A Preview Of What Newt Gingrich Has Planned For The Judiciary
Princeton Professor Kim Lane Scheppele writes about recent developments in Hungary following the overwhelming victory of a center-right political party this Spring, some of the judicial reforms that they implemented may sound familiar:
Under the new constitutional order, the judiciary has taken the largest hit. The Constitutional Court, which once had the responsibility to review nearly all laws for constitutionality, has been killed off in three ways. First, the government expanded the number of judges on the bench and filled the new positions with their own political allies (think: Roosevelt’s court-packing plan). Then, the government restricted the jurisdiction of the court so that it can no longer review any law that has an impact on the budget, like laws pertaining to taxes and austerity programs, unless the law infringes particular listed rights. Finally, the government changed the rules of access to the court so that it will no longer be easily able to review laws in the abstract for their compliance with the constitution. Moreover, individuals can no longer challenge the constitutionality of laws without first going through a lengthy process in the ordinary courts. The old Constitutional Court, which has served as the major check on governmental power in a unicameral parliamentary system, is now functionally dead.
The ordinary judiciary has suffered a similar fate. The government lowered the retirement age for judges from 70 to 62, giving judges only a few months to adjust to their new futures. More than 200 judges will be forced to retire from the bench starting on January 1, including most of the court presidents who assign cases and manage the daily workings of courts. The new law on the judiciary requires that the Supreme Court president have at least five years of Hungarian judicial experience. The current president of the Supreme Court is disqualified because his 17 years of experience as a judge on the European Court of Human Rights do not count. Therefore, he must leave office on January 1 also.
The law on the judiciary also creates a new National Judicial Office with a single person at the helm who has the power to replace the retiring judges and to name future judges. This person also has the power to move any sitting judge to a different court. A new constitutional amendment – to the new constitution! – will permit both the public prosecutor and the head of this new National Judicial Office to choose which judge will hear each case.
The independence of the judiciary is over when a government puts its own judges onto the bench, moves them around at will, and then selects which ones get particular cases to decide.
Of course, the role of the Courts in the United States and Hungary is different, but the principal of what happens when the political branches of government use their power to bend the judiciary to their will remains the same. The polices that Gingrich — and Rick Perry, and Ron Paul to be honest —- have advocated in this particular area are dangerous precisely because they are direct assault on the Separation of Powers. More importantly, though, once the political branches know that they can control the judiciary, even by the mere threat of a subpoena, then the entire idea of the Rule Of Law starts to die.
H/T: Kevin Drum