By Kathie Obradovich
Newt Gingrich plans on Friday to shed a bit more light on his pledge in the "21st Century Contract with America" to get rid of activist judges.
In a phone interview today, he said he'll release a paper on Friday that delves into what he considers the founding fathers' intention that the president and Congress could oust errant judges. He's also scheduled to speak Friday at the Values Voters summit in Washington, D.C.
"I think it will be one of the more important speeches of the campaign because it is establishing a discussion about the Constitution and the courts in the way it has not been done in probably 100 years," he said.
He said he'll detail an idea that he attributes to Alexander Hamilton, that the president and Congress can simply abolish courts to get rid of judges who trample on American values.
He said he had been thinking about the issue ever since the 9th Circuit Court ruled in 2002 that the words "under God" in the Pledge of Allegiance were unconstitutional. He described the ruling as anti-religion and anti-American.
"The more I thought about it, the more it struck me that the standard conservative idea, which is somehow we'll appoint conservative judges, can't have been what the founding fathers had in mind," he said.
He said Hamilton wrote that the judicial branch would not pick a fight with the executive and legislative branches, because it would lose. He said he'll lay out a series of steps that Congress and the president can take, "and suggest that we do not have to accept radical judges and we do not have to accept radical judgments." He said Americans can use the existing constitutional powers of the two elected branches to correct the court.
He said he envisions Congress being able to call a judge before a congressional hearing to explain the reasoning behind a ruling. "And if it's not satisfactory, the second step would be to abolish his court. Zero it out in the appropriations bill," Gingrich said. He said a new court could be created and a new judge appointed.
"You don't have to go through an impeachment. You can just say this guy shouldn't be a judge," he said.
I asked if that would lead to rulings aimed at appeasing whoever happened to have the political majority in Congress. "Yes," he said. "But at some level you want that," he said. You have to have 60 senators, 218 House members and the president to say a judge is fundamentally wrong, he said, which means there needs to be a broad national consensus. Judges should be sensitive to that, he said.
On the other hand, Gingrich and the entire GOP field have spent a lot of time talking about the need to repeal legislation enacted by a majority of Congress and the president, including Obamacare and Dodd-Frank. Apparently, they don't think there was a broad, national consensus for those bills.
Having a backstop for rulings that truly offend the vast majority of Americans, short of amending the Constitution, may indeed be what the founding fathers envisioned. Having a judiciary whipsawed by the prevailing political winds in Washington almost certainly was not, or we wouldn't have lifetime appointments.
Nevertheless, the topic of reining in an out-of-control judiciary is a known crowd-pleaser in conservative GOP circles. That's particularly true in Iowa, where voters ousted three members of the Iowa Supreme Court last November. Gingrich will have to answer more questions about his policy, but the politics are crystal clear.