Despite his authoritarian claim that he is free to simply ignore court decisions he disagrees with if elected president, Gingrich’s speech also implicitly recognizes that it is helpful to have your values legitimated by a judicial decision. Unfortunately, however, Gingrich also sees nothing wrong with obtaining the illusion of legitimacy by simply intimidating judges into doing whatever you want them to do:

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The “judge in San Antonio” Gingrich refers to is Judge Fred Biery, a federal district judge who ordered a public high school not to include invocations of prayer in its graduation ceremony before he was reversed on appeal. Biery is a reoccurring villain in Gingrich’s narrative, and Gingrich has a simple remedy for judges like Biery who depart from the far right’s preferred outcomes — scare them into submission through congressional hearings backed by the threat of removal. And if the judge refuses to be cowed, kick them out of office.

This kind of government by intimidation is clearly unconstitutional. The Constitution provides that “[t]he judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office,” a provision which exists entirely to prevent Congress from strong-arming judges by threatening their jobs. While there is some precedent for reducing the size of a judge’s area of jurisdiction for non-punitive reasons — the 5th Circuit was split into two circuits in 1981 after it became too large and unwieldy — an Act of Congress which effectively stripped a court’s judges of all their responsibilities would certainly run afoul of the Constitution.

Gingrich, however, views constitutional law not as a quest to be loyal to the text of the document, but instead as a scavenger hunt to find a single historic example of a president engaging in whatever kind of abhorrent tactic he desires, and then using that single precedent to claim that he may do as he chooses. To justify intimidating judges, he cites Thomas Jefferson. Previously, he cited President Andrew Jackson’s infamous disregard for the Supreme Court and President Franklin Roosevelt’s genuinely abysmal record on civil liberties in war time. Most scholars view these incidents as tragic departures from our Constitution and our moral values. Gingrich views them as an invitation.