For all their cries of executive overreach in the Obama Administration, today’s GOP hopefuls seem to be in the mood for a little presidential muscle-flexing themselves. Newt Gingrich, Rick Perry and Michelle Bachmann have led a campaign against the powers of the federal judiciary this year, going so far as promising to disregard “unfavorable” federal court rulings. As Bob Egelko of the San Francisco Chronicle writes:
” At a debate Tuesday night sponsored by the antiabortion group Personhood USA, [GOP] candidates were asked how they would respond to a Supreme Court ruling overturning a law that declared life begins at conception.
“Obviously, you enforce the right to life,” answered Texas Gov. Rick Perry, according to news accounts.
Rep. Michele Bachmann, R-Minn., said it was time for Congress and the president to “reclaim that authority to make law…The Supreme Court can’t arbitrarily tell us what the law of the land is.”
That position dovetailed with the views Gingrich has espoused in recent weeks, calling for an end to “judicial supremacy” on subjects such as abortion, gay rights, school prayer and national security. He has proposed forcing federal judges to justify their rulings before Congress, impeaching and removing them from office for wayward decisions, abolishing their courts and selectively defying their rulings.”
Every so often, a politician makes a statement so ridiculous and patently hypocritical, that any critique is self-evident, so I’ll confine myself to two observations. Firstly, in asserting that the executive branch should have the power to “selectively defy” federal court rulings, Gingrich and Co. have staked a position entirely foreign to our political culture. It isn’t a conservative position, and it certainly isn’t liberal a position; in fact, it simply has no business in a liberal democracy under the rule of law.
As much as I hate the demagogic phrase “un-American,” I cannot imagine a more apt time to use it.
This leads me to my second observation—ideological consistency regarding the proper scope of federal court authority has never been the GOP’s strong suit. For instance, one need look no further than the Republican reaction to the 2008 Supreme Court case of District of Columbia vs. Heller, in which the Court overturned the city’s ban on handguns. As GOP presidential contender John McCain stated at the time,
“Today’s decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense…Today’s ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans…today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.”
A state legislature democratically enacts a law and the Supreme Court is justified in overturning it? There’s no explanation for such brazen cognitive dissonance aside from the conclusion that the GOPers aren’t really concerned with debating the philosophical issues surrounding Supreme Court authority; they want to impose a specific ideology, using whatever means necessary and without regard for legality or jurisprudence.
Of course, one might object that such is simply the nature of politics regardless of party, and one would be partially correct. W need look no further than the absurd debate surrounding the National Right-to-Carry Reciprocity Act (in which Republicans argued in favor of an expanded gun rights bill on the basis of federal authority while Democrats argued against it on the basis of state’s rights) to see that neither side cares about legal process as much as implementing a specific agenda. But before we begin assigning false equivalence, I’d like to posit that the kind of political doublespeak coming from the GOP on the issue is particularly bald-faced and audacious.
Let’s rewind to the third presidential debate between Barack Obama and John McCain, for, as Jon Stewart puts it, a moment of Zen:
SCHIEFFER:…Senator McCain, you believe Roe v. Wade should be overturned. Senator Obama, you believe it shouldn’t. Could either of you ever nominate someone to the Supreme Court who disagrees with you on this issue? Senator McCain?
MCCAIN: I would never and have never in all the years I’ve been there imposed a litmus test on any nominee to the court. That’s not appropriate to do.
SCHIEFFER: But even if it was someone — even someone who had a history of being for abortion rights, you would consider them?
MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.”