Subpoena Judges? Yes, Indeed

(See also: Newt and the Judges)

Speaker Gingrich's campaign position paper, "Bringing the Courts Back Under the Constitution," has serious flaws such as proposing that Congress and the Executive could limit the jurisdiction of the courts to hear cases challenging unconstitutional laws that are enacted by those two branches.

One of the controversial positions in the paper that has drawn criticism is that Congress may subpoena judges to testify about judicial opinions they've written. 

Subpoenaing judges actually may be one of the better ideas in the paper, and could be implemented independent of the other proposals. In fact, there is no provision in the Constitution barring Congress from subpoenaing judges now.

The Speech and Debate Clause in Article I, on the other hand, expressly protects members of Congress who "shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

There must be a reason why the Founders did not see fit to create a similar provision for judges.

Some claim that the "independence of the judiciary" would be violated if Congress could subpoena judges. That's understandable, given how Congress makes a mess of nearly everything it touches.

That is, however, a bit of an exaggerated view of the constitutional separation of powers. The three co-equal, independent branches are supposed to provide checks and balances on each other.

Congress is given authority in Article III to establish courts "inferior" to the Supreme Court, and in Article I, section 8, clause 18 to make all laws that are necessary and proper to carry into execution all other constitutional powers in the United States Government.

James Madison in Federalist 48 wrote that the constitutional structure of the three federal branches of government "does not require that the legislative, executive and judiciary departments should be wholly unconnected with each other. [Madison undertakes] to shew (sic) that unless these departments be so far connected and blended, as to give each a constitutional controul (sic) over the others, the degree of separation which the maxim requires as essential to free government, can never in practice, be duly maintained."

In other words, there is no pure and complete "judicial independence" in the Constitution. Madison's Federalists 47 and 48 explain the limited interdependence underlying checks and balances.

It being established that there is no constitutional barrier to Congress's subpoenaing judges, what about its wisdom?

Judges work in the adversarial judicial system. As lawyers, they received tough questions from judges. As judges, they are the tough questioners.

While subpoenas may ruffle a few pompous judicial feathers, judges should have no anxiety about appearing at congressional hearings, especially if they have acted in good conscience. In fact, such hearings could be quite educational and beneficial for our Republic.

Will some members of Congress make asses of themselves during such hearings? Well, are Barbara Boxer and Chuck Schumer United States Senators?

Judges have difficult jobs. They hear matters affecting individual liberties and many complex issues. Litigants can be obstreperous, angry and nasty. Judges decide fates affecting the fortunes and even the very lives of litigants. Being a judge can and should test the boundaries of human conscience.

But at the end of their difficult days, judges nevertheless get to go home to a nice meal and a soft bed. Meanwhile, the parties to the litigation and even the larger public must live with the consequences of what the judges had decided.

Congress all-too-frequently abuses its subpoena powers for hearings at which private citizens are questioned. Would Congress abuse the process of subpoenaing and questioning judges? Again, are Barbara Boxer and Chuck Schumer United States Senators?

As legal counsel on behalf of a witness at one such abusive congressional hearing, I've read the case law about the boundaries -- or lack thereof -- of congressional hearings.

Congressional hearings are supposed to have a legislative purpose. Judges construing congressional subpoena powers have conceded broad investigative powers to Congress often at the expense of the rights of private citizens.  Abusive congressional hearings, therefore, may be attributed in part to statist judges who preferred the power of Congress over the rights of citizens.

Based on the case law and the constitutional provisions, Congress has as much (if not more) "legislative" authority to subpoena judges as it does to subpoena private citizens.

Judges decide many cases based on laws written by Congress, and Congress may need to tinker or write more laws based on bad or confusing judicial decisions.

Congress should subpoena judges for legislative purposes. The fact that it has not been customary for Congress to subpoena judges may be less of a testament to respect for judicial independence than homage to mutual deference among the ruling class to statism.  All the while, government has grown, and government lawbreaking and abuse of individual rights has become more commonplace. It's time to end this deferential custom.

When President Obama nominated Sonia Sotomayor to the Supreme Court, he said he wanted judges with empathy, which was well received on the left.

I can hardly think of a better way for judges to be empathetic to those who must comply with subpoenas and who face the abuses of government power than to make them respond to a few subpoenas themselves.

Subpoenaing judges could end up being a productive process in many ways.