Republican Debate in Iowa Puts U.S. Judiciary in GOP Crosshairs

on December 16 2011 11:34 AM

When the Republicans at Thursday's GOP debate in Iowa were not heaping criticism on President Barack Obama or each other, the judicial branch received a fair amount of their scorn.

The candidates laid out their plans to address what they deemed a runaway judiciary and, for the governors on stage, their own history in appointing judges.

Former House Speaker Newt Gingrich, who has proposed a plan that runs most afoul of the idea that the judiciary is independent, said his advocacy about the federal bench started in 2002 when a federal court ruled that the mandatory reciting of the Pledge of Allegiance in schools is unconstitutional because of the phrase one nation under God that was inserted during the 1950s.

The decision from the San Francisco-based Ninth Circuit Court of Appeals, which has since reversed itself, showed the need for a way to kick judges off the bench. In 2010, he called for abolishing the Ninth Circuit.

I decided, if you had judges who were so radically anti-American that they thought 'one nation under God' was wrong, they shouldn't be on the court, Gingrich said.

Gingrich's plan would allow for judges to be dragged before Congress under subpoena to explain controversial decisions. He had also proposed impeaching judges or abolishing entire courts.

The moderator noted that two conservative former U.S. attorneys general dismissed the plan, saying it would alter the system of checks and balances.

It alters the balance, because the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people, Gingrich said.

He noted that President Thomas Jefferson in 1802 had abolished some federal courts and President Abraham Lincoln repudiated the Dred Scott decision.

I would suggest to you, actually as a historian, I may understand this better than lawyers, he said in response to criticism of his plan.

Rep. Michele Bachmann of Minnesota agreed with Gingrich that the president and Congress are more powerful than the judiciary. She also said the Founding Fathers / Framers intended for the judiciary to be the least powerful system of government.

The Congress and the president of the United States have failed to take their authority. Because now, we've gotten to the point where we think the final arbitrator of law is the court system. It isn't, Bachmann said.

With the debate taking place in Iowa, Bachmann commended voters who tossed out state Supreme Court justices who ruled in 2009 that a law banning same-sex marriage was unconstitutional.

Rep. Ron Paul, the Texas libertarian, taking a moderate approach to the judiciary, rejected the idea of subpoenaing judges. Removing entire courts would be an affront to the separation of powers that could open a can of worms that would lead to trouble.

The governors on the stage--Rick Perry, Mitt Romney and Jon Huntsman--discussed their experience with the judiciary, calling the appointment of federal judges one of the more important and consequential responsibilities of a president.

It's ... important to note that governors actually some experience appointing judges, said Huntsman, a former governor of Utah, adding that Chief Justice John Roberts and Justice Samuel Alito are his favorites on the Supreme Court. You got to make those hard decisions.

Perry, the Texas governor, said he wants to end lifetime tenure of federal judges, calling them unaccountable legislators that try to dictate to the rest of us.

Romney, a former governor of Massachusetts, rejected criticism that he failed to appoint any Republican's on the state's top bench, saying that his appointees had to pass muster with a panel of Democrats.

He disagreed with his fellow Republicans about the need to devise ways to combat the judiciary, noting that judges can be impeached, Congress can pass new amendments and laws overturning Supreme Court decisions.

We have the ability to rein in excessive judges, Romney said.

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