Last year, former GOP presidential candidate Newt Gingrich delivered an authoritarian speech where he promised that if elected president he would ignore court decisions he disagrees with, wage a campaign of intimidation against judges, and even potentially impeach judges who interpret the Constitution in way he disapproves of. Gingrich lost the GOP primary, but his spirit lives on in the Republican Party’s draft platform:
Despite improvements as a result of Republican nominations to the judiciary, some judges in the federal courts remain far afield from their constitutional limitations. The U.S. Constitution is the law of the land. Judicial activism which includes reliance on foreign law or unratified treaties undermines American law. The sole solution, apart from impeachment, is the appointment of constitutionist jurists, who will interpret the law as it was originally intended rather than make it. That is both a presidential responsibility, in selected judicial candidates, and a senatorial responsibility, in confirming them. We urge Republican Senators to do all in their power to prevent the elevation of additional leftist ideologues to the courts, particularly in the waning days of the current Administration.
There’s something quaint about Republicans expecting the nation to still believe they care about judicial activism after they spent the last two years pushing an attack on the Affordable Care Act that, in the words of a top conservative judge, had no basis “in either the text of the Constitution or Supreme Court precedent.” Or, for that matter, after many Republicans have declared everything from Social Security to Medicare to national child labor laws unconstitutional. Activist judging is the backbone of Republican constitutional theory, not the enemy of it.
Moreover, if Republicans really cared what our founding fathers thought about important constitutional questions like judicial independence, they would not even consider the idea of impeaching a judge simply because of a partisan disagreement. The Constitution provides that judges “shall hold their offices during good behaviour,” not so long as a political party agrees with them, and this principle was affirmed very early in American history.
In 1805, during Thomas Jefferson’s presidency, Jefferson loyalists in the House impeached Justice Samuel Chase due to decisions that Jefferson’s party disagreed with (and, in this case, with good reason for this disagreement). Nevertheless, the Senate acquitted Chase, with many members of Jefferson’s party voting for acquittal because they understood that an attack on a judge merely because a politician disagrees with that judge’s decisions is an attack on the independence of the judiciary itself.
This precedent served our country well for more than 200 years. It is baffling that the Republican Party now wants to abandon it.