Most of the Republican presidential candidates want to wipe away lifetime tenure for federal judges, cut the budgets of courts that displease them or allow Congress to override Supreme Court rulings on constitutional issues.
Any one of those proposals would significantly undercut the independence and authority of federal judges. Many of the ideas have been advanced before in campaigns to court conservative voters.
This time, though, six of the eight GOP candidates are backing some or all of those limits on judges, even though judges appointed by Republican presidents hold a majority on the Supreme Court and throughout the federal system.
A group that works for judicial independence says the proposals would make judges “accountable to politicians, not the Constitution.”
Bert Brandenburg, executive director of the Justice at Stake Campaign, said, “Debates like these could threaten to lead to a new cycle of attempts to politicize the courts.”
Only the former governors in the race, Mitt Romney of Massachusetts and Jon Huntsman of Utah, have not attacked federal judges in their campaigns.
Former House Speaker Newt Gingrich has been the most outspoken critic of the courts. He would summon judges before Congress to explain their decisions and consider impeaching judges over their rulings.
Texas Gov. Rick Perry, in his book “Fed Up,” has called for an end to lifetime tenure for federal judges and referred to the high court as “nine oligarchs in robes.”
Minnesota Rep. Michelle Bachmann, in criticizing Iowa judges who ruled same-sex marriage legal in the state, described judges as “black-robed masters.” Bachmann said Congress should prevent the courts from getting involved in the fight over same-sex marriage, among other high-profile social issues.
Texas Rep. Ron Paul has advocated cutting the jurisdiction of federal courts and has introduced a bill to that effect in the House. A judge’s violation of Paul’s proposed “We the People Act” would be “an impeachable offense.”
Paul told Iowans in March that the country ought to come up with a way for voters to remove federal judges from office, much like several states that have retention elections for state judges
At a Tea Party forum in South Carolina in September, Republican candidate Herman Cain joined Bachmann and Gingrich in endorsing legislation that would overturn the high court’s rulings declaring that women have a constitutional right to abortion. The proposal challenges the widely held view that Congress can’t overrule the court’s constitutional holdings.
Former Pennsylvania Sen. Rick Santorum has been particularly critical of the San Francisco-based 9th U.S. Circuit Court of Appeals, which has a preponderance of Democratic appointees. “That court is rogue. It’s a pox on the Western part of our country,” Santorum said at a Tea Party event in February. He pledged to sign into law a bill abolishing the appeals court.
Gingrich, too, has reserved special criticism for the 9th Circuit, saying that by squeezing its budget, Congress could force the court’s judges to give up their law clerks and even turn off the lights in their courtrooms and offices.
At the Values Voters Summit in Washington in early October, Gingrich also objected to last year’s ruling that struck down a ban on gay marriage that was approved by California voters, and an order by a judge in San Antonio barring public prayer at a high school graduation.
“Now, the idea of an American judge becoming a dictator of words is so alien to our traditions and such a violation of our Constitution ... that that particular judge should be removed from office summarily,” Gingrich said to applause.
Complaints about Supreme Court and lower court rulings have a long and bipartisan history in the United States. President Franklin Roosevelt’s court-packing plan to increase the number of high court justices to 15 from nine grew out of decisions striking down parts of the New Deal.
Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst, said these efforts generally fail. “When push comes to shove, aside from some of this demagoguery on the campaign trail, most Americans are genuinely conservative. That is, they don’t want to undermine the Constitution, they want to abide by it,” Goldman said.
More recently, Republican candidates since Richard Nixon in his 1968 campaign for the presidency have pledged to appoint conservative judges to counteract their perception of a judiciary dominated by liberal activists.
But Republicans have controlled the White House for 20 of the past 30 years, and the party breakdown on the federal bench reflects their edge, 437 appointees to 352 judges appointed by Democratic presidents.
Barry Friedman, a New York University law professor who has written a book about the relationship between public opinion and the high court, said he is puzzled by the effort to take federal courts out of the picture. He said that would increase the influence of more liberal-leaning state courts.
“The wonder of it coming from the Republicans now is that we have what is easily the most conservative Supreme Court in many, many years. This is nothing more than red meat they throw to the conservative base,” Friedman said.
Brandenburg’s not-for-profit group has been critical of both parties on what it sees as efforts to undermine judicial independence. He noted that Congress passed a 2005 law with bipartisan support that sought to pressure federal courts to weigh in on the protracted family fight over keeping Terri Schiavo alive, 15 years after she slipped into what her doctors called a permanent vegetative state.
“That was both parties of Congress running as fast as they could to placate a small number of people who were angry at the courts,” Brandenburg said. In Schiavo’s case, a Florida state judge ordered Schiavo’s feeding tube removed and federal courts refused to step in, even after Congress acted.