Gingrich Targets Judiciary: Legal Profession, Judges in the Crosshairs

At the most recent Republican presidential debate in Sioux City, Iowa on Dec. 15, Fox News anchor Megyn Kelly questioned the candidates regarding federal judges and their judicial decisions. Among the candidates, Newt Gingrich criticized courts' "controversial decisions" regarding various issues. In the heat of the debate, Gingrich boldly stated that "the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people."

Gingrich continued in stating that while teaching a course at the University of George Law School, he warned, "You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary. We have a balance of three branches. We do not have a judicial dictatorship in this country."

Regarding Gingrich's comments at the debate, the Wall Street Journal's Allysia Finley commented that "Mr. Gingrich criticizes judicial activism, but it seems what he really wants to do is expand his own authority to bully and undercut judges who disagree with him. That sounds awfully dictatorial and radically un-American." At first, it would appear that criticism of the judiciary pertains to the increasing political polarization in the US. However, I believe that the issue of courts' decisions goes much deeper than merely the political beliefs of judges and politicians. Where many Americans are aware of the fact that political polarization has implications for court decisions, the rub of criticism of the US court system extends to other arenas including academia, retirement, and the labor market.

Doubling down on his comments at the debate, Gingrich suggested on CBS' "Face the Nation" that "activist" judges could be arrested by US Capitol Police or US Marshals if after making controversial decisions and being subpoenaed, the judges failed to appear before congressional hearings to justify their decisions. Gingrich: "There is a steady encroachment of secularism through the courts to redefine America as a nonreligious country and the encroachment of the courts on the president's commander-in-chief powers, which is enormously dangerous." Though on its face, Gingrich's comment seemed to more or less deal with a balance of the three branches of government, there are other dimensions to the issue.

A key portion of Gingrich's contentions regarding the judiciary included his comment during the debate that "law schools...have overly empowered lawyers to think that they can dictate to the rest of us." Gingrich's comments come at a point in time when not only is the American populace embroiled in a Kulturkampf of divisive political polarization, but also as American society is keeping a keen eye on higher education and law schools. While the vast majority of Americans disapprove of Congress, citizens are beginning to take note of the fact that Congress has historically been dominated by lawyer-politicians. The question appears to be spilling over into the political debate.

Last August, I discussed how law schools are under fire for their reporting on employment numbers for graduates. Some recent law school graduates have gone so far as to file lawsuits against the law schools they attended. In the midst of a poor labor market, high costs for attending law school, high youth unemployment, and an impending higher education bubble, Gingrich's remarks reflect an ominous Zeitgeist for the future of the legal profession in America. Though such remarks touched upon the judiciary, they portend deeper issues in the legal profession as a whole.

One has to wonder what will become of those who graduate law school only to find a dire labor market with little opportunity. Even so, as older attorneys refusing to retire clog up the pipeline of jobs for younger generations, one has to wonder how law school graduates will respond. Could law schools be churning out students who are even hungrier for lawsuits as the labor market dries up and there are few job prospects? Could more law schools find themselves being sued by recent law graduates?

Let us imagine that an individual graduates from college and after working a year or two at Starbucks decides to go to law school in order to find a better career. After graduating from law school, passing the bar, and finding no legal jobs, that same individual finds himself or herself effectively forced back into the service industry...working at Starbucks or Macy's. One has to wonder what implications this predicament would have in terms of not only education, but also investment, labor, and retirement on a societal macroeconomic level. When education, investment, and labor in a society end up appearing as nothing more than a gigantic pyramid scheme, the result is bad economic karma. And as economists know, pyramid schemes are doomed to fail at some point.

To say the least, the crux of the legal field in the US comes down to legitimacy in the public sphere among the citizens. Unlike other countries in the world, the legal profession in the US is not substantively backed by religious dogma or ideologically-basesd authoritarian rule. Though tradition plays a large part in the legal system, the legal profession fundamentally depends on legitimacy and credibility to survive. As American citizens take a keener look at the legal sector, it is likely that the American legal profession will have to respond and change drastically owing to evolving socio-cultural attitudes.

As I have discussed previously, there is a fair chance that the American Bar Association or state bar associations will have to change requirements for those training to be lawyers in the near future in order to respond to growing societal discontent and frustration with the legal profession. Likewise, in the near future, the requirement of attending law school in order to become a licensed attorney may have to be abandoned for the sake of societal credibility and legitimacy. As I have previously written, "As the credibility of legal academia falls, so too falls the credibility of the legal profession."

Even further, the number of law schools and the number of individuals attending law schools will likely decline in coming years. Whereas problems in the legal sector extend to the judiciary, they also extend to higher education. I recently discussed the comments of Marketwatch's Paul B. Farrell regarding changes in the US economy. Farrell, who has a Juris Doctor degree, suggested that global commodity wars will force "a total rethinking of the balance between spending to protect against external enemies and a rapid deterioration of domestic programs: employment, education, health care, [and] retirement." This "total rethinking" will most likely include re-evaluating the legal profession and the process of legal education.

It is likely that a global economic collapse will force nations and individuals to reassess the viability of their respective legal sectors, and the US will be no exception. That being the case, perhaps a reassessment of America's legal profession is long overdue. Given problems in politics where many sitting in Congress are lawyers, Gingrich's remarks may be welcomed by frustrated and discontent Americans. Though Gingrich's comments and the sentiments of other commentators only appear to touch upon the surface of legal issues with judges, the actual wounds most likely go far deeper into the core of our society's ever-evolving Zeitgeist.

At the end of the day, this Zeitgeist portends that one way or another, the legal profession will have to substantially change in the near future.

• Go long on Reed Elsevier ENL, Thomson Reuters Corporation TRI, and the Washington Post Company WPO, which has Kaplan, Inc. as a subsidiary.

• Short the above.