Why isn’t the Kim Davis wing of the GOP field talking about impeachment of Supreme Court justices?

During Wednesday night’s Republican dumpster fire, we heard a lot about the Supreme Court. In the four-person undercard debate, Rick Santorum and Bobby Jindal competed with each other to see who could draw the kookiest inferences and make the most outlandish analogies regarding the Kim Davis case. In the main event, Mike Huckabee and Ted Cruz both complained about judicial tyranny, with Huckabee giving flat-wrong civics lessons about how the Court decided Obergefell v Hodges and Cruz claiming that the Court would have ruled differently had conservatives not settled for appointing John Roberts because it was “easy.”

For Cruz’s part, his claim ignores both that Roberts dissented in the Obergefell ruling and that Cruz was himself one of Roberts’s biggest defenders during his nomination proceedings.

These four candidates — call them the Kim Davis wing of the Republican field — have all made the Supreme Court, same-sex marriage and Christian privilege cornerstones of their campaigns. And they all have ideas about conservative Christians take back the Court, the institution of marriage and their rightful place atop the cultural hierarchy if elected president.

Mike Huckabee, via Wikimedia Commons

Mike Huckabee, via Wikimedia Commons

Their ideas are all either illegal or would require a constitutional amendment to implement, which the Kim Davis wing seems perfectly fine with. Rick Santorum and Mike Huckabee think that states, local officials and whoever else feels like making some headlines can simply ignore the Supreme Court if they feel that a decision they’ve made is unjust — on Wednesday night, Santorum compared Kim Davis’s jail time to Martin Luther King, Jr.’s. On top of that, Huckabee has also suggested establishing term limits for Supreme Court justices. Ted Cruz has called for holding judicial retention elections to give the people the power to impeach them. Bobby Jindal wants to get rid of the Court entirely.

Absent from this list of ideas, though, is the one thing that a President Santorum, Jindal, Cruz or Huckabee could legally push for within their current constitutional constraints: impeachment. If they really think the Court’s opinions on marriage equality (and Obamacare) are so bad, they can call for the justices who voted for it to be impeached. Why haven’t they?

It isn’t as if they idea has never occurred to them. In 2014, Mike Huckabee called for the impeachment of the Arkansas judge who overturned the same-sex marriage ban he had signed as governor. When Ted Cruz was making the rounds with his judicial retention elections idea following the Obergefell decision, he dismissed the idea as being somehow more implausible than amending the Constitution to give the voters the power to do something that the Executive and Legislative branches already have the power to do:

It also isn’t as if the idea isn’t popular, or at least viable, in social conservative circles. Sarah Palin and Tony Perkins both called for impeaching any Supreme Court justice who ruled in favor of marriage equality earlier this year (Perkins quickly reversed his position). After the Obergefell ruling, Steve King called for the impeachment of Elena Kagan and Ruth Bader Ginsburg. Shortly before he announced his run for president, Ben Carson suggested impeaching justices who grant “extra” rights to LGBT people, although his campaign has since walked that suggestion back and acknowledged that the Obergefell ruling is the law of the land.

And while impeaching Supreme Court justices should otherwise be considered politically impossible, as it would require pulling together a two-thirds majority not once but five separate times, winning those kinds of votes is exactly what the Kim Davis wing of the party wants Senate Republicans to do to President Obama’s entire agenda. For his part, Jindal seemed positively unbothered by the necessity of 67 votes in the Senate for defunding Planned Parenthood, nixing the Iran Deal and repealing Obamacare on Wednesday night, over Lindsey Graham’s repeated attempts to explain that such votes simply aren’t in the cards. Ted Cruz is only in this race to begin with because he’s convinced enough Republicans voters that their leaders in the Senate are willfully wasting away their majority — that they really do have the votes necessary to do whatever they want if they’d only “fight harder” and “stand up for what they believe in.”

If that’s true of Planned Parenthood, the Iran Deal and Obamacare, why isn’t that true of the Supreme Court? After all, to hear Cruz tell it, they recently perpetrated one of the “darkest 24 hours in our nation’s history” — on par with Pearl Harbor and 9/11. Surely their sins are egregious enough for a president from the Kim Davis wing of the party to claim that these justices have invoked the “good behavior” clause in Article III of the Constitution, warranting dismissal.

If you hadn’t already guessed, the reason’s pretty clear: votes, and not much else. The reason why these candidates aren’t taking the one Constitutional option they have seriously, and are instead advocating for one part massive resistance and one part constitutional overhaul, is that they know they’ve lost but are stuck with core constituencies that fully expect to win.

Tony Perkins may genuinely believe that the fight isn’t over, that if social conservatives only work hard enough they can tear up every last one of the marriage licenses that have been issued to same-sex couples– just as God intended. The first and easiest (albeit not at all easy) step in that process is overhauling the Courts. But Cruz knows full well that he can’t reverse Obergefell, and to the extent that he believes he can be president, he doesn’t want the responsibility of doing so once he takes office.

The Kim Davis wing of the GOP field doesn’t think like that. For them, coming up with new, innovative, unconstitutional ways to mess with LGBT people is the mark of a bold conservative leader. But they aren’t playing this game to win the fight against LGBT rights; they’re just playing this game to grab votes from each other.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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