Gingrich calls for a judicial revolution, while David Gregory stumps Bachmann by asking her what she believes
9:35 am Dec. 19, 2011
On Sunday morning, Newt Gingrich wanted to talk about the courts.
"Your folks said to me 'be sure and ask him about judges,' so I know this is something you want to talk about," said "Face the Nation" host Bob Schieffer, near the beginning of a show devoted entirely to an interview with the former House speaker, who is still leading in national presidential polls.
Gingrich, who was "pacing" himself in Washington while his competitors criss-crossed the early states, did his best to drive the news cycle even while he was off the traditional campaign trail, by offering a revisionist history of the judiciary's role that would overturn somewhere between 60 and 200 years of constitutional precedent.
Gingrich's campaign is reported to have realized the issue's potential potency when the candidate brought it up during Thursday night's debate, and on Saturday morning, he held a half-hour conference call with reporters devoted to the same subject.
"This is going to be a controversial conversation," Gingrich said during the call, after lecturing briefly about the history of the court's overreach, which he traces back to Chief Justice Earl Warren, and not Marbury v. Madison, which he said is "grossly overstated in modern law schools."
Gingrich said he got interested in the issue nine years ago, when the Ninth Circuit found "under God" to be an unconstitutional expression of religion in the Pledge of Allegiance. Gingrich has recently threatened to abolish that court—citing Jefferson as precedent—but told reporters on the call that's actually "the last place you want to go."
"Part of this is just to say to the legal class in this country there are limits," he said, adding, "I wanted to set the outer boundary of the conversation because i think it startles people."
The issue could be a good one for Gingrich, allowing him to play the part of Tea Party professor, offering an alternative history of the Constitution that happens to conform more closely with conservative values.
On Sunday morning, he cited two recent cases as examples of judicial overreach: Boumediene v. Bush, in which the Supreme Court ruled that military detainees had a right to habeas corpus, and a federal district court ruling in San Antonio, which ordered officials at a local high school to refrain from using religious words like "amen," "prayer," and "benediction" during its graduation ceremony. The decision was denounced on Fox News and right-leaning blogs as an extreme example of liberal judicial activism.
Gingrich said that decision, issued by Judge Fred Biery, 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 suggested Biery, and judges like him, be subject to subpoenas to explain such decisions to Congress, and that, if necessary, U.S. marshals could be dispatched to retrieve them.
Gingrich has also suggested that, as president, he wouldn't necessarily heed decisions by the Supreme Court that he believed to be mistaken interpretations of the Constitution, citing a few historical examples, like Andrew Jackson and the Bank of the United States, and Abraham Lincoln after Dred Scott.
Schieffer tried to elicit which decisions Gingrich might ignore, but he never quite succeeded. Gingrich said that in a proper system, "it's always two out of three. If the president and the Congress say the court is wrong, in the end the court would lose. If the Congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the Congress loses."
He shrugged off the critics of his interpretation of the balance of powers, which include Michael Mukasey and Alberto Gonzalez, two former attorneys general to George W. Bush.
"I think many lawyers will find this a very frightening idea," he said. "They've had this run of 50 years of pretending judges are supreme, that they can't be challenged."
It's the kind of Gingrich-ian big idea—a radical redefinition of American government plainly stated as a historically faithful bit of common sense—that his rivals are either unwilling or unable to make. His closest challenger in the polls, Mitt Romney, sat for his first Sunday interview in several years on Fox News Sunday, and didn't so much as broach the issue. And Minnesota congresswoman Michele Bachmann, who has styled herself as a Tea Party champion, seemed flustered on "Meet the Press" even as she seemed to want to agree with Gingrich's idea.
Asked by David Gregory how she would make judges more accountable, Bachmann seemed to stumble a bit.
"Well, the best accountability is—we're—if if judges step across the line, there are measures already contained within the Constitution and the Congress needs to utilize those measures in the Constitution," she said.
Pressed by Gregory, Bachmann said it was up to legislatures to overturn bad judicial decisions.
"But that's the case now," said Gregory. "So why are we talking about it?"
"That's what I am talking about," Bachmann said. "Taking advantage of the power that they have and utilizing it."
Gregory moved on to foreign policy.
On Monday morning, a group called Tea Party Patriots announced that Gingrich had won its straw poll, with 31 percent of the vote, after a Sunday "tele-forum" that included four of the candidates. Bachmann finished second, with 28 percent.