WASHINGTON -- Newt Gingrich's recent attack against federal judges has prompted an ample backlash, even from fellow conservatives. Yet they offer a reminder of how often candidates attack the courts and showcase the stakes for the judiciary in who wins the White House next November.
In his first three years, President Obama has appointed two Supreme Court justices, 25 federal appeals court judges and 99 district court judges. All serve for limitless terms.
Whoever is sworn in as president in January 2013 could leave a similar legacy for the law of the land. At the Supreme Court, three justices will turn 80 during the next administration and possibly consider stepping down: Ruth Bader Ginsburg, now 78, and Antonin Scalia and Anthony Kennedy, both now 75.
At the district and circuit court level — the first two rungs of the federal judiciary — key vacancies will likely await whoever is elected. On the 11-member U.S. Court of Appeals for the District of Columbia Circuit, which resolves challenges to federal regulations, three vacancies already exist and are not expected to be filled soon. Nationwide, the federal bench consists of 874 lifetime appointees.
"More and more, our country's disputes, on the environment, on labor, on criminal law, are being decided by federal judges," says University of Utah law professor Paul Cassell, a former district court judge. "We're looking to courts to sort out issues like health care."
Georgetown University law professor Susan Low Bloch agrees. "The legacy for the president can be huge, given how many controversial issues reach the courts." she says. "Health care, immigration, abortion, affirmative action and voting rights — all of these are very important and tend to divide the nation."
Yet, the judiciary — unlike the economy, which people understand as affecting their lives — rarely dominates the discussion in a presidential campaign.
Gingrich's remarks in recent debates, interviews and documents on his campaign website have put a spotlight on federal judges. Declaring that the judiciary has turned "grotesquely dictatorial," he proposes having judges who issue unpopular decisions picked up by U.S. marshals and made to account to Congress and the executive branch for their rulings.
"If the president and the Congress say the court is wrong, in the end the court would lose," Gingrich said on CBS News' Face the Nation on Dec. 18.
Many Republicans, including former attorney general Michael Mukasey, an appointee of George W. Bush and a former district court judge, have denounced Gingrich's ideas.
His chief rival for the GOP presidential nomination, Mitt Romney, criticized Gingrich's view that authorities could be sent after judges. "The solution to judges out of control is not to tear up the Constitution and say that the Congress of the United States becomes the now ultimate power in this country," Romney said on Fox News last week. "In the Constitution, there is a method for removing a justice. There's also a method for reversing their decisions."
Judges can be removed from office through the impeachment process, which requires a majority vote by the House of Representatives to impeach and a two-thirds vote for conviction by the Senate on any article of impeachment from the House.
For as long as the United States has had politicians and judges, politicians have complained about judges, particularly in election years. One of the most notorious episodes was Democratic President Franklin D. Roosevelt's attempt to "pack" the court in 1937 after a series of rulings blocking his New Deal initiatives. Roosevelt proposed the appointment of a new justice for every member of the court that was over 70; six of the nine members were over 70 at the time. The court-packing plan died in Congress.
In the modern era, GOP presidential candidate Bob Dole in 1996 decried "activist" judges and targeted U.S. District Court Judge Harold Baer of New York, because of a decision disallowing evidence in a drug trial.
Dole, who lost to incumbent President Clinton, failed to generate much public attention regarding the judiciary. Yet he did draw criticism in Washington, including from conservative jurists. Chief Justice William Rehnquist, a lifelong Republican, said in a speech at the time one of the "essentials" to the functioning of the federal courts was "the independence of the judges who sit on these courts."
Gingrich has gone much further than Dole or any other political candidate in contemporary campaigns.
Cassell, an appointee of George W. Bush in 2002 who left the bench to teach in 2007, is among the conservatives who bristle at Gingrich's views. Cassell likened Gingrich's approach to "a nuclear missile" challenging the "lifetime guarantees that are part of our Constitution."
Bloch added: "It's so over-the-top that it makes a mockery of judicial independence."