Gingrich v. U.S. Judiciary: Ex-House Speaker Takes Court Concerns to Voters

  @DanRivoli on December 19 2011 2:30 PM
Newt Gingrich
Gingrich has vowed to keep fighting, telling reporters that he was the sole candidate capable of unifying conservatives. Reuters

Former House Speaker Newt Gingrich, in his pitch to voters in the run up to the Iowa caucus, continues to paint the judiciary as an institution run amok, citing federal court decisions on segregation and religion as examples of a branch that has waged a fundamental assault on our liberties.

Gingrich, more so than other GOP Republican hopefuls, has been hammering the federal judiciary, calling for courts to be reined in and challenging the U.S. Supreme Court's status as the final arbiter on constitutional matters.

The issue may have traction with conservative Iowa voters Gingrich and his primary rivals are courting before the Jan. 3 caucus, the first electoral test of the presidential campaign. Iowans in 2010 voted out state Supreme Court justices who overturned a law banning same-sex marriage.

Some of the other Republican presidential contenders have followed Gingrich's lead in beating up on the courts; Texas Gov. Rick Perry wants to end life-time appointments for unaccountable legislators.

But Gingrich stands out among the pack of presidential contenders.

In last week's GOP debate in Iowa, Gingrich called for judges to be subpoenaed by Congress following controversial decisions and that he as president would eliminate entire federal courts and judges.

He followed up on Saturday with a conference call with reporters about the judiciary. On Sunday, he discussed his views on the courts during an interview on CBS' Face the Nation.

You have this real problem that since 1958... the Supreme Court was supreme over the president and the Congress, you've had a fundamental assault on our liberties by the courts, you have an increasingly arrogant judiciary Gingrich told CBS' Bob Schieffer. And the question is, is there anything we the American people can do?

Gingrich boasts that he based his ideas on the judiciary on history, contending that the advantage I have is that I'm not a lawyer.

He slammed a recent decision from a federal judge in Texas appointed by President Bill Clinton in 1994 that prohibited school-sponsored prayers and invocations during a high school graduation.

Gingrich: Federal Judge Out-of-Sync With Entire Culture Need Not Be Tolerated

A violation of the order would be considered a contempt of court, posing legal consequences for school officials. But Gingrich interpreted that as an attempt to haul a superintendent in jail for allowing anyone to say a prayer or mention God during the graduation ceremony.

The order, Gingrich said, was such an anti-American dictatorship of speech that there's no reason the American people need to tolerate a federal judge who is that out of sync with an entire culture.

Gingrich blames current views of the federal judiciary's power on a Supreme Court ruling from 1958 that forced Arkansas to desegregate schools.

The decision in the case of Cooper v. Aaron stated that the landmark Brown v. Board of Education ruling that school segregation was an unconstitutional violation of the 14th Amendment's Equal Protection Clause was the law of the land throughout the U.S.

Gingrich has said the Cooper decision articulated and cemented the idea of judicial supremacy. His remarks, however, have been fodder for critics who say he is denouncing the Supreme Court for forcing a state to desegregate schools.

A spokesperson for Gingrich told The Wall Street Journal Sunday that the former speaker believes that states could not defy federal law and court orders, just the executive and legislative branches. The campaign representative also reportedly said Gingrich supports the Brown and Cooper decisions.

The candidate on Sunday also said presidents and Congress should ignore cases the way President Abraham Lincoln dismissed the Dred Scott case holding that blacks were unprotected by the U.S. Constitution and could not be citizens.

Lincoln said very specifically, that's the law of the case that is not the law of the land, Gingrich said Sunday. Nine people cannot create the law of the land or you have eliminated our freedom as a people.

He also said that President Barack Obama, should the Supreme Court kill his health care reform law, could ignore the decision, though Congress could simply refuse to fund the law's implementation.

Gingrich's views on the judiciary were not shared by the candidates running neck-and-neck with him in Iowa. Rep. Ron Paul of Texas said during Thursday's debate that subpoenaing judges to testify before Congress to explain their decisions would be an affront to the separation of power.

Other conservatives have piled on Gingrich's plan as well.

Former Attorney General: Gingrich Plan Totally Irresponsible

President George W. Bush's attorney general, Michael Mukasey, a former federal judge in New York, said Thursday in a Fox News interview that Gingrich's plan is totally irresponsible. Former Attorney General Alberto Gonzalez, who resigned from the Bush administration in amid scandal, said during the Fox interview called the plan a little bit troubling.

Gingrich dismissed their remarks during his Sunday interview, saying that the lawyer class had 50 years to pretend that judges are supreme.

Whether this will help Gingrich connect with voters remains to be seen. The bulk of the GOP primary electorate in Iowa is made up of evangelical Christians who would conceivably be drawn to Gingrich's complaints with the judiciary. He stressed his views on the federal judiciary in an October address at the Value Voters Summit.

His problems with federal courts often concern decisions about publicly-sanctioned praying or religious displays. Gingrich has said he first became interested in the judiciary after the Ninth Circuit Court of Appeals, based in San Francisco, ruled in 2002 that the mandatory reciting of the Pledge of Allegiance in schools is unconstitutional because of the phrase one nation under God inserted during the 1950s.

With the 2010 Iowa Supreme Court elections and debate over same-sex marriage relatively fresh in GOP voters' minds, they may be receptive to Gingrich's positions on the courts.

I do think he has struck a nerve with a lot of conservatives who are frustrated by judges who think they are lawmakers, said Steve Grubbs, a former leader of the Iowa GOP and the former chair of erstwhile candidate Herman Cain's state campaign.

Grubbs said a third of the electorate in Iowa is made up of hardcore evangelical voters who have supported the presidential campaigns of Pat Robertson in 1988 and Gary Bauer in 2000.

That's the vote that has very dramatic concerns about the courts, Grubbs said in an interview with the International Business Times.

Grubbs noted that there is concern among Iowa GOP voters that Gingrich's plan smacks of President Franklin D. Roosevelt's infamous court-packing scheme. Frustrated with the Supreme Court knocking down parts of his New Deal, FDR proposed legislation to Congress increasing the number of justice's on the high court's bench.

With Gingrich suggesting that we simply alter the shape of the courts so that the court system will match his views, I think that a lot of conservatives will be a little uncomfortable with that, Grubbs said. Many are concerned President Obama could do the same thing.

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