"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.

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