Gingrich: Gov't branches should rule 2 out of 3

Republican presidential candidate and former House Speaker Newt Gingrich appears on CBS News' "Face the Nation" on Sunday, December 18, 2011 in Washington, D.C.
CBS News photo / Chris Usher

Newt Gingrich on Sunday reiterated his argument that there is something "profoundly wrong" with the United States' judicial system, and argued that the balance of power in American government should come down to "two out of three" branches of the government.

In an appearance on CBS' "Face the Nation," Gingrich continued to defend his controversial position that Congress and the president should have the authority to ignore the rulings of federal judges when they disagree with them.

Gingrich: Congress, president can ignore courts

Citing what he describes as "extreme behavior" on the party of the judicial system, Gingrich proposes a system wherein "it's always two out of three."

"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," said Gingrich. "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."

"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?'" asked CBS' Bob Schieffer.

"I think it depends on the severity of the case," Gingrich responded. "I'm not suggesting that the Congress and the president review every decision. I'm suggesting that when there are decisions... 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."

When asked how he would force a judge to respond to a subpoena - from which judges are protected by common-law judicial privilege, barring in matters such as judicial misconduct - Gingrich said he would consider sending the Capitol police to arrest him or her.

"If you had to," he said, responding to the suggestion. "Or you'd instruct the Justice Department to send a U.S. Marshall."

"What if he didn't come? What if he said, 'No thank you, I'm not coming'?" asked Schieffer.

"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," said Gingrich.

Gingrich suggested that his proposal was meant to protect America from an "elite anti-religious belief structure" that has pervaded the courts.

"This is why the 2012 election is very important," Gingrich said. "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."

Gingrich has been roundly criticized for his views on the court - including by former Attorney General Michael Mulcasey, who served during the Republican administration of George W. Bush, and who said in an interview with Fox News that "Mr. Gingrich's proposal is dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall, and would reduce the entire judicial system to a spectacle."

The Des Moines Register, when announcing its endorsement for Republican presidential candidate Mitt Romney on Saturday, lauded the former Massachusetts governor's restraint from "reckless rhetoric and moralizing" while "other candidates have pandered to extremes with attacks on the courts and sermons on Christian values."

Gingrich conceded today that a number of legal experts would not necessarily be comfortable with his take on the separation of power within the American government. But, he says, that's the point.

"I think many lawyers will find this a very frightening idea," he said. "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 rulings 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."

The former House Speaker, who has been an influential force in Washington for decades, presented himself as an alternative to that elite power structure.

"I think part of the advantage I have is that I'm not a lawyer," he said. "As a historian, I look at the context of the judiciary and the Constitution in terms of American history."