What Do GOP Candidates Think About New Hampshire's Bizarre Legislature?

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Republican control of the state house has led to an outlandish assault on the judiciary. If elected, would the GOP presidential contenders replicate what's happened in the Granite State?

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The Republican primary race is about to pass through New Hampshire, and the national media have descended upon the Granite State to offer us their wit and wisdom on presidential politics and to be, in turn, educated and entertained by the contenders and pretenders still in the hunt for the nomination. It's a perfect time to ask the surviving candidates what they think of some of the bizarre recent machinations of the New Hampshire House of Representatives, which has taken its crazy train off the rails since the 2010 election gave Republicans a three-to-one majority in that chamber.

Newt Gingrich trashed the courts and got trounced in Iowa. Now Rick Santorum is trashing judges on his way to getting trounced in New Hampshire. If the New England Traveler News Network can offer suggestions to the candidates on where to get a good burger, I certainly feel justified in offering a few suggestions to my fellow journalists about which law-related questions they ought to ask the candidates between now and Tuesday's primary. I only have a few.

1. In October, the New Hampshire House of Representatives, led by Republican Rep. Dan Itse, passed a dubious measure "repudiating" a decision by the Supreme Court of New Hampshire. That decision had endorsed the view of the executive branch, which had argued that the legislature could not force the state's attorney general to join a lawsuit against the Obama Administration and the Affordable Care Act. The legislature, in other words, sought to trump both of the other two branches of state government that were each performing core functions.

On this point, my questions for the candidates are: Do they endorse this use of taxpayer time and money by elected officials? If they are elected president, are they going to applaud similar moves by Congress to repudiate those United States Supreme Court decisions with which some lawmakers disagree? Are the candidates, if elected to the White House, going to embrace the notion that national legislators can threaten the Justice Department if federal lawyers choose in the exercise of their discretion not to join certain lawsuits?

2. In November, Republican members of the New Hampshire House of Representatives began screaming at members of the state's executive branch, who had come to the legislative chamber to explain to the elected officials there why they weren't about to take President Barack Obama's name off the 2012 ballot. The request to do so had been made by those elected officials in the Granite State who still believe that the President is a Kenyan. An investigation is still pending, I believe, into whether any laws were broken by the lawmakers.

On this point, my questions for the presidential candidates are: Do they condone the conduct of their fellow Republicans in this instance? Do they believe the "birther" issue is quite literally worth fighting over in the 2012 presidential race? Are they ready now to concede that every second spent arguing over the President's nationality is a second less spent on making life better for the residents of New Hampshire? What is their current position on the "birther" issue and its projected impact upon the national election?

3. This past week, five Republican members of the New Hampshire House of Representatives introduced a constitutional amendment that would strip away from the state judiciary the power to evaluate the constitutionality of state laws. Just think about that for a second. Lawmakers would get to pass laws and determine the constitutionality of their own work. As Bill Raftery of Gavel To Gavel points out, similar efforts in the state have failed in the past. Here's part of the language of the proposed amendment:

To decide upon the legality of claims and conduct made in the course of determining cases in controversy between persons arising under laws previously established is a judicial act. The supreme court shall have final authority on the constitutionality of judicial acts. To make a new general rule of prospective effect for the regulation of new controversies for the general benefit and welfare of the state is a legislative act. The general court shall have final authority on the constitutionality of legislative acts.

On this point, my questions for the presidential candidates are: Do they agree with the premise of the proposed amendment, that our state courts should no longer be permitted to determine the constitutionality of state laws? If so, would they recommend such a scenario on the national level even if it means minority interests are no longer protected? If they would not recommend such a change to the balance of power, are they prepared to renounce such efforts by lawmakers to intrude upon core judicial functions?

It will be easy, I suppose, for the national candidates to answer these questions by saying that they want to stay out of local politics. But there is nothing "local" about the issues raised by New Hampshire lawmakers—the new health care law, the "birther" issue, the notion that the courts should be neutered from their traditional independence. These issues are mirrored on the national scene and, indeed, fueled by some of the very candidates who are bouncing around New Hampshire these days looking for votes.

The embarrassment that is the current New Hampshire House of Representatives is an example of what happens when the balance of political power is handed over to zealots of a single party—when there is a 3-1 ratio and a lack of moderates and moderation. Is this what America has to look forward to if the Republicans gain control of the Senate and the White House in 2012? Is this how the Washington gridlock is going to end, in a frenzy of half-assed measures designed to diminish and demean the role of the courts and the protections for political minorities enshrined in the Bill of Rights?

So I guess my main question for the Republican candidates is: Which side they are on? Are they on the side of the state ideologues who have wasted so much time these past two years turning New Hampshire into a laboratory for bad ideas? Or are the presidential candidates on the side of those voters, in New Hampshire and elsewhere, who believe the country ought to resolve its more pressing problems before even considering the idea of dismantling a constitutional system of checks and balances that has worked well for over 200 years. Answer me that, contenders and pretenders.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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