Ricochet listeners to Law Talk know that Richard Epstein and I finally agree on something—that Newt Gingrich's attack on the courts is misguided. In this week's National Review (or here at AEI, if you don't have a subscription to NR), I defend some of the tools that Gingrich proposes, but I criticize how he would use them and why. To me, the chief mistake is to try to change the direction of constitutional law by reforming the courts—this concedes that the courts are the final word on the Constitution. Instead, a President should criticize the idea of judicial supremacy—that the courts are the supreme interpreters of the Constitution—and return us to the more balanced approach favored by our Framers and our history. Each branch must interpret the Constitution when carrying out its own duties, and should not give up that authority to any one else. Just as the courts cannot enforce unconstitutional laws, Congress should not pass unconstitutional bills and Presidents should not sign them.
Diagnosing the courts' ills should not divide conservatives. Finding the right cure might. Gingrich proposed a number of possible remedies of varying soundness, including restricting the jurisdiction of federal courts, impeaching ideological judges, eliminating liberal courts such as the U.S. Court of Appeals for the Ninth Circuit (which covers the West Coast), and hauling judges before congressional hearings. The last is simply a bad idea: Gingrich would have federal marshals lay hands on federal judges, under the power of a subpoena, if they refused to show up before Congress. Anyone who recoiled at President Obama's clumsy partisan attack on the Supreme Court over a campaign-finance case during his 2010 State of the Union address should reject the proposal. Such hearings would be useless anyway—any judge worth his salt would merely spend the hearing reading his opinion out loud.
Borrowing from the wisdom of George Costanza, a Republican president should say to the courts: It's not you, it's me. Instead of tinkering with the judiciary, conservatives should seek to restore the role of the presidency by using its unique powers to define the Constitution. A Republican president, for example, could order prosecutors to stop enforcing unconstitutional laws that violate federalism, separation of powers, or individual rights. He could veto unconstitutional laws, instead of leaving the job up to the courts. He could place constitutionality on a par with cost-benefit analysis in issuing regulations or conducting foreign policy. He could nominate only judges who reject judicial supremacy and understand the courts' modest role vis-à-vis the political branches.