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Judges as punching bags

GOP presidential candidates' attacks on federal justices show a lack of respect for the Constitution.

November 01, 2011

Beating up on federal judges is nothing new for conservative politicians. But the near-unanimous embrace of that tactic by the 2012 Republican presidential field is nevertheless depressing. Candidates who trumpet their support for the Constitution are seeking to hobble one of that document's central protections: an independent judiciary.

Gov. Rick Perry, for instance, favors term limits for federal judges. Rep. Michele Bachmann believes Congress should prevent the federal courts from involving themselves in the dispute over same-sex marriage. Former Sen. Rick Santorum wants to abolish the U.S. 9th Circuit Court of Appeals (though its judges would have to be assigned elsewhere). Former Rep. Newt Gingrich believes that Congress should be able to summon Supreme Court justices to explain their opinions. Rep. Ron Paul would strip federal courts of their jurisdiction over cases involving religion, privacy, the right to marry and other matters. Only former Govs. Mitt Romney and Jon Huntsman Jr. have refrained from the judge-bashing.

What bothers the candidates about the federal courts is precisely what makes them invaluable. Life tenure and independence from Congress insulate judges from political pressure and make it easier for them to render appropriate, if unpopular, decisions. Would the justices who ruled against segregated public schools in 1954 have survived a reelection campaign? Or those who ruled in 1989 that the 1st Amendment protected a protester who burned the American flag?

Sometimes court decisions disappoint liberals, sometimes conservatives. President Obama has been acidly critical of the Supreme Court's decision in the Citizens United case, in which it held that corporations and unions may spend unlimited funds to influence elections. But he would never suggest that the justices in the majority in that case should be removed from the bench. Federal judges must be free to interpret the laws and the Constitution without fear that their rulings might jeopardize their tenure, and most Americans understand that.

The Republican candidates are correct in one respect: The courts do play an influential role in the American political system. But that doesn't make the Supreme Court "nine oligarchs in robes," as Perry puts it. The importance in this country of the Constitution, and the obligation of Congress and the states to abide by it, requires that an independent branch of government vigilantly keep watch on whether the Constitution is being honored. As Chief Justice John Marshall said in 1803, "It is emphatically the province and duty of the judicial department to say what the law is."

Presidents can influence the courts, particularly in the appointment of Supreme Court justices. But the restrictions being proposed by the Republican candidates would undermine a pillar of constitutional government. We hope they're not serious.

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