'How Could The Chief Justice Rein In His Own Court?': Newt Gingrich Questioned By Russell Fry

2 days ago

At Tuesday's House Judiciary Committee hearing, Rep. Russell Fry (R-SC) questioned former Speaker Newt Gingrich.

Fuel your success with Forbes. Gain unlimited access to premium journalism, including breaking news, groundbreaking in-depth reported stories, daily digests and more. Plus, members get a front-row seat at members-only events with leading thinkers and doers, access to premium video that can help you get ahead, an ad-light experience, early access to select products including NFT drops and more:

https://account.forbes.com/membership/?utm_source=youtube&utm_medium=display&utm_campaign=growth_non-sub_paid_subscribe_ytdescript

Stay Connected
Forbes on Facebook: http://fb.com/forbes
Forbes Video on Twitter: http://www.twitter.com/forbes
Forbes Video on Instagram: http://instagram.com/forbes
More From Forbes: http://forbes.com

Transcript

00:00The gentleman yields back. We now go to the gentleman from South Carolina right down the row.

00:07Thank you, Mr. Chairman. Mr. Larkin, in your testimony you talked about the history of

00:12nationwide injunctions and how this has not always been the practice in the courts up until the 1960s

00:18and we've seen an escalation of nationwide injunctions by district court judges. How

00:25would you characterize the emergence of nationwide injunctions since the 1960s

00:30and its effect on the judiciary? Two things to keep in mind. First, the 1960s saw a rise

00:39in what is called institutional reform litigation, an attempt not just to win a case for a particular

00:45client, a particular John or Jane Doe, but to establish a rule of law that could be used

00:50in the whole category of cases to which it could possibly be applied and then a lot of others as

00:55well. So if you're doing it in a state, for example, you're not going to say that your

01:01client was the only one affected by unconstitutional prison conditions. You're going to

01:05sue the entire State Department of Corrections because what you want is to have one judge

01:10reconfigure the number of people in rooms, how the rooms are laid out, all of that.

01:17And so what you had was you had judges who in some cases were trying to decide with

01:22hellish conditions that would have made Dante blanch and try to figure out how to deal with

01:30that. And so it's not surprising that in some of those cases, I mean there are different prisons

01:36that were in Texas, Mississippi, Louisiana, we know them all, that were absolutely awful. And

01:43a judge under those circumstances is probably going to have to do more

01:48than just say, okay, well you have to give this one client a better room. So what you saw was a

01:55development in this regard of judges expanding the reach of the relief that was being granted.

02:03That was part of it. Part of it was also a change. Just real quickly, just from a time perspective,

02:08do you think that part of this emergence of nationwide injunctions, particularly

02:12against the Trump administration now, I mean the numbers are kind of shocking,

02:20is partly due to partisan nature of some judges on the bench?

02:26Oh, I don't doubt that at all. I mean, if you take a look at the selection process,

02:33presidents tend to look for people who are going to rule in accordance with their views, whether

02:38you're on the right or the left, whether you're a Republican or a Democrat. I worked for Senator

02:43Orrin Hatch when he was the chair of the Judiciary Committee. And, you know, if he was the chair under

02:49Obama, you would see one type of judge being nominated. If he was the chair under George W.

02:56Bush, you'd see a different type of judge being nominated. Different ways of looking at it is

03:02common among people and people become judges. Speaker Gingrich, earlier you talked about

03:06obviously your support of certain congressional actions that would correct or rectify the role

03:12of the courts in these nationwide injunctions, but you also talked a little bit about that the

03:17court can self-police itself. I think with Mr. Kiley, you went into at least one metric on how

03:23that could be done, but what are your thoughts generally on how the Chief Justice, who seemed

03:28to kind of brush aside criticism of the courts and just say, well, you could just go through

03:32the appellate process. How could the Chief Justice rein in his own court? Well, I suspect that

03:40Mr. Larkin actually knows more about this than I do, but my impression is that the Supreme Court

03:46has a rather strong capacity to instruct district courts in a broad range of procedures. And I think

03:54that were the Chief Justice to basically preempt Chairman Issa's bill and say, this is how we're

04:02now going to handle. I mean, the argument in this hearing, as I understand it, is really pretty

04:06narrow. It is that with over 600 district court judges, you cannot have them each thinking

04:14they're an alternative president and therefore there has to be an alternative system. One system

04:19would be to block all nationwide rulings. Another system would be to have it appealed automatically

04:26to the Supreme Court, so a nationwide ruling immediately got a nationwide court looking at it

04:33and recognizing that the appeals process that the Supreme Court Chief Justice referred to

04:39is nonsense when you're talking about executive branch actions, because the length of time it

04:44takes to go through the appeals process is by itself destructive of the capacity to have what

04:51Hamilton called as an active chief executive. He said that the system will only work with an

04:58active chief executive, where you can't be an active chief executive if you have a whole bunch

05:02of Lilliputians tying you up. And this is a classic example of Gulliver and the local

05:09district judge who suddenly has blown themselves up in their own ego and decided I too could be

05:15president and I'll show you because I'm actually a superior president because you have to obey me.

05:20Right. But it's impossible to defend situations. And in that circumstance, I know I'm over time

05:26here briefly, but in that circumstance you have 600 presidents of the United States.

05:32Thank you Mr. Speaker. Thank you. Gentleman from Wisconsin. Yeah, I don't like being here today.

05:38It's a sad state of affairs because you don't like to have to clip the

'How Could The Chief Justice Rein In His Own Court?': Newt Gingrich Questioned By Russell Fry

Category

Transcript

Recommended