Attorneys Generals for the Bush administration calls presidential candidate Newt Gingrich’s position on the courts dangerous.
Michael Mukasey and Alberto Gonzales in a recent television interview on Fox News criticized Gingrich’s idea of just making a law that prevents federal courts from ruling on things Gingrich doesn’t want them to. These are not liberals who might make automatic disparaging remarks about anything the republicans might say. These are two attorneys generals that have hard conservative credentials that were interview on a “news” network that takes hard conservative positions.
At the core of Gingrich’s position on the courts, is the idea that congress can make a law that doesn’t allow federal appellate courts or the Supreme Court to take cases on any issue that he, in agreement with congress, doesn’t want them to rule on. This would be limiting the jurisdiction of the courts that congress establishes.
One of the primary issues is abortion. Gingrich believes that this will stop the federal courts from striking down anti-abortion laws that states enact. It is Gingrich’s plan to return to the states the function of determining abortion rights without fear from the federal government. But, the rights we all enjoy, including abortion, are established in the Constitution by the Bill of Rights. The 14th amendment establishes that those rights fall under the protection of the federal government.
Congress under Article III section 2 does have the power to establish and expand a federal court system. But, Congress has limited power over the jurisdiction of the courts it establishes. Since the Constitution in the first ten amendments states that “Congress shall make no law” that takes away the rights of individuals, congress can’t take away the right of any federal court to make a judgment about federal law that may be in violation of the Bill of Rights.
If congress is given this power, there would be no check to the balance of power that congress or the president may exercise. That isn’t what the framers intended.