>> schieffer: today on "face the nation," in the studio live, republican presidential candidate newt gingrich. he is the frontrunner now. so he's catching it from all over. his rival. >> i think newt gingrich has been an unreliable leader in the conservative movement. >> reporter: the conservative media. this is the very conservative "national review." and, of course, he's catching it from the late night comics. >> so i would just like to say tonight to the republican primary voters-- don't do this. >> reporter: for all the fire gingrich says he'll stay on the high road. >> others seem to be more focused on attacks rather than moving the country forward. that's up to them. >> schieffer: as for rival mitt romney, he's picked up some key endorsements: the "des moines register," and tea party favorite south carolina governor nikki haley. >> he's already a leader that

knows what he wants to do the first day he gets into office and he's ready to do it. >> schieffer: he even got the nod from former delaware senate candidate christine o'donnell. remember her? >> i'm not a witch. >> schieffer: why did she endorse romney? his consistency. >> he's changed his mind about big important issues over the years. >> that's one of the things that i like about him because he's been consistent since he changed his mind. >> schieffer: what a campaign. and newt gingrich is next. this is "face the nation." captioning sponsored by cbs >> from cbs news in washington, "face the nation. with bob schieffer. >> schieffer: and good morning again. welcome to "face the nation," mr. speaker. did you get or do you seek christine o'donnell's support? >> no. you have great researchers. that's an amazing clip. ( laughing ) >> schieffer: the des moines

register" this morning endorsed mitt romney. i have to get your reaction. >> well, i'm actually delighted because the "manchester union leader," which is a reliably conservative paper endorsed me. the "des moines register," which is a liberal newspaper did not endorse me. i think that indicates who the conservative in this race is. >> schieffer: all right. i want to talk to you a little bit about this whole business... you really turned up the heat on what you call "activist judges." he talk about this the last time you were on "face the nation." yesterday, you had a telephone conference call with reporters because you want to put this out front and center. in fact, your folks said to me, be sure and ask him about judges, so i know this is something you want to talk about. basically, what you said was that, sometimes in the past, presidents have paid no attention to the supreme court when it made a ruling, and you said there might be times or there would be nights now when a president should just ignore the

supreme court. i'm not sure i understand how that works. >> bob, i think part of the advantage i have is i'm not a lawyer, so as a historian i look at the context of the judiciary and the constitution in terms of american history. the fact is... and i'll just give you two examples. judge beery's ruling on june 1 that he would jail the superintendent if anybody at the high school graduation used the word "benediction," used the word "invocation," asked for a moment of silence, asked the audience to stand or mentioned god. he would jail the superintendent. that's such an anti-american dictatorship of speech that there's no reason the american people need to tolerate a federal judge who is that out of sync with our entire culture. so you have to ask the question, is there any alternative? what's the recourse? one recourse is impeachment. the supreme court literally inserted the american civil

liberties onto the battlefield. now, this is the opposite of world war ii, where franklin roosevelt told the supreme court through the attorney general that the 14 german saboteurs that had been picked up in u.s. would be tried by military tribunal and executed, and that he would not tolerate a writ of habeas corpus as commander in chief. so you have this real problem that since 1958, when the warren court asserted by itself that the supreme court was supreme over the president and the congress, you've had a fundamental assault on our liberties by the courts. you have an increasingly arrogant judiciary. the question is, is there anything we the american people can do? the standard answer has been, eventually, we'll appoint good judges. i think that's inadequate. the constitution promises a balance of the judicial branch, the executive branch and the legislative branch. the federalist papers say specifically the weakest of the three branches is the judiciary.

jefferson abolishes 18 out of 35 federal judges. >> schieffer: they had just been created. >> and they've been appointed. he abolishes them. over half of all the judges. jackson says of the court, they think the bank of the united states is constitutional. i don't think it's constitutional. their opinion doesn't matter to me. i'm the president. he vetoes it. lincoln spends part of his first inaugural, because people tend to forget the supreme court in dred scott ruled that slavery extended to the whole country. lincoln said very specifically, that's the law of the case, it is not the law of the land. nine people cannot create the law of the land or you have eliminated our freedom as a people. >> schieffer: mr. speaker, you know, the old saying in legal circles is that the supreme court is not last because it's right; it's right because it lasts. because it's last. there comes a point where you have to accept things as the law of the land. how does the president decide

what is a good law-- and i'm going to obey the supreme court- - or what's a bad law and i'm just going to ignore it. >> it depends on the severity of the case. i'm not suggesting that the congress and the president review every decision. i'm suggesting that when there are decisions in which they are literally risking putting civil liberty rules in battlefields. i mean, it is utterly irrational for the supreme court to take on its shoulders.... >> schieffer: but.... >> it's a violation of the constitution. >> schieffer: brown versus board of education was a very controversial decision. there were a large number of people in the united states that didn't want to do that. are you saying that, had the president been so disposed, he could have just ignored that? >> i'm saying in the case of dred scott, which was an equally important and terrible decision- - remember the court is sometimes right and sometimes wrong. >> schieffer: that was then, this is now. >> no, no, no. you can't be sure what the next court will do. the question is, as a people, do

we have a right to... take the 9th circuit court which ruled the "one nation under god" was unconstitutional in the pledge of allegiance. do we as a people where over 90% of the country believe that's false. the senate and the house overwhelmingly rejected it immediately. they have a vote almost immediately. overwhelming rejected it. >> schieffer: here's another one. this is now. next year, the supreme court is going to take up obama's health care proposal. what if they throw it out? can president obama then say, "i'm sorry, boys, i'm just going to go ahead and implement it." could he do that? >> the key question is what would the congress then do? because there are three branches. >> schieffer: could he do that? >> he could try to do that and the congress would then cut him off. here's the key. it's always two out of three. if the president and the congress say the court is wrong, in the end, the court would lose. if the congress and the court say the president is wrong, in the end, the president would lose. in the president and the court agree, the congress loses. the founding fathers designed the constitution very

specifically to have a balance of power, not to have a dictatorship where any one of the three branches. >> schieffer: let me just tell you what several people have said about this. when the "des moines register" announced it was supporting mitt romney, one of the reasons was because he does not pander to extremes with attacks on the courts. and a number of conservatives, including two of george bush's attorneys general-- alberto gonzales and michael mukasey-- both said, and i'm going to quote what mr. mukasey said, and he told this to fox news. not to "mother jones" but to fox news-- he said, "mr. gingrich's proposal is dangerous, ridiculous, totally irresponsible, outrageous, off the wall and would reduce the entire judicial system to a spectacle." now that's a conservative judge... or a conservative attorney general. how do you respond to that? >> i think many lawyers will find this a very frightening idea.

they've had this run for 60 years of pretending that judges are supreme. that they can't be challenged. the lawyer class defines america. we've had rulings that outlawed school prayer. we've had rulings that outlawed the cross. we've had rulings that outlaw the ten commandments. we've had a steady secular drive to radicalize this country away from all of its core beliefs. i mean, what got me into this was the 9th circuit saying the "one nation under god" is unconstitutional. we live in a country where judge beery can literally say "i will put you in jail for saying the word 'benediction'," there's something profoundly wrong with the judicial system that has moved to that kind of extreme behavior. >> schieffer: but i would also add that what happened in that case is that an appeals court overturned that judge and the system worked. >> no. the local school board ended up paying large legal fees. let me give you an example of how much this "elitism" permeates the system. the house franking commission

says members of the house cannot say "merry christmas" in their official correspondent. this is absurd. but it's part of the same elite anti-religious belief structure which leads the courts to define that you're supposed to take down the mount soledad cross in san diego, even though it's an historic cross. i'm just suggesting to you, i got into this originally because of two things. the steady encroachment of secularism, through the courts, to redefine america as a non- religious country, and the encroachment of the courts on the president's commander in chief powers, which is enormously dangerous. >> schieffer: let me just ask you this and we'll talk about enforcing it. because one of the things you say is that if you don't like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. some people say that's unconstitutional. but i'll let that go for a minute. from a practical standpoint, how would you enforce that? would you send the capital police down to arrest him?

>> if you had to. >> schieffer: you would? >> or you would instruct the justice department to send the u.s. marshal. let's take the case of judge beery. i think he should be asked to explain a position that radical. how could he say he's going to jail the superintendent over the word "benediction" and "invocation"? i would then encourage impeachment. but before you move to impeach him, you'd like to know why he said it. clearly, since the congress has.... >> schieffer: what if he didn't come? what if he said, "no, thank you i'm not coming"? >> that is what happens in impeachment cases. in an impeachment case, the house studies whether or not... the house brings them in, the house subpoenas them. as a general rule, they show up. you're raising the core question. are judges above the rest of the constitution? or are judges one of the three co-equal branches? >> schieffer: isn't the other side of that, are the rest of us above the constitution and obeying the law? at some point, you have to say this is a nation of laws and we all have to.... >> we do.

i'll go back to lincoln, who people generally think respected the law. lincoln explicitly instructed his administration not to enforce dred scott. he said it's the law of the case and not the law of the land. it's in his first inaugural. if you go to newt.org, there's an entire paper outlining the history of this case because i knew i was launching a topic that no other presidential candidate in modern times has launched. i know it had to be intellectually defended. >> schieffer: that's why i'm spending so much time on it here. it's fair to say, i think you would agree, mr. speaker, that the judicial system is already under enormous strain. it's almost impossible now to get a federal judge, or certainly a supreme court justice confirmed. we go through these long, drawn- out things. i think there are 80-something judgeships that are vacant right now out of 800. that's a tenth, i guess. wouldn't this just add to this? wouldn't it just throw the entire system into chaos? i mean just sort of bring all

three branches to a screeching halt? >> we are... >> schieffer: and a constitutional crisis. >> this is why the 2012 election is really important. the reason we are so deadlocked is that you have an elite who still has an enormous amount of power. they would appoint very radical judges. you have the vast bulk of the american people who are opposed to that. but they don't have enough power yet to stop the elite. one of the key questions in 2012 is simple. do you want to move towards american exceptionalism, reassert the constitution, reassert the nature of america, or do you in fact want to become a secular european bureaucratic socialist society? as long as these two sides are fighting, this is not because people have bad personalities or because people are incompetent. there is a fundamental conflict underway about what kind of country we're going to be. >> schieffer: we're going to take a break and talk about something else when we come back in a minute.

>> schieffer: we're back with the republican frontrunner newt gingrich. mr. gingrich, the "wall street journal" had a particularly scathing editorial about your ties to freddie mac yesterday. they said that one problem you had was a lack of candor, and that more damaging than your opponent's criticism of your ties to freddie mac, because you did work for them-- your opponents say as a lobbyist, you say as a consultant. they said what the journal says is that "mr. gingrich does not understand why anyone is offended." they say "you would help your candidacy if you stopped defending your freddie payday, admitted your mistake and promised to atone as president by shrinking fannie and freddie and ultimately putting them out of business." >> i think candidly that editorial by not stopping and handling this and laying it out. the facts are i didn't personally get that kind of money. i went to a consulting firm which had offices in three cities.

the share i got was relatively small. we did consulting advice. the only thing i ever wrote for freddie mac that was ever published said as part of it they need more regulations. the only time i've talked to the congress and to the republicans in congress was in july of 2008. and i said vote against the bailout. i said "do not help freddie mac and fannie mae. this is not something you should do." i was supporting john boehner in his opposition to a bailout bill for fannie and freddie. the actual record is much closer to what the "wall street journal wants. i favor breaking both of them up. they should each devolve into four or five companies and they should be weaned off the government endorsements because it has given them both inappropriate advantages, and because we now know from the history of how they evolved that they abused that kind of responsibility. >> schieffer: did you, while all this was going on, know that there was something going on? we just had six executives of

fannie mae and freddie mac who were just indicted... but a civil lawsuit, fraud suit was filed against them for misinforming people about this. did you at the time suspect that there was something wrong here? >> i think that civil suit tells you what was going on and why it was wrong. nobody is walking in and telling me, "look, this is how dumb we're being. this is the size of the risk we're engaged in." do i think that there's a purpose to try and help poor people get into housing? yes. i started out i think in 1994 with habitat for humanity. we actually got one of the companies to help try to get every member of congress to build one habitat house. my motto was to help the poor earn their housing, not to try to give them housing they couldn't afford. and i kept trying to find a way to use conservative principles to help poor people acquire housing, which i think is still a worthy goal. >> schieffer: let's talk about another big issue in the campaign. that is immigration.

mitt romney has taken such a hard line, it seems to me, on immigration that some within the republican party are saying, he is simply running off hispanic voters. do you agree with that? >> i'm not going on comment on governor romney. i will say that i do not believe that the american people are going to tolerate going after somebody who has been here 25 years, who has a family, has children and grandchildren, belongs to a local church. what i proposed is very standard things. control the border by january 1, 2014. make english the official language of government. go to a much better visa program that's much... that makes it more desirable to visit the u.s. legally. go to a much easier deportation program to move people out who shouldn't be here. have a guest worker program outsourced to american express, visa or master card, so that you know that fraud is very unlikely. and have much steeper penalties for employers who hire people illegally. in that context, what i've said,

which i think most people think is common sense, which is there is a group of people who have been here a long time. we've talked about creating a citizen review board in the world war ii selective service model... >> schieffer: could you... >> one last thing. if somebody has been here a long time and has an american family willing to sponsor them, they should be subject to review to get a residency permit-- not citizenship, but a residency permit. i disagree with some of my friends. i do not believe the american people are going to send police out to round up folks who have been here 25 years. >> schieffer: that's the question i'm coming to. there are 11 million of these people. i mean, what are you going to do with them? you can't build that many prisons to put them in. you can't get that many buses to haul them back. >> my guess is that seven or eight or nine million would go home and get a guest worker permit and come back under the law. the last million or two are people who have been here a very long time. they are really part of the community. they're not citizens but they're part of the community. the folks, you and i may well know some of these folks.

and 25 years ago, they did something wrong but they've been very good neighbors. they belong to the local church. as i said, one of the requirements would be they have to have an american family sponsor them to be eligible for review by the citizen review board. i think it's a responsible position that recognizes the humanity of the problem, but firmly establishes the rule of law. >> schieffer: the last american troop left iraq today overnight. i just wonder at the end of this long war, do you have any thoughts on that? >> well, i said in december of 2003, both on "meet on press" and on "newsweek," that he had gone off a cliff. ambassador bremer had given us an assignment that we couldn't do. i think we're going to find through our great sadness that we've lost several thousand young americans and had many thousands more wounded undertaking a project we couldn't do. last week, when maliki visited the president, one of the people in his entourage was a commander in the iranian revolutionary guard.

i mean, people do not understand how much the iranians have penetrated iraq, and that the vacuum we've created will lead to, i think, a very, very unstable and very unpleasant environment in iraq. >> schieffer: we have just a short time left. let me just ask you, did you think six months ago that you would be where you are today? >> you know, when i came on the show at one point and it was, as we were sliding down, and i thought i could fight my way back up to being in the top three or four. but i think positive ideas and positive solutions, the contract we laid out at newt.org has attracted people. i think they like the idea of somebody who is determined to be positive. >> schieffer: mr. speaker, thank you again for coming this morning. i'll be back with some final thoughts in just a minute.

>> schieffer: finally today, after watching congress flounder around for an entire year and manage to accomplish nothing, i've come up with my own reform plan. just create a second congress. how do you do that? well, it's a campaign year. you can promise anything. but here's the broad outline of how it would work. members of this new congress would be elected for one year and barred from ever running again. since no one would have to worry about re-election, they could dive into all the heavy lifting- - entitlement reform, deficit

reduction, tax policy, and rebuilding our roads and bridges and schools. it's not exactly a new idea. i sort of modeled it on the first congress. getting re-elected was the last thing on those guys' minds. they were worried about being hanged if it didn't work out. so they put all their chips on the line and went for it. with my new congress doing the work, what would we do with the old congress? well, they'd still be there. we'd just strip them of all power and no longer pay them. with nothing to do, they could devote themselves full time to what they do best-- plotting against one another, dumbing people for money, cranking out press releases, issuing declarations, dreaming up excuses, threatening to shut down the government every month or so, and otherwise finding ways to avoid doing anything that actually mattered to anyone but them. since it would no longer cost us anything, instead of feeling disgust, we might actually be moved to look kindly on them.

we might even say, "now, that's entertainment." back in a minute.

>> schieffer: that's it for us today. we'll see you next sunday right here on "face the nation" when we'll bring in our correspondents from around the world and take a look back at the headlines from 2011 and a look forward to next year. thanks for watching. captioning sponsored by cbs captioned by media access group at wgbh access.wgbh.org ♪ secondhand smoke affects everyone's health.

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