The Real Radicalism

[prole]

Republicans Turn Judicial Power Into a Campaign Issue

By ADAM LIPTAK and MICHAEL D. SHEAR

NYT 10/23/11

 

WASHINGTON — Republican presidential candidates are issuing biting and sustained attacks on the federal courts and the role they play in American life, reflecting and stoking skepticism among conservatives about the judiciary.

 

Gov. Rick Perry of Texas favors term limits for Supreme Court justices. Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage. Newt Gingrich, the former House speaker, and former Senator Rick Santorum of Pennsylvania want to abolish the United States Court of Appeals for the Ninth Circuit, calling it a “rogue” court that is “consistently radical.”

 

Criticism of “activist judges” and of particular Supreme Court decisions has long been a staple of political campaigns. But the new attacks, coming from most of the Republican candidates, are raising broader questions about how the legal system might be reshaped if one of them is elected to the White House next year.

 

The complaints are in line with the candidates’ general opposition to federal authority. Like the elected branches of the federal government, they say, the federal judiciary has become too powerful and intrusive.

 

“If you want to send a signal to judges that we are tired of them feeling that these elites in society can dictate to us,” Mr. Santorum said at an event in Ames, Iowa, “then you have to fight back. I will fight back.”

 

Many of the candidates’ proposals concerning the federal courts would, even with Congressional backing, face daunting constitutional obstacles. Yet Congress can limit spending on the courts, short of cutting judges’ salaries, and it may well be able to narrow the jurisdiction of the federal courts in important ways.

 

The candidates’ criticism reflects a growing desire among conservatives for a return to a court system that they say the country’s founders envisioned.

 

The political calculus is similar, too. The rise of the Tea Party in states like Iowa and South Carolina has created a receptive audience for candidates who raise doubts about whether the court system is hindering the causes that these voters believe in.

 

“These threats go far beyond normal campaign season posturing,” said Bert Brandenburg, executive director of Justice at Stake, a research and advocacy group that seeks to protect judicial independence. “They sound populist, but the proposal is to make courts answer to politicians and interest groups.”

 

Mitt Romney, the former governor of Massachusetts, has so far shied away from the far-reaching criticisms of his rivals. At a conservative forum in South Carolina, he dismissed the idea of a Congressional confrontation with the Supreme Court over abortion, saying, “I’m not looking to create a constitutional crisis.”

 

But his rivals have shown no such reluctance in attacking a federal court system in which their side has achieved significant victories.

 

The Supreme Court delivered the presidency to George W. Bush, interpreted the Second Amendment to guarantee an individual right to bear arms and allowed corporations and unions to spend unlimited amounts of money in elections. And many Republicans are looking to the Supreme Court for vindication in the political battle with President Obama over his health care overhaul.

 

The Republican candidates have focused their anger at court rulings on social issues like abortion, same-sex marriage and the role of religion in public life. Those issues hold the potential to fire up the party’s base and to provide crucial support in the primaries.

 

“There’s an even more dramatic overstep on the part of the courts now,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List, a conservative legal advocacy group. “With the grass-roots revolution on the ground and the Tea Party movement, there’s a desire for a return back to first principles.”

 

“I don’t think it’s an anticourt movement,” Ms. Dannenfelser added. “It’s a purifying of the court — trying to return it to where it should be.”

 

Hogan Gidley, a senior adviser to Mr. Santorum, said that on the campaign trail, the courts issue plays well with “those who care about the Constitution and the legal system.” Mr. Gidley added: “They move to the edge of their chairs. They want to know what he’s going to do with the court system. It absolutely resonates.”

 

In attacking the courts, the Republican candidates sometimes seem to hedge their vows to remain faithful to the Constitution. Many of their proposals aimed at curtailing the power of the courts would require the document to be amended.

 

Section 1 of Article III, for instance, confers life tenure on federal judges, saying they “shall hold their offices during good behavior.” But Mr. Perry, in his book “Fed Up!,” wrote approvingly of proposals “to institute term limits on what are now lifetime appointments for federal judges, particularly those on the Supreme Court or the circuit courts, which have so much power.”

 

Whatever the difficulty of achieving that change, it is not without support in legal circles. “Perry’s idea has been advanced by me and numerous other academic critics of the court,” said Paul D. Carrington, a law professor at Duke. “On this point, he is absolutely right.”

 

In his book, Mr. Perry also discussed allowing Congress to override Supreme Court decisions by a two-thirds vote. This too would require a constitutional amendment, assuming that the power of judicial review established in Marbury v. Madison in 1803 continues to be accepted.

 

But the Marbury decision, which gave the Supreme Court the last word in interpreting the Constitution, has its critics. Mr. Gingrich, for instance, told the Values Voter Summit in October that “judicial supremacy is factually wrong, it is morally wrong and it is an affront to the American system of self-government.”

 

Mr. Gingrich, joined by Mrs. Bachmann and Mr. Paul, has called for limiting the federal courts’ ability to hear certain kinds of cases. Whether that would be constitutional is hard to assess.

 

“The question of the extent of Congress’s power to control the jurisdiction of the federal courts is one of the most contested and unsettled in constitutional law,” said Vicki C. Jackson, a law professor at Harvard.

 

Mrs. Bachmann and Mr. Paul have taken an aggressive stance. “We have it within our authority to decide what judges can rule on and what they can’t,” Mrs. Bachmann said in Iowa in April. Mr. Paul has written that “Congress could statutorily remove whole issues like gay marriage from the federal judiciary.”

 

Section 2 of Article III of the Constitution provides that the Supreme Court generally “shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

 

Section 1 of the article suggests that Congress may have even more power over the lower federal courts: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

 

Still, the suggestions from Mr. Gingrich and Mr. Santorum concerning the Court of Appeals for the Ninth Circuit, which hears cases from federal district courts in nine Western states, are particularly bold. In February, Mr. Santorum told a Tea Party group in South Carolina that he would “sign a bill tomorrow to eliminate the Ninth Circuit,” adding: “That court is rogue. It’s a pox on the western part of our country.”

 

Criticism of the Ninth Circuit as too liberal is commonplace, and calls to split it into two or more parts have been floated for decades. But the idea of leaving the western third of the nation without a federal appeals court of its own appears to be a new one.

 

And although the Constitution forbids Congress from cutting federal judges’ pay, Mr. Gingrich has proposed ways that the power of the purse could be used to discipline that court.

 

“Congress can say, ‘All right, in the future, the Ninth Circuit can meet, but it will have no clerks,’ ” Mr. Gingrich told the Values Voter Summit. “ ‘By the way, we aren’t going to pay the electric bill for two years. And since you seem to be rendering justice in the dark, you don’t seem to need your law library, either.’ ”

[ivan]

meh. more appealing to their anti-gov base, big suprise. good luck changing hte constitution cowboys, and uh, have you like, uh, noticed them boys in black've been calling things the way you like it more often than not?

[rob]

Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage.

 

WTF, ron paul? I thought you were all libertarian and shit. Just another fucking ass puppet trying to legislate christian morality. How can anybody respect his position? He's not even consistent.

[kevbone]

Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage.

 

WTF, ron paul? I thought you were all libertarian and shit. Just another fucking ass puppet trying to legislate christian morality. How can anybody respect his position? He's not even consistent.

 

Please tell me how a sitting president can tell any court how to decide anything? I call BS.

[glassgowkiss]

Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage.

 

WTF, ron paul? I thought you were all libertarian and shit. Just another fucking ass puppet trying to legislate christian morality. How can anybody respect his position? He's not even consistent.

 

Please tell me how a sitting president can tell any court how to decide anything? I call BS.

They usually tell things standing, unless it is a TV interview or Oral Orifice speech.

[tvashtarkatena]

Paul wants to end the Federal Student Loan program.

 

That's all anyone really needs to know about that utter tool.

[ivan]

the gubiment needs to be juuuuust small enough to fit into everybody's bedroom

[tvashtarkatena]

Paul and Stepford Chick can be running mates in Heabbin some time. I hear none of this shit really matters up there.

[Sam Furley]

At least you fellers are concentrating on the most important issues. These dingbats in the damn white house ought to consult the tvashs and proles of the world to solve our great national crisis. You fellers are so got damn intelligent it makes the rest of our heads spin!

[prole]

At least you fellers are concentrating on the most important issues. These dingbats in the damn white house ought to consult the tvashs and proles of the world to solve our great national crisis. You fellers are so got damn intelligent it makes the rest of our heads spin!

 

You could do worse...

 

‘Joe the Plumber’ running for Congress

 

After months of speculation and some convincing from Ohio Republicans, Samuel "Joe" Wurzelbacher is set to officially announce his candidacy for the state's ninth congressional district.

 

Wurzelbacher, who became a household name as "Joe the Plumber" after a 2008 confrontation with then-Senator Barack Obama, filed the paperwork with the Federal Election Commission earlier this month and launched an official campaign website.

 

"Maybe we need some regular guys in there," Wurzelbacher told Yahoo News when Ohio Republicans first started whispering about a possible candidacy in August. "That's what I've been doing the past two and a half years, just encouraging regular Americans to run. Tell the liberal media to go to hell, and I don't care what you guys say about me, I'm going to try to fix this country."

 

At this early stage in the race, Wurzelbacher faces an uphill battle against likely contender Democratic Rep. Rep. Marcy Kaptur, who has represented the district since 1983. But because of state redistricting, Kapture must first beat fellow Ohio Democratic Rep. Dennis Kucinich in a primary next year.

 

When asked about Wurzelbacher's candidacy, a spokesman from Kaptur's office pulled no punches.

 

"His name's not Joe, he's not a plumber, and he doesn't live in the new Ninth District," said Kaptur spokesman Steve Fought. "In other words, he's the perfect Republican candidate."

 

In fact, Joseph is Wurzelbacher middle name and although he's not a licensed plumber, he has worked for companies that perform plumbing work. For the past three years, he has spent most of his time traveling and speaking to conservative conferences and tea party rallies.

[kevbone]

Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage.

 

WTF, ron paul? I thought you were all libertarian and shit. Just another fucking ass puppet trying to legislate christian morality. How can anybody respect his position? He's not even consistent.

 

Please tell me how a sitting president can tell any court how to decide anything? I call BS.

They usually tell things standing, unless it is a TV interview or Oral Orifice speech.