Newt Gingrich is seeking to steer the political conversation away from attacks on his past and into more comfortable intellectual territory for him –- challenging the idea of “judicial supremacy” and making the U.S. court system fairer by getting tougher on judges.
As Gingrich stressed Saturday in a conference call with reporters, the issue -– which he has raised in the past – includes a number of potential remedies. He drew attention at Thursday’s GOP debate for calling for abolishing courts, but he softened his tone on the call.
In fact, Gingrich told reporters, he prefers impeaching judges to abolishing courts, but brings up the latter because “it startles people” and gets their attention. Campaign aides also believe the issue will play well with tea party and evangelical voters in Iowa and other key early states.
“This is going to be a controversial conversation, but I believe it’s a conversation where the overwhelming majority of Americans are going to say, when a judge is aggressively anti-American and aggressively anti-free speech and aggressively anti-religious that judge ought to not be on the bench,” Gingrich said.
The subject is indeed controversial. Some legal scholars have said Gingrich’s proposals amount to bullying and, in some cases, are unconstitutional, and accuse the former Speaker of misinterpreting past legal history.
“Political manipulation seems to be a central tenet of Gingrich's present views on the judiciary, and that is where his fidelity to history and facts fall short,” Kevin Burke, president of the American Judges Association and a district judge in Minnesota’s Hennepin County, wrote in an essay in October.
Gingrich said he recognized the issue’s importance about a decade ago after a decision by the 9th Circuit U.S. Court of Appeals that “one nation under God” should be excluded from the Pledge of Allegiance under some circumstances.
He also often cites U.S. District Judge Fred Biery of Texas, who in June issued a ruling in which he blocked prayer at a Texas high school, as an example of the need for greater judicial accountability. The U.S. 5th Circuit Court of Appeals subsequently overturned Biery’s ruling.
“I do think it’s legitimate to consider impeaching [Biery], which I do think will be much easier and less controversial than to try to abolish his court,” Gingrich said. “That requires that you have a really big majority in the House and Senate.”
He also said that such remedies should be considered only in unusual cases.
“I think 99.9% of the time, the courts need to be independent on the application of the law to cases,” he said, “but when they are clearly abusing their power, I think there has to be a method of rebalancing it and that’s what this is all about.”
Vince Haley, a Gingrich adviser on judicial issues who has also occasionally been the candidate’s co-author on books, also stressed that such remedies would not be considered in sharply divided 5-to-4 Supreme Court decisions or cases that could be challenged.
“We’re talking about situations … that would affect a whole people, would be an original question often times, and would be something that is beyond the scope of the power of court,” Haley said. “Newt is talking about a check and balance in extraordinary situations, not in pedestrian situations.”
Gingrich said he wants the judiciary to realize it must be held accountable to the public.
“Part of this is just a signal to send to the legal class in this country – there are real limits to your ability to change America by elitist opinions and violate the beliefs of the American people and violate the tenets of the American contract,” he said.