GOP sets its sights on the Judiciary...

[73109]

https://www.nytimes.com/2011/10/24/us/politics/republicans-turn-judicial-power-into-a-campaign-issue.html?pagewanted=2&_r=1&hp

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 for 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.”

“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.”

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 their general opposition to federal authority. Like the elected branches of the federal government, they say, the federal judiciary has become too powerful and intrusive.

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 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 reticence 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 sums 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,” she 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. 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 sometime 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. Assuming that the power of judicial review established in Marbury v. Madison in 1803 continues to be accepted, this too would require a constitutional amendment.

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 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 audacious. 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 appears to be a new one.

Mr. Gingrich, seemingly aware that the Constitution forbids Congress from diminishing the compensation of federal judges, proposed other ways to use the power of the purse 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.’ ”

TL;DR: Many GOP candidates (with the exception of Mitt Romney) want to limit the power of the Supreme Court, possibly institute term limits, limit the cases the Supreme Court can see, and try to bring back the judiciary to way the "founding fathers intended" it.

I say: The GOP are digging themselves into a deeper and deeper hole. They're entire entity seems to be based on "what the founding fathers would have wanted" but it seems that that is not always the case, as I clearly remember reading no such thing about term limits. I mean, these people don't want the SC to hear cases on abortion, gay marriage, etc? Why, may I ask? I personally believe that if a constitutional case that has merit comes before a court, the court should see it. I hate to say it, but it really seems religiously based, and if that is the case, I believe it is sad, pathetic, and wrong. We need to get rid of these archaic ideas and roll with the flow. I must also say, thank Ziltoid for Mitt Romney. At least he isn't as bat shit fucking crazy as the rest of them.

[Super Dude]

Wow, KNH was right on the money.

Mitt Romney. At least he isn't as bat shit fucking crazy as the rest of them.

If only.

[73109]

...as bat shit fucking crazy. As.

[Scheavo]

My favorite:

“judicial supremacy is factually wrong, it is morally wrong and it is an affront to the American system of self-government.”

Yes, how dare the LAW be supreme.

All these people seem to be under the misguided notion that laws are obvious, never have any ambiguity, and is easy to apply in all cases. Two people read the same sentence, and come to different conclusions. That's why you have judges, that's why you appoint an arbitrator to settle the debate.

[ClairvoyantCat]

Wow, KNH was right on the money.

Mitt Romney. At least he isn't as bat shit fucking crazy as the rest of them.

If only.

As far as I can tell, he's pretty much the best we've got.  Seems reasonable enough. 

But, as to the article, I can at least understand some of the issues brought up.  I actually like the idea of term limits for Supreme court justices, for one.  I see no particular reason why old people (whose decision-making skills could be understandably fading with age, and are likely out of touch with popular will) appointed in a different time by and for a different government should be kept in.  Especially with the increase in life expectancy, I don't see much practical value to such a system. 

The only problem I currently have with term limits is that there is no current candidate whose choices I would likely support.  But, in theory, I don't think it's a horrible idea.  Not a likely one, of course, but I'm still generally okay with it being brought to the table. 

[Super Dude]

Wow, KNH was right on the money.

Mitt Romney. At least he isn't as bat shit fucking crazy as the rest of them.

If only.

As far as I can tell, he's pretty much the best we've got.  Seems reasonable enough. 

But, as to the article, I can at least understand some of the issues brought up.  I actually like the idea of term limits for Supreme court justices, for one.  I see no particular reason why old people (whose decision-making skills could be understandably fading with age, and are likely out of touch with popular will) appointed in a different time by and for a different government should be kept in.  Especially with the increase in life expectancy, I don't see much practical value to such a system. 

The only problem I currently have with term limits is that there is no current candidate whose choices I would likely support.  But, in theory, I don't think it's a horrible idea.  Not a likely one, of course, but I'm still generally okay with it being brought to the table.

The other trouble is why the Republican candidates support term limits: so that any Republican president can clean house and start anew. Not to say I wouldn't have a problem with it if a Democrat did the same, but their own party's intent is rather clear.

Perhaps appointment by popular vote? I dunno, couldn't think of anything else.

[William Wallace]

I mean, these people don't want the SC to hear cases on abortion, gay marriage, etc? Why, may I ask? I personally believe that if a constitutional case that has merit comes before a court, the court should see it.

Because those are issues that should be decided at the state level. I don't see why that seems so crazy to you. Effectively, that means that Bachmann and Paul are against a federal ban on abortion or gay marriage. Good, yes?

[orcus116]

I actually got the impression they just wanted to keep issues that offend them, such as those, in permanent limbo by not allowing courts to make decisions on them.

[73109]

I mean, these people don't want the SC to hear cases on abortion, gay marriage, etc? Why, may I ask? I personally believe that if a constitutional case that has merit comes before a court, the court should see it.

Because those are issues that should be decided at the state level. I don't see why that seems so crazy to you. Effectively, that means that Bachmann and Paul are against a federal ban on abortion or gay marriage. Good, yes?

No. Things that big need to be decided at a national level. Having two completely separate states with two separate ideologies is analogous to having two separate countries, and that's not good.

I actually got the impression they just wanted to keep issues that offend them, such as those, in permanent limbo by not allowing courts to make decisions on them.

That too.

[El Barto]

There's a lot of idiocy going on.  For one thing,  the Republicans shouldn't be adopting policies that are impossible, unconstitutional, and basically batshit insane.  The Democrats are using the SCOTUS as a crucial cause, and it's a good one for them;  it's the only reason I can think of to vote for a nimrod like Obama.  The GOP should be doing the same thing.  Instead of making up dipshit ideas, they should just be rallying behind Ginsburg and possibly Kennedy's eventual retirements.  Stupid strategy.

Secondly,  it reflects very poorly on them.  Their basic objection all revolves around Marbury,  and the reason Marbury is so important is to prevent people from doing exactly what they all claim they'll do. 

I will say that term limits don't trouble me at all.  I'm not worried about senility or being out of touch,  but given the partisan nature of what the court's become,  I'd really like to see it getting mixed up a bit more than it does. 

All in all,  it just comes down to the same old bullshit.  Judges are only good when they support your side, and when they think you're wrong,  they're evil,  corrupt,  crooked,  whatever.  It would appear that there's no such thing as a valid and judicial interpretation of anything that the average Joe disagrees with. 

[William Wallace]

I mean, these people don't want the SC to hear cases on abortion, gay marriage, etc? Why, may I ask? I personally believe that if a constitutional case that has merit comes before a court, the court should see it.

Because those are issues that should be decided at the state level. I don't see why that seems so crazy to you. Effectively, that means that Bachmann and Paul are against a federal ban on abortion or gay marriage. Good, yes?

No. Things that big need to be decided at a national level. Having two completely separate states with two separate ideologies is analogous to having two separate countries, and that's not good.

Funny story: That was part of the deal when we became a country. And if you don't like a state's policy, what's wrong with moving to another one?

[73109]

I completely understand that was the policy, however, unlike most of the GOP, I have no problem with saying that the founding fathers might have gotten some things wrong, and if they didn't, the ideology is most certainly outdated. I'm in favor of ripping up the Constitution and starting anew, but it seems that that has about as much chance of happening as the GOP has of doing whatever the hell it is they want to do.

[Super Dude]

I completely understand that was the policy, however, unlike most of the GOP, I have no problem with saying that the founding fathers might have gotten some things wrong, and if they didn't, the ideology is most certainly outdated. I'm in favor of ripping up the Constitution and starting anew, but it seems that that has about as much chance of happening as the GOP has of doing whatever the hell it is they want to do.

This. The Founding Fathers were not omniscient or all-seeing.

[antigoon]

I shudder to think of what would happen if a new constitution was made in this political climate.

[Super Dude]

Why? Was the original formulated in such a time of unity and tranquility?

[73109]

No, but the most of the founding fathers had some semblance of unity. I agree that I would not want a new Constitution drawn up now, but that doesn't mean that the one that is still in use isn't a piece of garbage either.

[Super Dude]

No, but the most of the founding fathers had some semblance of unity. I agree that I would not want a new Constitution drawn up now, but that doesn't mean that the one that is still in use isn't a piece of garbage either.

I guess, but then it doesn't show in the Constitution's failure to deal with the problem of co-existing with Indians and with that of slavery. I was actually reading an interesting book over the summer about just that problem, which the book characterized as a failure borne out of the lack of unity and to some degree concensus.

For those interested: https://www.amazon.com/American-Creation-Triumphs-Tragedies-Founding/dp/030726369X

[73109]

I agree. However, they were much more of a cohesive unit back then. Today, if you got Congress in to draw up a new Constitution...it will take longer for them to do it than however long it would take me to...I can't even find something funny enough to finish the joke.

[Super Dude]

Well on a more serious note, remember that the framers of the Constitution wanted it to be a long and arduous process, even and especially in such an event.

[73109]

They got what they wanted...and then some.

[William Wallace]

I'm in favor of ripping up the Constitution and starting anew...

The process is about complete. Really, it's been reinterpreted to a point that negates the purpose of having it in the first place.

[jsem]

I mean, these people don't want the SC to hear cases on abortion, gay marriage, etc? Why, may I ask? I personally believe that if a constitutional case that has merit comes before a court, the court should see it.

Because those are issues that should be decided at the state level. I don't see why that seems so crazy to you. Effectively, that means that Bachmann and Paul are against a federal ban on abortion or gay marriage. Good, yes?

Except that Paul voted for the Partial-Birth Abortion banning, which was federal. Paul loses his principles about big government when it comes to abortion. He'd just say though, that if you can't protect life you can't protect liberty.

[William Wallace]

I mean, these people don't want the SC to hear cases on abortion, gay marriage, etc? Why, may I ask? I personally believe that if a constitutional case that has merit comes before a court, the court should see it.

Because those are issues that should be decided at the state level. I don't see why that seems so crazy to you. Effectively, that means that Bachmann and Paul are against a federal ban on abortion or gay marriage. Good, yes?

Except that Paul voted for the Partial-Birth Abortion banning, which was federal. Paul loses his principles about big government when it comes to abortion. He'd just say though, that if you can't protect life you can't protect liberty.

Interesting. I didn't know that. I still think he's right to push for state's rights, even if he does it inconsistently.

[Perpetual Change]

Nothing like crossing state borders to get an abortion!

I'm in favor of ripping up the Constitution and starting anew...

The process is about complete. Really, it's been reinterpreted to a point that negates the purpose of having it in the first place.

I'd say that was destined to happen, because the Constitution is a deeply flawed document that simply does not adequately equip the nation to handle many issues of the day. Futhermore, the process for amending it is painfully slow, something our nation has proven to be increasingly impossible.

That's where I'd say I differ with most of you libertarian minded guys. You see how the whole system's failed to sustain itself, yet you continue to uphold the Constitutional Republican up as some perfect way to govern handed down by the capital-f Founders. Can't we think of something better?

[William Wallace]

Nothing like crossing state borders to get an abortion!

I'm in favor of ripping up the Constitution and starting anew...

The process is about complete. Really, it's been reinterpreted to a point that negates the purpose of having it in the first place.

I'd say that was destined to happen, because the Constitution is a deeply flawed document that simply does not adequately equip the nation to handle many issues of the day. Futhermore, the process for amending it is painfully slow, something our nation has proven to be increasingly impossible.

You know this, but both were intended that way. They didn't want a federal government to handle most issues, same goes for amending the Constitution. It was supposed to be difficult. But, as I said, Article V really doesn't matter. Congress does whatever it wants, provided people don't become irritated enough to stop them.

That's where I'd say I differ with most of you libertarian minded guys. You see how the whole system's failed to sustain itself, yet you continue to uphold the Constitutional Republican up as some perfect way to govern handed down by the capital-f Founders. Can't we think of something better?

We'll never agree on "better." So I'm satisfied not to have that debate. But I don't think it's Republicanism that broke the system.

[El Barto]

Nothing like crossing state borders to get an abortion!

I'm in favor of ripping up the Constitution and starting anew...

The process is about complete. Really, it's been reinterpreted to a point that negates the purpose of having it in the first place.

I'd say that was destined to happen, because the Constitution is a deeply flawed document that simply does not adequately equip the nation to handle many issues of the day. Futhermore, the process for amending it is painfully slow, something our nation has proven to be increasingly impossible.

You know this, but both were intended that way. They didn't want a federal government to handle most issues, same goes for amending the Constitution. It was supposed to be difficult. But, as I said, Article V really doesn't matter. Congress does whatever it wants, provided people don't become irritated enough to stop them.

Or the courts step in and say "no, that's bullshit,"   which is of course exactly what the Republicans are wanting to put a stop to.

[Scheavo]

Or the people step in and say, no, that's bullshit.

[kirksnosehair]

Let me be very clear about my opinion of Mitt Romney:  I think he would be bad for this country, generally speaking.

With that said, however, while he was Governor here in MA he DID show an honest desire to reach across the aisle and compromise with Democrats to get things done.  No matter how badly he wants the MA Affordable Health Care Act to go away, it was a pretty terrific piece of bi-partisan legislation.

The problem with Mitt Romney, like most Republicans -speaking for myself here- is the fact that he would likely bow to pressure from the extreme wing of his party and appoint justices in the ideological mold of Scalia and Alito, and I just can't support that in any way.

I really think, as a president, Obama has been very "meh" to this liberal, but he DID appoint justices that I can live with, and I'm sure that if (when) that happens again if he gets a second term that he'll appoint justices with a similar ideological bent.  This is the lasting legacy of presidents. 

[kirksnosehair]

By the way, the term "Activist Judge" or "Activist Court" is the most loaded term in politics.

What it really means is:

"Judge I don't Agree with"  or "Court that Issues Rulings I don't Like"

[William Wallace]

Nothing like crossing state borders to get an abortion!

I'm in favor of ripping up the Constitution and starting anew...

The process is about complete. Really, it's been reinterpreted to a point that negates the purpose of having it in the first place.

I'd say that was destined to happen, because the Constitution is a deeply flawed document that simply does not adequately equip the nation to handle many issues of the day. Futhermore, the process for amending it is painfully slow, something our nation has proven to be increasingly impossible.

You know this, but both were intended that way. They didn't want a federal government to handle most issues, same goes for amending the Constitution. It was supposed to be difficult. But, as I said, Article V really doesn't matter. Congress does whatever it wants, provided people don't become irritated enough to stop them.

Or the courts step in and say "no, that's bullshit,"   which is of course exactly what the Republicans are wanting to put a stop to.

But the problem is that the courts don't adhere to the Constitution anymore than do the Congress or President. Rarely, unless it's a civil rights issue, will the court step in and call bullshit.