The GOP Field’s War On The Federal Judiciary

Many of the Republican candidates for President advocate ideas that would restrict the power of the Federal Judiciary.

Doug Mataconis · · 61 comments

One of the little noticed things about the current field of Republican candidates, is the extent to which many of them have said truly bizarre things about the Federal Judiciary:

Most of the Republican presidential candidates want to wipe away lifetime tenure for federal judges, cut the budgets of courts that displease them or allow Congress to override Supreme Court rulings on constitutional issues. Any one of those proposals would significantly undercut the independence and authority of federal judges. Many of the ideas have been advanced before in campaigns to court conservative voters. This time, though, six of the eight GOP candidates are backing some or all of those limits on judges, even though judges appointed by Republican presidents hold a majority on the Supreme Court and throughout the federal system. A group that works for judicial independence says the proposals would make judges “accountable to politicians, not the Constitution.”

Here’s a sampling of some of the proposals that some of the candidates have made:

Former House Speaker Newt Gingrich has been the most outspoken critic of the courts. He would summon judges before Congress to explain their decisions and consider impeaching judges over their rulings. Texas Gov. Rick Perry, in his book “Fed Up,” has called for an end to lifetime tenure for federal judges and referred to the high court as “nine oligarchs in robes.” Minnesota Rep. Michelle Bachmann, in criticizing Iowa judges who ruled same-sex marriage legal in the state, described judges as “black-robed masters.” Bachmann said Congress should prevent the courts from getting involved in the fight over same-sex marriage, among other high-profile social issues. Texas Rep. Ron Paul has advocated cutting the jurisdiction of federal courts and has introduced a bill to that effect in the House. A judge’s violation of Paul’s proposed “We the People Act” would be “an impeachable offense.” Paul told Iowans in March that the country ought to come up with a way for voters to remove federal judges from office, much like several states that have retention elections for state judges At a Tea Party forum in South Carolina in September, Republican candidate Herman Cain joined Bachmann and Gingrich in endorsing legislation that would overturn the high court’s rulings declaring that women have a constitutional right to abortion. The proposal challenges the widely held view that Congress can’t overrule the court’s constitutional holdings. Former Pennsylvania Sen. Rick Santorum has been particularly critical of the San Francisco-based 9th U.S. Circuit Court of Appeals, which has a preponderance of Democratic appointees. “That court is rogue. It’s a pox on the Western part of our country,” Santorum said at a Tea Party event in February. He pledged to sign into law a bill abolishing the appeals court. Gingrich, too, has reserved special criticism for the 9th Circuit, saying that by squeezing its budget, Congress could force the court’s judges to give up their law clerks and even turn off the lights in their courtrooms and offices. At the Values Voters Summit in Washington in early October, Gingrich also objected to last year’s ruling that struck down a ban on gay marriage that was approved by California voters, and an order by a judge in San Antonio barring public prayer at a high school graduation. “Now, the idea of an American judge becoming a dictator of words is so alien to our traditions and such a violation of our Constitution … that that particular judge should be removed from office summarily,” Gingrich said to applause.

There’s nothing new about the political branches of government attempting to restrain the control of the judiciary when it has made rulings that some segment of the country objects to. In the early days of the Republic, the newly ascendent Democratic-Republicans impeached Associate Justice Samuel Chase, mostly because he was a Federalist but also in reaction to the Supreme Court’s assertion of the power of judicial review in Marbury v. Madison. Chase was tried by the Senate and acquitted, but the first battle had been fought. During the Civil War, President Lincoln ignored the ruling of Chief Justice Roger Taney, sitting as a trial judge as was the custom at the time, in Ex Parte Merryman that Lincoln’s suspension of the Writ of Habeus Corpus was unconstitutional. When the Supreme Court repeatedly struck down elements of Franklin Roosevelt’s New Deal, he proposed a Court-packing plan that would have let him put enough friendly judges on the Court to out-vote the conservatives, a plan that even his fellow Democrats refused to sign on to. During the Civil Rights Era, Southern Democrats in Congress attempted to put forward a number of plans that would have prevented Federal Courts from ruling on segregation-related issues in the south, or made those rulings impossible to enforce. Finally, with the advent of cases like Roe v. Wade, the judiciary became a target for the evangelical right and has largely remained so for the past 40 years or so. So, political attacks against the judiciary are as old as the Constitution itself.

The general conservative complaint against the judiciary seems to be that it has done things that restrict the ability of majorities at the state level to enact social legislation like laws against abortion, or the sale of contraceptives, and that it appears to be doing on the verge of doing the same thing when it comes to same-sex marriage. The criticism is cloaked in the language of “original intent” and “judicial restraint,” but the reality is that what they are upset about is the result of the courts’ decisions, not the manner in which they made them.

What’s somewhat ironic about all of this, though, is the manner in which traditional conservative views about the role of government have been turned on their head by those on the right who now criticize the judiciary for flouting the will of the majority. In the Founders Era, and even as recently as the era of William F. Buckley conservatism, majorities were something to be restrained, especially when they sought to pass legislation that sought to restrict the rights of the minority. Constitutional rights were put in place to protect those rights, and the judiciary was created, in part, to protect the minority from the majority. It has not always performed that task correctly, but when it does it doesn’t strike me as valid to say that the Court was wrong because it thwarted majority will. Many times, that is exactly what the Courts are supposed to do.

Some of the proposals that the Republican candidates make might be worthy of consideration. The elimination of life tenure in favor of some kind of set term for Federal Judges is a topic that keeps coming up, for example, but given the difficulties of amending the Constitution one doubts that this will ever be changed. Similarly, the proposals to restrict Federal Court jurisdiction are authorized by the United States Constitution in Article III, Section 2. It is clear, however, that none of the proposals that the Republican candidates are making are being made out of a desire to improve the judiciary. Instead, they are meant to pander to very specific parts of the GOP base who are frustrated by the fact that the Constitution doesn’t let them do what they want to do. In other words, they are made with the intent of giving more power to the majority at the expense of the rights of the minority. That doesn’t sound like limited government to me.

Update: Adam Liptak and Michael Shear also cover this today over at The New York Times.