Democracy has worked in America for over two-hundred years because the federal judiciary has the ability to check legislation for constitutionality and serves as a protection against Congressional and presidential overreach. Perhaps the federal courts do not always side with popular opinion, or the will of the people, but they do provide a measure of continuity based on the Constitution. There is reason to be concerned that democracy is in jeopardy if Republicans seeking the nomination for the presidency ever reach the White House because three of the contenders have made statements that threaten the federal judiciary and by extension, the Constitution and nature of America’s government.
Conservatives have assailed “Liberal activist judges” since Richard Nixon was president, but three of the Republican candidates have gone beyond rhetoric and suggested radical policies that portend disaster for democracy. Statements from Newt Gingrich, Rick Perry, and Rick Santorum should engender outrage and criticism from Democrats and Republicans alike for their dictatorial tendencies and extreme anti-Constitutional nature. The three candidates do a disservice to Americans who may be as ignorant of the Constitution as the Republican, would-be dictators. It is doubtful that any president or serious candidate for president has ever defied a federal judge’s ruling, but Perry, Gingrich, and Santorum are promising a frightening scenario that rejects the notion of judicial independence.
It is not entirely clear if Republicans have a firm grasp on the Constitution or American history, but their mean-spirited ignorance of the country’s main document is shocking, if not pure evil. There are reasons federal judges receive lifetime appointments, and none is so crucial as a judge serving for life is not inclined to make critical decisions based on public opinion that may win, or lose an election or assignment to a federal court. Instead of pleasing voters and politicians, federal judges must base decisions on their understanding of the Constitution whether their opinions are popular or not.
In November, Rick Perry said if he was elected as president, federal judges would not receive lifetime appointments to the bench. Article III, Section 1 of the Constitution clearly states that Supreme Court Justices and lower federal court’s judges are appointed to have lifetime tenure unless they are impeached and removed from office. Either Perry is ignorant of the Constitution or believes that as president he will have dictatorial powers to unilaterally change the Constitution based on his flawed understanding of presidential powers that are clearly defined in the Constitution. Regardless of Perry’s dysfunction, his statements contribute to the miseducation of an already ignorant Republican voting base that may believe, like Perry, that a president can issue edicts that are contrary to the rule of law.
Newt Gingrich claims to be the intelligent candidate, but his toxic rhetoric against the federal judiciary displays ignorance, and worse; a frightening contradiction of the Constitution’s separation of powers. Gingrich said he would defy Supreme Court decisions if he disagreed with them and that the concept of judicial review is “grossly overstated.” Gingrich said the courts are forcing a constitutional crisis with their “arrogant overreach” and called for impeaching judges, abolishing judgeships, and eliminating courts whose rulings he dislikes and disagrees with. Gingrich has accused federal judges of being “anti-American” and “grotesquely dictatorial” for imposing “elitist opinions” based on Liberal bias. What makes Gingrich’s comments ultra-outrageous is the fact that the Supreme Court’s conservative majority have ruled in Republican’s favor consistently starting with their gift of the presidency to George W. Bush. It is also curious that Gingrich’s anti-judicial rhetoric is aimed at judges on the High Court and lower federal courts who were appointed by Republican presidents.
Rick Santorum joined Gingrich in discussing abolishing the Federal Court of Appeals for the 9th Circuit. Santorum said he would “sign a bill tomorrow to eliminate the 9th Circuit,” and added, “That court is rogue. It’s a pox on the western part of our country.” Looking back over recent presidential primaries and nominees, it is evident that no Republican or Democratic presidential aspirant has ever made such overtures like Gingrich, Perry , or Santorum. Gingrich explicitly suggested possible impeachment of judges that is contrary to the Constitution that only allows impeachment for “treason, bribery, and high crimes and misdemeanors;” not if an opinion is unpopular and contrary to the president’s beliefs.
Throughout our nation’s history, the power of federal courts to declare executive and legislative acts unconstitutional has never been questioned and in the Marbury v. Madison decision in 1803, the court declared that, “it is the province and duty of the judicial department to say what the law is;” not the president or Congress. The Republican candidates are not only frightening, but they reject the notion of judicial independence that serves as the last line of defense to keep presidents and Congress honest in following the Constitution.
What these Republicans are suggesting is that a president can defy the rule of law and the judiciary, reject judicial review to enforce the Constitution, and grant supreme power to the president to abolish courts, judges, and decisions they disagree with. The Republicans are not just spouting inflammatory rhetoric, but making threats that will finally, once and for all time, end Democracy in America. The next logical step after abolishing non-compliant courts is eliminating Congress and appointing themselves as supreme ruler for life. It may sound unreal and outrageous, but without a judiciary to decide that laws, executive branch decisions, or presidential edicts are either allowable or not under the Constitution, then the Constitution itself will be null and void and the only rule of law rests with the self-appointed, lifetime serving, supreme leader in the guise of a Republican president.
These are dark days for America that major candidates for the Republican nomination for the presidency have announced in advance that under their administration, the Constitution is worthless and a president is dictator. The prescient question is; where is the media outrage at these statements of extremist conservatives and why are main-stream Republicans silent when the first judges to be abolished and impeached are certainly conservatives? The answer, like a Republican presidency, is just too frightening to contemplate.