lewis versus Casey, which is cited in one of my articles, makes this point.

03:58So it, it was not a component of equity in England, or as you put it in the 1840s, 50s

04:06or 60s.

04:08It happened only much later.

04:09Okay.

04:10Now, we're never supposed to, they tell us you're never supposed to ask the Democrat

04:14witness, but I'll break with, I'll break with my stuff.

04:17Ms. Shaw, what do you think is the strongest example of a case, say, before 1870, in which

04:26a district court tried to come up with a ruling that affected the whole country?

04:33You know, we don't have examples that are of the sort of nationwide injunction that

04:40we know today.

04:41I don't think that's really in question.

04:44There's been an enormous increase.

04:45The scholarly debate about how kind of well, how historically grounded this is, you know,

04:51goes back and forth, but it's either about a century old or a little more.

04:53But I don't think there's much suggestion that there were injunctions of this sort in

04:57the early 19th century.

04:58It would be an indication that under our Constitution, our forefathers never dreamed

05:03we'd have these type of rulings come from somebody who just, it comes from an individual

05:10district.

05:11But we'll ask.

05:12I could tell Speaker Gingrich wanted to get in one more swing here, so we'll let you get

05:15in the swing, and then I'll...

05:18Look, what we have seen over the long sweep of American history is a gradual, steady increase

05:25in the self-esteem and power of lawyers.

05:28Marbury versus Madison is totally misrepresented.

05:31The fact is that Marshall was terrified of Jefferson, knew that the Jeffersonians would

05:36gladly wipe out the court, danced around.

05:40It's not revisited until Dred Scott, and Dred Scott's a disaster.

05:45And so you really have a long period here where judges didn't think they had the power

05:51to define for the country how the country should behave.

05:56And what we're living through, and I'm very sympathetic to the agony on the left, because

06:02this is the...

06:03If you have Jefferson, Jackson, Lincoln, FDR, and Trump, this is the fifth great cycle of

06:10a profound challenge to the existing order.

06:13And obviously, these kind of periods are very painful, and they're very dangerous, and you've

06:18got to work your way through them.

06:21And I think this is one of the examples.

06:22You have a group of people, well-meaning, I believe, but ideologically deeply convinced

06:28that they have the power to overrule the President of the United States.

06:32And now the country has to make a decision.

06:35Do we, in fact, have alternative presidents in the form of district judges or not?

06:40And the country, I think, will overwhelmingly decide that that's impossible.

06:44And so...

06:45But this is a classic historic...

06:47This is what the Congress should be about at its best.

06:50This is a classic historic discussion on both sides of how we retain a balance of power

06:56between the three branches, and I think that's where we are.

Newt Gingrich: This Is What I Think Abraham Lincoln Would Make Of Federal Judges Blocking Presidents

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