WASHINGTON -- In Thursday night's Republican presidential debate, the Fox News moderators announced that they would ask one question that had not been asked in previous debates: Is the judicial plan that Newt Gingrich talks up these days -- to subpoena and impeach judges and abolish courts for controversial decisions -- "totally irresponsible" or not? Gingrich received raucous applause when he answered by denouncing the judiciary as "grotesquely dictatorial," arguing that it needs to be tamed by the legislative and executive branches, and calling for the abolition of "anti-American" courts.
Attacking judges is not a new cause for the former House speaker. Last year he was one of the first national figures to support, with words and money, an unprecedented effort in the state of Iowa to oust three judges not because they had breached any ethical rules, but because a segment of the populace disagreed with one ruling. That effort has led to a politicization of Iowa's judicial selection process, which was designed to avoid politics. It also represents another example of Gingrich's pressuring an institution that did not work his way until it did.
In 2010, Gingrich provided $350,000, through a nonprofit he controlled and through fundraising, to a campaign by social conservatives to defeat three of the seven Iowa Supreme Court judges who had ruled in favor of gay marriage just one year earlier. In total, the anti-gay marriage forces spent $1 million in their successful campaign with the early money secured by Gingrich playing a major role.
Spending by interest groups in judicial elections has risen dramatically over the last decade. A report released in October by the Brennan Center for Justice, Justice at Stake and the National Institute of Money in State Politics found that outside groups accounted for one-third of the $38.4 million spent in state Supreme Court elections across the country in the 2009-10 cycle. Total spending in judicial elections over the past decade has more than doubled from the previous decade.
The groups behind the report are troubled by the surge in spending because, they argue, politicized judicial elections encourage judges to base their rulings not on the law, but on voters' desires and campaign contributors' needs. They are not alone in this view.
But for Gingrich, the Iowa judicial battle was just another example of him determining, as The Huffington Post's Howard Fineman put it, "precisely where to place the C-4 to blow up the establishment." In the past, Gingrich did the same to the congressional ethics process, C-SPAN and the sense of decorum between the political parties in the name of winning a Republican majority in the House. And it worked.
What he helped blow up this time was a state judicial system designed 50 years ago to avoid partisanship and politics in selecting judges. The state of Iowa has a system of merit-based judicial selection paired with retention elections. Traditionally, only judges accused of corruption or malfeasance lost their retention votes, but this time the election was used to oust three judges over a single ruling.
"Never in our history had we seen anything like this," said Connie Ryan Terrell, chairman of the board of Justice Not Politics, a coalition built to oppose the campaign to defeat the three judges. "The whole point of a retention process is to keep politics out of the courts. It is supposed to be nonpolitical."
When three of the judges who ruled in favor of gay marriage were recalled, the retention process became fully politicized. Social conservative groups are already planning to remove another one of those judges through a retention vote in 2012.
The increased spending around judicial elections and the politicization of the judicial process nationwide have led to calls for reform. Former Supreme Court Justice Sandra Day O'Connor has taken up the cause of judicial independence since her retirement from the bench. "In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution," O'Connor said in August 2010.
The Supreme Court itself ruled in 2009 in Caperton v. Massey that spending by outside groups in judicial elections can improperly influence a judge and his future decisions and, in some circumstances, requires recusal. Justice Anthony Kennedy wrote for the majority, "[T]here is a serious risk of actual bias ... when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent."
In Thursday's debate, only Rep. Ron Paul (R-Texas) directly questioned the policies proposed by Gingrich, including breaking up the U.S. Court of Appeals for the 9th Circuit and pressuring courts through congressional subpoenas. Paul raised the specter of the court system becoming a political football for partisan elected officials. "[T]he whole thing is if you just say, 'Well, we are going to -- OK, there are 10 courts. Let's get rid of three this year because they ruled a way we didn't like.' That to me is, I think, opening up a can of worms for us and would lead to trouble. But I really, really question this idea that the Congress could subpoena judges and bring them before us. That is a real affront to the separation of the powers," said Paul.
On the other hand, former Pennsylvania Sen. Rick Santorum, a longtime critic of judicial rulings on social issues, noted his support for the anti-retention campaign against the three Iowa judges. The audience applauded.
In recent years, Gingrich has made the judiciary a frequent target of his broadsides. He ramped up those attacks as he moved toward a presidential run, calling to remove judges and eliminate courts that rule against what Gingrich deems to be American interests.
"Gingrich, more than any of the other presidential hopefuls, has made attacks on the courts a central part of his campaign and, in particular, a central part of his strategy to reach evangelical and social conservative voters," said the Brennan Center's Adam Skaggs. "You can draw a straight line from Gingrich's involvement in attacks on judges in the Iowa decision to attacks on the campaign trail on federal judges."
In a 2009 speech, Gingrich called for abolishing the 9th Circuit as it now exists because it had ruled seven years earlier that the phrase "under God" in the Pledge of Allegiance was unconstitutional. (The 9th Circuit ruled again on the case in 2010 and found the phrase to be constitutional.) During his run for the Republican presidential nomination, Gingrich has stated that, if elected president, he would ignore certain Supreme Court rulings on national security and ask Congress to summon for questioning judges who rule against his liking.
These ideas were recently panned by two former Republican attorneys general. In an interview with Fox News, former Attorney General Michael Mukasey said Gingrich's plans were "dangerous, ridiculous, totally irresponsible, outrageous, off the wall, and would reduce the entire judicial system to a spectacle."
Former Attorney General Alberto Gonzales told Fox News, "[T]he notion of bringing judges before Congress like a schoolchild being brought before the principal to me is a little bit troubling. I believe that a strong and independent judiciary doesn't mean that the judiciary is above scrutiny, that it is above criticism for the work that it does. But I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges."
Gingrich's judicial attacks have helped and hurt him with a different constituency: evangelical groups in Iowa. The anti-retention campaign was run by Iowa's social conservative kingmaker Bob Vander Plaats, who has offered some praise of Gingrich. But other evangelicals, concerned about the money Gingrich helped Vander Plaats secure and disturbed by Gingrich's multiple marriages, are running a campaign to discourage Vander Plaats from endorsing the former speaker.