The attack on the federal judiciary by Republican candidates for president has reached a new low and should be denounced by liberals and conservatives alike. In November, Texas Gov. Rick Perry announced that if elected president, his “appointees to the federal bench will not receive a lifetime appointment."Now Newt Gingrich has pledged that if he were elected he would defy Supreme Court rulings with which he disagreed and that judicial review to ensure that the government complies with the Constitution has been “grossly overstated.”
In Thursday’s debate in Iowa and in a media conference call on Saturday, Gingrich declared that courts are forcing us into a constitutional crisis because of their “arrogant overreach.” He repeatedly blasted federal judges for imposing “elitist opinions” on the rest of the country. He has called for impeaching judges, abolishing judgeships and even eliminating courts whose rulings he dislikes.
It is tempting to dismiss all of this as just overblown political rhetoric. Bashing “liberal” judges has been a staple for Republican presidential candidates at least since Richard Nixon ran in 1968 with a campaign against the Warren court. It is ironic that conservatives continue with such attacks even as there is a conservative majority on the Supreme Court and its rulings overall are far more to the liking of conservatives than liberals.
For example, in recent years, the high court has handed George W. Bush the presidency, greatly expanded the rights of gun owners under the 2nd Amendment, limited abortion rights and found in favor of corporations spending unlimited amounts of money in election campaigns. And most of the federal district court and court of appeals judges today were appointed by Republican presidents.
But there is a difference to this year’s political rhetoric about the courts: It is more mean-spirited and it shows a stunning ignorance of the Constitution and American history.
Gingrich, for example, has called federal judges “anti-American” and “grotesquely dictatorial.” And both Gingrich and Rick Santorum have talked about abolishing the U.S. Court of Appeals for the 9th Circuit. Santorum said that he would “sign a bill tomorrow to eliminate the 9th Circuit,” adding, “That court is rogue. It’s a pox on the western part of our country.” I don’t recall prominent candidates for presidential nominations — Democratic or Republican — ever talking in such tones.
Perry has said that he wants to abolish lifetime tenure for federal judges.
However, Article III, Section 1 of the Constitution provides that the justices of the Supreme Court and the lower federal courts have life tenure unless they are impeached and removed from office.
Gingrich also has explicitly raised the possibility of impeaching judges, but Article II, Section 4 of the Constitution allows impeachment only for “treason, bribery, and high crimes and misdemeanors.” It does not allow, and never has been used, to remove judges because their opinions are unpopular. Life tenure for federal judges exists precisely so that they will decide cases based on their best understanding of the Constitution and the law, not to please politicians and voters.
The power of federal courts to declare executive and legislative acts unconstitutional, which Gingrich and other candidates question, has existed throughout American history. In 1803, in Marbury vs. Madison, the court declared that “it is the province and duty of the judicial department to say what the law is.” Rarely in all of American history has any president defied a Supreme Court ruling.
At the very least, these candidates do a disservice to the American people when they are clearly wrong about the Constitution. But beyond their miseducating the public, the substance of their comments is truly frightening. They apparently reject the very notion of judicial independence.
They also seem to reject the idea of the rule of law and the need for judicial review to enforce the Constitution. In Marbury, the Supreme Court also explained that the limits of the Constitution are meaningless unless there is a judiciary to enforce it.
Perhaps these attacks on the federal judiciary are just part of the exceptionally poisonous rhetoric of these divisive times. But it is scary to think of the possibility of a president who largely rejects judicial review, gives no apparent importance to judicial independence, pledges to defy Supreme Court rulings or wants to remove federal judges based on disagreement with their rulings. And yet these are changes that candidate after candidate in the Republican race has been talking about.
Americans across the political spectrum should condemn such rhetoric and remember that an independent judiciary enforcing the Constitution is a crucial feature of American democracy.
Erwin Chemerinsky is dean of the UC Irvine School of Law.