"Face the Nation" transcript: December 18, 2011

Below is a rush transcript of "Face the Nation" on December 18, 2011, hosted by CBS News chief Washington correspondent Bob Schieffer. The guest is Republican presidential hopeful Newt Gingrich.

Schieffer: And good morning again. Welcome to Face the Nation, Mr. Speaker. Did you get or did you see Christine O'Donnell's support.

Gingrich: No . You have great researchers. That's an amazing clip.

Schieffer: The Des Moines Register, this morning, endorsed Mitt Romney. I have to get your reaction.

Gingrich: Well I'm actually delighted because the Manchester Union Leader, which is a reliably conservative newspaper, endorsed me. The Des Moines Register, which is a solidly liberal newspaper, did not endorse me. I think that indicates who the conservative in this race is.

Schieffer: I want to talk to you a little bit about this whole business. You really turned up the heat on what you call activist judges. You talked about this the last time you were on Face the Nation and yesterday you had a telephone conference call with reporters because you want to put this out front and center. In fact, your folks said to me be sure and ask him about judges so I know this is something you want to talk about. Basically, what you said was, sometimes in the past, presidents have paid no attention to the Supreme Court when it issued a ruling and you said there might be times or there would be times now when a president should just ignore the Supreme Court. I'm not sure I understand how that works

Gingrich: Well, Bob, I think part of the advantage I have is that I'm not a lawyer. And so as historian, I look at the context of the judiciary and the constitution in terms of American history. The fact is, I'll just give you two examples -- Judge Biery's ruling on June 1st that he would jail the superintendent if anybody at the high school graduation used the word benediction, used the word invocation, asked for a moment of silence, asked the audience to stand, or mentioned God, he would jail the superintendent was such an anti-American dictatorship of speech that there's no reason the American people need to tolerate a federal judge who is that out of sync with an entire culture. So I have to ask the question, is there an alternative? What's the recourse? Well, one recourse is impeachment. The Supreme Court, in Boumediene...literally inserted the American civil liberties onto the battlefield. Now this is the opposite of World War II where Franklin Delano Roosevelt told the Supreme Court, through his attorney general, that the 14 German saboteurs that have been picked up in the U.S. would be tried by military tribunal and executed and that he would not tolerate a writ of habeas corpus as commander in chief. And so you have this real problem that since 1958, when the war in court asserted by itself, that the Supreme Court was supreme over the president and the congress, you've had a fundamental assault on our liberties by the courts, you have an increasingly arrogant judiciary, and the question is, is there anything we the American people can do? The standard conservative answer has been, well, eventually we'll appoint good judges. I think that's inadequate. The constitution promises a balance of the judicial branch, executive branch and legislative branch. The Federalist Papers say specifically the weakest of the three branches is the judiciary. Jefferson abolishes 18 out of 35 federal judges.

Schieffer: They'd just been created, though.

Gingrich: They'd just been created and they'd been appointed. And he abolishes them. Over half of all the judges. Jackson says of the court, they think the bank of the United States is constitutional, I don't think it's constitutional. Their opinion doesn't matter to me. I'm the president, they're over the judiciary, he vetoes it. Lincoln spends part of his first inaugural because people tend to forget, the Supreme Court in Dred Scott, ruled that slavery extended to the whole country. And Lincoln said very specifically, that's the law of the case that is not the law of the land. Nine people cannot create the law of the land or you have eliminated our freedom as a people.

Schieffer: Mr. Speaker, the old saying in legal circles is that the Supreme Court is not last because it's right, it's right because it's last. There comes a point where you have to accept things as the law of the land. How do you decide, how does the president decide what's a good law and I'm going to obey the Supreme Court or what's a bad law and I'm just going to ignore it?

Gingrich: I think it depends on the severity of the case. I'm not suggesting that the congress and the president review every decision. I'm suggesting that when there are decisions, using Boumediene as an example, in which they're literally risking putting civil liberty rules in battlefields, it's utterly irrational for the Supreme Court to take on its shoulders the defense of the United States. It's a violation of the constitution.

Schieffer: Brown vs. Board of Education was a very controversial decision. There were large number of people in the United States that didn't want to do that. Are you saying that should the president have been so disposed, he could have just ignored that?

Gingrich: I'm saying that in the case of Dred Scott, which was an equally important and terrible decision, remember the court's sometimes right, the court's sometimes wrong.

Schieffer: Well that was then, this is now.

Gingrich: No, no, no. You can't be sure what the next court will do and the question is, as a people do we have the right to take the 9th Circuit Court, which ruled the one nation under God was unconstitutional in the pledge of allegiance. Do we as a people, where over 90 percent of the people believe that's false, the Senate and the House overwhelmingly rejected it immediately. They had a vote almost immediately, overwhelmingly rejected it.

Schieffer: Alright here's another one, this is now. Next year the Supreme Court is going to take up Obama's healthcare proposal. What if they throw it out? Can President Obama then say I'm sorry boys, I'm just going to go ahead and implement it. Could he do that?

Gingrich: The key question is, what would the congress then do? Because there are three branches...

Schieffer: But could he do that?

Gingrich: He could try to do that. And the congress would then cut him off. Here's the key -- it's always two out of three. If the president and the congress say the court is wrong, in the end the court would lose. If the congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the congress loses. The founding fathers designed the constitution very specifically in a Montesquieu spirit of the laws to have a balance of power not to have a dictatorship by any one of the three branches.

Schieffer: Let me just tell you what several people have said about this. When the Des Moines Register announced that it was supporting Mitt Romney, it said one of the reasons is because he does not pander to extremes with attacks on the courts. And a number of conservatives, including two of George Bush's attorneys general, Alberto Gonzales and Michael Mulcasey both said and I'm going to just quote what Mr. Mulcasey said and he told this to Fox News, he wasn't telling it to Mother Jones. He told Fox News, he said "Mr. Gingrich's proposal is dangerous, ridiculous, totally irresponsible, outrageous, off the wall, and would reduce the entire judicial system to a spectacle." Now that's a conservative judge or a conservative attorney general. How do you respond to that?

Gingrich: I think many lawyers will find this a very frightening idea. They've had this run of 50 years of pretending judges are supreme, that they can't be challenged. The lawyer class defines America. We've had rulings that outlawed school prayer, we've had ruling that outlawed the cross, we've had rulings the outlawed the 10 Commandments, we've had a steady secular drive to radicalize this country away from all of its core beliefs. I mean what got me into this was the 9th Circuit saying that one nation under God is unconstitutional. We live in a country where judge Biery can literally say I will put you in jail for saying the word benediction. There's something profoundly wrong with the judicial system that has moved to that kind of extreme behavior.

Schieffer: But I would also add that what happened in that case is that an appeals court overturned that judge.

Gingrich: Right.

Schieffer: And the system worked.

Gingrich: No the local school board ended up paying large legal fees. Let me give you an example of how much this elitism permeates the system. The House Franken Commission says members of the House cannot say Merry Christmas in their official correspondence. This is absurd. But it's part of the same elite anti-religious belief structure which leads the courts to define that you're supposed to take down the Mount Soledad cross in San Diego even though it's a historic cross. And I'm just suggesting to you...I got into this originally because of two things -- The steady encroachment of secularism through the courts to redefine America as a non-religious country and the encroachment of the courts on the president's commander in chief powers, which is enormously dangerous.

Schieffer: Let me just ask you this. You talk about enforcing it because one of things you say is if you don't like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that's unconstitutional but I'll let that go for a minute. I just want to ask you from a practical standpoint, how would you enforce that? Would you send the Capitol police down to arrest him?

Gingrich: If you had to or you'd instruct the Justice Department to send a U.S. Marshall. Let's take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he's going to jail the superintendent over the word benediction and invocation? Because before...because then I would encourage impeachment. But before you move to impeachment, you'd like to know why he said it. Now clearly since the congress has the power...

Schieffer: What if he didn't come? What if he said, no thank you, I'm not coming?

Gingrich: Well that is what happens in impeachment cases. In an impeachment case, the House studies whether or not, the House brings them in, the House subpoenas them. And as a general rule they show up. I mean, but you're raising the core question, are judges above the rest of the constitution? Or are judges one of the three co-equal branches?

Schieffer: But isn't the other side of that is, are the rest of us above the constitution and obeying the law?

Gingrich: No.

Schieffer: Don't you at some point we have to say this is a nation of laws and we all have to....

Gingrich: We do. But I'll go back to Lincoln who people generally think respected the law. Lincoln explicitly instructed his administration to not enforce Dred Scott. And he said flatly, it's the law of the case, not the law of the land. It's in his first inaugural. By the way, if you go to Newt.org, there's an entire paper outlining the history of this case. Because I knew I was launching a topic that no other presidential candidate in modern time has launched. And I knew it had to be intellectually defensible.

Schieffer: And that's why I'm spending so much time on it here. It's fair to say, I think you agree Mr. Speaker, that the judicial system is already under enormous strain. It's almost impossible now to get a federal judge or certainly a Supreme Court Justice confirmed. We go through these long drawn out things. I think there are what, 80 something judgeships that are vacant right now?

Gingrich: Right.

Schieffer: Out of 800. What's that, a tenth? I guess. Wouldn't this just add to this? Wouldn't it just throw the entire system into chaos. Just sort of bring all three branches to a screeching hault...

Gingrich: No.

Schieffer: In a constitutional crisis?

Gingrich: This is why the 2012 election is very important. The reason we are so deadlocked is that we have an elite that still has an enormous amount of power and they would appoint very radical judges. You have the vast bulk of the American people who are opposed to that but they don't have enough power yet to stop it and one of the key questions in 2012 is simple - Do you want to move toward American exceptionalism? We assert the constitution. We assert the nature of America or do you, in fact, want to become a secular, European sort of bureaucratic socialist society? As long as these two sides are fighting, this is not because people have bad personalities or because people are incompetent. There is a fundamental conflict underway about what kind of country we're going to be.

Schieffer: Alright, we're going to take a break and talk about something else when we come back in a minute.

Gingrich: Alright.

[COMMERCIAL BREAK]

Schieffer: We're back with the republican frontrunner Newt Gingrich. Mr. Gingrich, the Wall Street Journal had a particularly scathing editorial about your ties to Freddie Mac yesterday. They said that one problem you had was a lack of candor and that more damaging than your opponent's criticism of your ties to Freddie Mac because you did work for them, your opponents say as a lobbyist, you say as a consultant. They said what the journal says is that Mr. Gingrich does not understand why anyone is offended. They say you would help your candidacy if you stopped defending your Freddie payday, admitted your mistake and promised to atone as president by shrinking Fannie and Freddie and ultimately putting them out of business.

Gingrich: Well I think candidly we earned that editorial by not stopping and handling this and laying it out. The facts are I didn't personally get that kind of money. I went to a consulting firm which had offices in three cities. The share I got was relatively small. We did consulting advice. The only thing I ever wrote for Freddie Mac that was ever published said as part of it they need more regulations. The only time I've talked to the congress and to the republicans in congress was in July of 2008, and it's actually in the New York Times, at the time. And I said vote against the bailout. I said do not help Freddie Mac and Fannie Mae. This is not something you should do. I was supporting John Boehner in his opposition to a bailout bill for Fannie and Freddie. The actual record is much closer to what the Wall Street Journal wants. I favor breaking both of them up. They should each be four or five companies and they should be weaned off the government endorsements because it has given them both inappropriate advantages and because we now know from the history of how they evolved that they abused that kind of responsibility.

Schieffer: Did you, while all this was going on, know that there was something going on? We just had six executives of Fannie Mae and Freddie Mac who were just indicted but a civil lawsuit, fraud suit was filed against them for misinforming people about this. Did you at the time suspect that there was something wrong here?

Gingrich: I think that civil suit tells you what was going on and why it was wrong. Nobody is walking in and telling me, look, this is how dumb we're being. This is the size of the risk we're engaged in. Do I think that there's a purpose to try and help poor people get into housing? Yes. I started out I think in 1994 with Habitat for Humanity. We actually got one of the companies to help try to get every member of congress to build one Habitat house. My motto was to help the poor earn their housing, not to try to give them housing they couldn't afford. And I kept trying to find a way to use conservative principles to help poor people acquire housing which I think is still a worthy goal.

Schieffer: Let's talk about another big issue in the campaign. That is immigration. Mitt Romney has taken such a hard line, it seems to me, on immigration that some within the Republican Party are saying, he is simply running off Hispanic voters. Do you agree with that?

Gingrich: I'm not going on comment on Governor Romney. I will say that I do not believe that the American people are going to tolerate going after somebody who has been here 25 years, who has a family, has children and grandchildren, belongs to a local church. What I proposed is very standard things. Control the border by January 1, 2014. Make English the official language of government. Go to a much better visa program that's much... that makes it more desirable to visit the U.S. Legally. Go to a better deportation program to move people out who shouldn't be here. Have a guest worker program outsourced to American Express, Visa or MasterCard so that you know that fraud is very unlikely. And have much steeper penalties for employers who hire people illegally. In that context what I've said which I think most people think is common sense which is there is a group of people who have been here a long time. We've talked about creating a citizenry view board in the World War II selective service model.

Schieffer: Could you.

Gingrich: One last thing. If somebody has been here a long time and has an American family willing to sponsor them, they should be subject to review to get a residency permit not citizenship but a residency permit. I disagree with some of my friends. I do not believe the American people are going to send police out to round up folks who have been here 25 years.

Schieffer: That's the question I'm coming to. There are 11 million of these people. I mean, what are you going to do with them? You can't build that many prisons to put them in. You can't get that many buses to haul them back.

Gingrich: Seven or eight or nine million would go home and get a guest worker permit and come back under the law. The last two million are people who have been here a very long time. They are really part of the community. They're not citizens but they're part of the community. The folks, you and I may well know some of these folks. And 25 years ago, they did something wrong but they've been very good neighbors. They belong to the local church. As I said one of the requirements would be they have to have an American family sponsor them to be eligible for review by the Citizen Review Board. I think it's a responsible position that recognizes the humanity of the problem but firmly establishes the rule of law.

Schieffer: The last American troop left Iraq today. Overnight. I just wonder at the end of this long war, do you have any thoughts on that?

Gingrich: Well, I said in December of 2003 both on Meet the Press and on Newsweek that he had gone off a cliff. Ambassador Bremer had given us an assignment we couldn't do. I think we're going to find through our great sadness we've lost several thousand young Americans and had many thousands more wounded undertaking a project we couldn't do. Last week when Maliki visited the president one of the people in his entourage was a commander in the Iranian revolutionary guard. I mean people do not understand how much the Iranians have penetrated Iraq and that the vacuum we've created will lead to I think a very, very unstable and very unpleasant environment in Iraq.

Schieffer: We have just a short time left. Let me just ask you, did you think six months ago that you would be where you are today?

Gingrich: You know, when I came on the show at one point and it was, as we were sliding down, and I thought I could fight my way back up to being in the top three or four. But I think positive ideas and positive solutions, the contract we laid out at Newt.org has attracted people. I think they like the idea of somebody who is determined to be positive.

Schieffer: Mr. Speaker, thank you again for coming this morning. I'll be back with some final thoughts in just a minute.

Schieffer's commentary:

A modest proposal: Let's have TWO Congresses

After watching Congress flounder around for an entire year and manage to accomplish nothing, I've come up with my own reform plan. Just create a second Congress.

How do you do that? Hey, it's a campaign year, you can promise anything!

Here's a broad outline about how it would work: members of this Congress would be elected for one year - and barred from ever running again.

Since no one would have to worry reelection, they could dive into all the heavy lifting - entitlement reform, deficit reduction, tax policy, and rebuilding our roads and bridges and schools.

It's not exactly a new idea - I sort of modeled on the first Congress. Getting reelected was the last thing on those guys' minds. They were worried about being HANGED if it didn't work out. So they put all their chips on the line and went for it.

With my new Congress doing the work, what would we do with the old Congress? Well, they'd still be there. We'd just strip them of all power and no longer pay them.

With nothing to do, they could devote themselves full-time to what they do best - plotting against one another, dunning people for money, cranking out press releases, issuing declarations, dreaming up excuses, threatening to shut down the government every month or so, and otherwise finding ways to avoid doing anything that actually mattered to anyone but them.

Since it would no longer cost us anything, instead of feeling disgust, we might be actually moved to look kindly on them. We might even say, "Now THAT'S entertainment!"