In what was billed as Newt Gingrich's effort to "continue" the conversation started at Thursday's Fox News Debate since he was "interrupted several times by strong applause when outlining his plans to restore the proper role of the judicial branch," the candidate continued his call to rein in the judiciary, which he said the Founding Fathers considered the weakest branch of government.
"An overwhelming majority of Americans are going to say when a judge is aggressively anti-American, aggressively anti-free speech, and aggressively anti-religious -- that judge ought to not be on the bench," Gingrich told reporters in the Saturday morning conference call.
On the campaign trail Gingrich has frequently blasted U.S. District Judge Fred Biery, who on June 1 ruled in the Ninth Circuit that the words benediction, invocation, God, and prayer could not be used at a high school graduation. Saturday morning, Gingrich tempered a previous assertion that the Ninth Circuit should be abolished, although he maintained such a move was "clearly constitutional" since Thomas Jefferson abolished 18 out of 35 federal judges."I think it's easier and more practical to simply impeach [Judge Biery] because it's a less radical step. But it's also useful for folks to understand that in fact in American history, in the period where you still had members of the constitutional convention in the government, they in fact abolished courts."
He said renewing talk about abolishing courts is a "signal to the legal class in this country: there are real limits to your ability to change America by elitist opinions that violate the beliefs of the American people and violates the tenets of the American contract, which begins with the Declaration of independence and comes up through the Constitution and the Federalist papers as an explanation to the Constitution. I think it's important to say [abolishing courts is] the last choice, last place you'd want to go."
Michael Mukasey and Alberto Gonzales, former attorney generals under President George W. Bush, told Fox News' Megyn Kelly in an exclusive interview that they were alarmed by Gingrich's argument that Congress should be allowed to subpoena judges after controversial rulings to "explain their constitutional reasoning" to those who passed the laws.
"The only basis by which Congress can subpoena people is to consider legislation. To subpoena judges to beat them up about their decisions has only -- if they are going to say that has to do with legislation they might propose, that's completely dishonest," Mukasey said.
"I think we have a great government, a great country because it's built upon the foundation of the rule of law. And one of the things that makes it great and the rule of law is protected by having a strong independent judiciary," Gonzales said.
The former House Speaker defended that position Saturday, asking, "Why couldn't the Congress say we find your June first ruling so unacceptable that we want you to come and explain it? We want to understand the kind of mindset that would threaten to put somebody in jail for using the word 'invocation.' And then we want to decide whether or not that is an impeachable offense because we find you so far outside the American culture you shouldn't be a federal judge."
Gingrich said 99.9 percent of cases considered in the Judiciary Branch should involve no interference from the president or Congress because they concentrate merely on the application of law. But, referring to historical instances in which Jefferson, Lincoln, and FDR disregarded the Supreme Court, he explained there are two scenarios where the President has the "unique authority" to overrule the court. The first, he said, would be during times of war; he called the 2008 Boumediene Supreme Court case that ruled a Guantanamo prisoner has the right to habeas corpus a "direct assault" on the president's powers to protect and defend the U.S.
The other situation, Gingrich argued, would be when the court makes a ruling "so egregious" -- referring to Judge Biery -- that it's legitimate. He said that this kind of a system is "checked" by the principle of "two out of three," which is how President Obama wouldn't have the authority to overrule the Supreme Court if they ruled the Affordable Care Act unconstitutional.
He explained, "If the president and the court's on one side, it's probable that the legislature will lose unless they can have a veto override majority. If the legislature and the president are on one side, it's likely the courts will lose. If the courts and Congress are one side, the Congress can simply refuse to allocate money for something and the President will lose."
Gingrich twice told reporters he was "delighted" Fox News' Megyn Kelly put the spotlight on his proposals to reform the judicial branch.
"When we first began writing about this nine years ago, we knew eventually that you had to get critical mass and you had to get people to take it seriously. Well, I think, given my current position as a relatively serious candidate for president, the fact that as a historian I'm prepared to lay out the history of this in the United States, and the fact for the very first time now we have a serious news person you know bring it front and center -- this is going to be a controversial conversation."