Justice

Ben Carson Says Congress Should Remove Pro-Equality Judges, Which Is Unconstitutional

CREDIT: AP Photo/Susan Walsh

Ben Carson

Federal judges had better make sure that their future rulings don’t conflict with the policy preferences of a President Ben Carson. Otherwise, despite a lifetime appointment, they might quickly find themselves out of a job.

During an interview last week with conservative Iowa radio host Steve Deace, Carson, who is considering running for the GOP presidential nomination in 2016, discussed the wave of recent rulings by federal courts striking down same-sex marriage bans. He argued that statewide ballot initiative results should be the final word, saying it was “unconstitutional” that judges have ruled in favor of equality despite these votes. The remarks were first reported by Right Wing Watch.

Carson continued that, when federal judges make rulings like this, “our Congress actually has the right to reprimand or remove them.”

DEACE: Do our rights really come from God? Or do they come from the mob, do they come from the state?

CARSON: I think you’re right about that. The Constitution actually [inaudible] this message. It says that those kinds of matters are in the jurisdiction of the state. That is not a federal issue. And, what the president and what the Supreme Court needs to reiterate is the states have a mechanism whereby they can determine the will of the people. It’s called ballot referendum. It has been done multiple times already. 32 states have indicated that marriage is between a man and a woman, and a few judges have come and overturn that. That, as far as I’m concerned, is unconstitutional. And Congress actually has oversight of what they call the inferior courts, everything below the Supreme Court. That’s where those overturns have come. When judges do not carry out their duties in an appropriate way, our Congress actually has the right to reprimand or remove them. Most people don’t know that because they don’t know the Constitution.

Listen to it:

Setting aside Carson’s premise that the Constitution’s promise of equality should be put up to a vote, he is misguided about what the Constitution provides with respect to judges. Despite his assertion, Congress cannot simply remove a judge for ruling in a way the majority disagrees with. Judges may only be removed for impeachable offenses, which the Constitution defines as “treason, bribery, or other high crimes and misdemeanors.” Under other circumstances, the Constitution declares that “judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.

Admittedly, there are precedents for reducing a sitting judge’s jurisdiction. The United States Court of Appeals for the Fifth Circuit, for example, was split into two courts in 1981. That was not done to punish the judges on that court, however, but rather because the old Fifth Circuit was viewed as too large and unwieldy. It would be something entirely different to strip a judge — and that judge’s court — of all of their authority.

Carson is not the only Republican to propose this type of governing through intimidation. Multiple times during his presidential bid, former Speaker Newt Gingrich suggested eliminating entire courts in order to punish judges he disagreed with.

Of course, it’s not terribly surprising that Carson would propose removing pro-equality judges, given his fervent opposition to LGBT rights. In 2013, he gained notoriety for comparing marriage equality to pedophilia and bestiality. He reiterated this view before eventually backing down and apologizing.