Federal judges have been getting hammered pretty hard in this Republican presidential campaign.
Rick Santorum has joked about banishing liberal federal judges to Guam. Erstwhile candidate Rick Perry has been a longtime advocate for states’ rights, calling himself a “10th Amendment-believing governor.” And Newt Gingrich has repeatedly criticized the country’s judicial system, targeting what he calls “activist judges.”
Gingrich has even suggested that Congress subpoena and arrest judges who make controversial rulings.
“I was, frankly, just fed up with elitist judges imposing secularism on the country and basically, fundamentally changing the American Constitution,” Gingrich explained in a conference call with reporters last December.
That same week, the former House speaker made his case to a national audience.
“The courts have become grotesquely dictatorial, far too powerful, and, I think, frankly arrogant in their misreading of the American people,” said Gingrich at a GOP presidential debate held on Fox News.
So when the candidates’ representatives showed up to a federal courtroom in Richmond on Jan. 13 to complain about Virginia’s ballot access law, the irony did not escape District Judge John Gibney.
As the hearing began, Gibney smiled and asked Gingrich’s lawyer what consequences he might face if he overturned a state law that’s been on the books for decades.
He said he wanted to make sure he wasn’t going to be labeled an “activist judge.”
Gingrich’s lawyer, Christian Adams, returned the smile and said he certainly wouldn’t suggest the judge was an activist by taking on this case. This case, he said, could be solved well within the confines of the Constitution.
His client failed to collect the required 10,000 signatures to get on the Virginia ballot. Rival GOP candidates Rick Santorum, Rick Perry and Jon Huntsman also failed.
In December, Perry filed a lawsuit against the Virginia State Board of Elections, arguing the state’s strict ballot access laws were unconstitutional. He said they violated his freedoms of speech and association. Soon after, Gingrich and the others joined Perry’s suit, asking that a state law be overturned so that they could all get on the ballot.
Gibney denied the request, saying the candidates should have filed their lawsuit months ago.
By filing in December, he said, “they played the game, lost, and then complained the rules were unfair.”
Perry and Gingrich promptly filed emergency appeals to get on the primary ballot. Yet within days, Perry was back to advocating for states’ rights.
“And when I’m the president of the United States, the states are gonna have substantially more rights to take care of their business, and not be forced by the EPA or by the Justice Department, for that matter, to do things that are against the will of the people,” Perry said at a debate televised on Fox News on Jan. 16.
Perry’s campaign spokesman Ray Sullivan said he saw no contradiction between Perry’s words and actions.
“There are serious constitutional conflicts, in our view, with Virginia law, and we believe the courts should review those and take steps to protect the rights of Virginia citizens as well as the presidential candidates to access the ballot and give voters the choice that they deserve,” Sullivan said in an interview with NPR.
The Texas governor has since ended his presidential campaign.
Gingrich’s campaign did not respond to repeated requests for comment, and the 4th Circuit Court of Appeals quickly shot down his and Perry’s appeal.
In the end, states’ rights seem to have won after all.
As per Virginia law, the only two candidates who managed to collect 10,000 signatures will be on the state’s primary ballot March 6: Mitt Romney and Ron Paul.