For Newt Gingrich, Separation of Powers is Subjective

In an effort to win the support of conservative Iowans as his poll numbers in the heavily evangelical Christian state plummet, Republican presidential hopeful has heightened his assault on so-called activist judges to the point that even members of his own party have indicated Gingrich's vow to --as president -- remove judges whose decisions he disagrees with is outlandish and even unconstitutional.

Gingrich has stepped up his attack on federal judges over the weekend in an apparent effort to make Iowa's Christian voters forget about the series of extramarital affairs that has defined his personal life for past 30 years. During the most recent GOP presidential debate last Thursday, the former Speaker of the House insisted judges should be compelled to explain any controversial rulings -- in Gingrich-speak that means any decisions that offend the far-right -- before Congress, even suggesting that judges be subpoenaed so they will be forced to appear before the legislative body.

Gingrich Not Backing Down from Judicial Branch Comments

Gingrich, whose poll numbers surged in November after sitting on the sidelines for most of this year, showed no sign of backing down from a policy that Rep. Ron Paul stated was a real affront to the separation of the powers during Thursday's debate. While speaking with reporters on Saturday, The Washington Post reports Gingrich justified his idea putting on his history-professor hat and discussing how Thomas Jefferson abolished three federal circuits and 16 judgeships in 1802. According to Gingrich, such an act clearly wouldn't be unconstitutional because the courts are forcing us into a constitutional crisis because of their arrogance and overreach.

Of course, Jefferson made that call less than 15 years after the U.S. Constitution was ratified. Jefferson also didn't replace those judges with new guys who agreed with him.

Whether or not Gingrich actually believes any of this is difficult to say. His attack on judges has almost solely focused on decisions made by the 9th Circuit Court of Appeals, which has been blasted by conservatives for its alleged liberal bias. The court, which infamously ruled that the phrase one nation under God violates a citizen's right to be free of state-mandated religions -- a decision that was ultimately overturned -- is supposedly comprised of the activist judges who Gingrich, during an interview with Face the Nation, said are attempting to radicalize the country away from its core beliefs.

There is steady encroachment of secularism through the courts to redefine America as a nonreligious country and the encroachment of the courts on the president's commander-in-chief powers, which is enormously dangerous, Gingrich said, who never thought to mention that the clause of the Constitution mandating a separation of church and state is essentially what made the U.S. a secular country in the first place.

Of course, that part of the Constitution apparently doesn't stick with many of Iowa's evangelical Christian voters, who applauded Gingrich after he said judges who are so radically anti-America that they don't think God should be mentioned in the Pledge of Allegiance should be booted.

Is Gingrich's Stance Constitutional?

Judicial experts, including Republicans, are questioning the constitutionality of Gingrich's stance. The Constitution specifically grants federal judges life terms and only provides for impeachment in cases when judges do not serve in good behavior. While vague, experts say removing judges in any other circumstance -- especially because of a specific ruling -- is an affront to the separation of powers.

Bert Brandenburg, the executive director of the nonpartisan Justice at Stake campaign, which advocates for an independent judiciary, told The Washington Post that Gingrich's policy may be appealing to small niches of voters, but will not carry over on a national scale.

Overall, he's racing towards a cliff, Brandenburg said. Americans want courts that can uphold their rights and not be accountable to politicians. When you get to the point where you're talking about impeaching judges over decisions or abolishing courts or calling them before Congress, it's getting very far away from the American political mainstream.

In a major show of how absolutely ludicrous Gingrich's statements are, two of President George W. Bush's Attorney General's spoke out against Gingrich's proposal's in an interview with Fox News' Megan Kelly on Sunday. Former Attorney General Michael Mukasey, himself a former federal judge, called the proposal irresponsible, outrageous and dangerous and emphasized it would reduce the entire judicial system to a spectacle.

To say that you're going to undo an entire court simply because you don't like some of their decisions, when there are thousands of cases before that court, is totally irresponsible, Mukasey said. It's outrageous because it essentially does away with the notion that when courts decide cases the proper way to have them reviewed is to go to a higher court.

Even former Attorney General Alberto I don't recall Gonzalez said -- who helped justify Bush's torture policies in the War on Terror -- suggested Gingrich has insufficient respect for the rule of law.

The notion or the specter of bringing judges before the Congress, like a schoolchild being brought before the principal is, to me, a little bit troubling. I believe in a strong and independent judiciary... I cannot support and I would not support efforts that appear to be intimidation or retaliation against judges, Gonzalez said.