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Rick Santorum: Hey, Let’s Get Rid Of The Judges

Rick Santorum, who, yes, is still running for President, has an odd take on judicial reform:

GOP presidential candidate and former U.S. Sen. Rick Santorum went after the judicial branch during a policy speech Friday morning in Iowa, advocating for abolishing the 9th Circuit Court of Appeals and amending the Constitution to overturn Roe v. Wade and ban same-sex marriage.

“One of the things I’m most passionate about is the usurpation of authority the judiciary has done over the last couple decades in this country,” Santorum told a crowd of about 50 in Urbandale.

Santorum said it’s clear to him the U.S. Constitution gives the judicial branch the least power because it’s listed third in the articles, after the legislative and executive branches. He also questioned whether the Constitution allows for courts outside of the U.S. Supreme Court, and said the two other branches established those courts.

“They can establish them, and if those courts violate the Constitution and do things that they should be stopped from doing, they have the power to repeal those courts, to abolish these courts,” said the Pennsylvania Republican.

As a legal matter, Santorum is correct here. Other than the Supreme Court, all of the Federal Courts are the creation of Congress and Congress can create or abolish courts at their own will (although the added fact of Constitutional life tenure raises the question of what happens to Federal Judges who sitting on a court that was abolished by Congress). This has happened several times in American history as the court system has expanded, contracted, and expanded again to fit the needs of a growing nation. Santorum isn’t talking about reform the judiciary for efficiency’s sake, though. He’s talking about eliminating judgeships because he doesn’t like the decisions those judges have made. It’s the kind of partisan conflict over the judiciary that we haven’t really seen since Thomas Jefferson did battle with the Federalist-dominated judiciary in the early 1800s. As Dave Weigel points out, it’s also an idea that Newt Gingrich has been putting forward for years.

There’s something just a little dangerous about politicians talking about retaliating against the judiciary in this manner because they don’t like their decisions. While Santorum talks about judicial usurpation of the Constitution, this strikes me as a pretty clear example of complete disdain for the power of the Judiciary under the Constitution. Santorum’s suggestion that the Judiciary is somehow less important because it’s listed in Article III is perhaps the silliest argument of all. Yes, it’s true that there are fewer specific powers granted in Article III than in other parts of the Constitution, but that does not obviate the fact that the Judiciary is a co-equal branch of government, and that it retains the power to void Congressional enactments. That suggests that judges are more than just the pawns of Congress that Rick Santorum and Newt Gingrich would like them to be. Neither of these men are likely to be President, which is thankful for many reasons, but their ideas about the judiciary are very popular inside the Republican Party these days, and the fact that people take ideas like this seriously should bother any reasonable person.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. PD Shaw says:

    Rick Santorum: “The first thing we do, let’s kill all the judges.”

    Like or Dislike: Thumb up 1 Thumb down 0

  2. Rick Almeida says:

    I will give Sen. Santorum this much – he believes certain things very strongly, and he makes no bones about articulating them in a direct way.

    Would that more politicians were as candid.

    Like or Dislike: Thumb up 2 Thumb down 1

  3. Vast Variety says:

    @Rick Almeida: Its great to be candid… it’s bad to be insane.

    Like or Dislike: Thumb up 7 Thumb down 0

  4. Hey Norm says:

    This is an idea Gingrich has been putting forward for years

    …and he’s the smart guy of the party.
    ‘Nuff said.

    Like or Dislike: Thumb up 2 Thumb down 0

  5. mantis says:

    Today’s Republican Party is chock full of authoritarians with no interest in maintaining a pluralistic society and no respect for the democratic principles of the United States or the idea of an independent judiciary.

    Don’t like the way judges rule? Get rid of the courts!

    Don’t like the way some citizens vote, such as students, other young people, minorities, and the poor? Change the rules to prevent them from voting (or at least put many barriers in the way).

    Don’t like the way elections go? Threaten to kill your political opponents (e.g. using “second amendment remedies”).

    Don’t like the redistricting boundaries the bipartisan commission proposed? Impeach the independent chair without even offering a reason!

    Like or Dislike: Thumb up 12 Thumb down 0

  6. Ernieyeball says:

    “Santorum said it’s clear to him the U.S. Constitution gives the judicial branch the least power because it’s listed third in the articles”

    Just for fun lets follow this idea.
    Listed Fifth of Seven in the Articles:
    ‘The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified…”
    —Well not according to Ricky Dink…he will allow the federal legislature to infringe on the peoples right to keep and bear arms when it is necessary for the public safety…

    Listed Sixth of Seven in the Articles:
    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
    —Ricky strikes again. State Judges are only bound on Mondays and Wednesdays.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. Shannon Love says:

    If the people don’t have the right, through their elected representatives, to at some point of extremity reign in the judiciary, then how do we prevent the judiciary from being corrupted by power and going rouge? Are we just to accept that the judges are unquestionable kings and if they all go off the reservation we just have to agree and go along?

    Traditionally, judges were granted wide latitude because they held themselves restrained by the power of precedence. Judges could only make ruling in line with the ruling of the predecessors.

    The perception that the judiciary needs to be reigned in is caused by many judges and legal scholars actively pushing the idea that judges are not restrained by precedence and can instead make ruling based on their personal opinions as to what comprises wise public policy. Lawrence Tribe has build his entire career on the idea and many others endorse it.

    Once judges are no longer restrained by precedence, they are no longer restrained at all. Worse they no longer represent the majesty of the law. They become just another government official with an opinion and they lose the moral authority to overrule elected officials.

    The short-sided pursuit of immediate power has blinded to many in the legal profession to the long term consequences of their actions. Historians of law may someday look back a precedence breaking rulings like Roe v Wade as points at which the independent judiciary died in America.

    Like or Dislike: Thumb up 0 Thumb down 8

  8. Pylon says:

    Precedents.

    Like or Dislike: Thumb up 1 Thumb down 0

  9. Pylon says:

    Speaking of precedents, you do realize that the Court in Roe stated they were following precedent (Griswold), don’t you?

    Like or Dislike: Thumb up 3 Thumb down 0

  10. mantis says:

    @Shannon Love:

    Shannon,

    Learn something about our judiciary before spouting off about it. As Pylon notes, Roe v. Wade followed precedent set down in Griswold v. Connecticut. As to your question about “how do we prevent the judiciary from being corrupted by power and going rouge (sic),” there are already remedies in place. Federal judges can be impeached, and fifteen of them have been in our nation’s history.

    You don’t know much about the courts or judicial precedent, but you heard on some talk radio program that Lawrence Tribe is evil and Roe v. Wade ignored precedent, so you believe it. I suggest you turn off the radio and read some history.

    Like or Dislike: Thumb up 8 Thumb down 0

  11. Lomax says:

    Of course, all of us have disagreed with judges’ rulings from time to time; either in cases that we are personally connected to or famous cases, such as the Lindbergh kidnapping ( that Hoffman guy was probably involved, but did not act alone), the Warren Commission findings, and of course cases in which proven killers, child molesters, and drug dealers walk free over some technicality. But we also rejoice when an innocent person is released upon appeal, DNA, or new evidence. The point is that the judiciary is not perfect and never will be. Judges should know the law, but have some common sense and be fair. As Clint Eastwood stated in one of his Dirty Harry films: “I don’t like the system either, but that’s the law until someone comes up with something that makes sense” (or close to that, I can’t remember his exact words). Come to think of it, if we really had some Dirty Harry’s around now, the courts would have less business.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. A voice from another precinct says:

    @mantis: @Shannon Love: A nation where 350 million people collectively own 700 million guns (not including police throw downs and the ones owned by gangsters and felons) hardly needs to worry about old men in black robes going “rouge” (should that have been “rogue?”).

    Like or Dislike: Thumb up 0 Thumb down 0

  13. Ernieyeball says:

    @Lomax: Close. Per IMdB “Briggs, I hate the goddamn system, but until someone comes along with changes that make sense, I’ll stick with it.”
    From Magnum Force.

    This film includes the line yer brother wrote: “This is the cream in the bottle Callahan. Someone is trying to put the courts out of business.” uttered by the police commissioner after inspecting 5 stiffs in the morgue shot by…rogue cops.

    Like or Dislike: Thumb up 1 Thumb down 0