Re: Rothenberg on GOP Primary Field


I had an e-mail exchange with someone who was a little skeptical about the Mayor’s chances of winning the GOP primary due to his ideological impurity on abortion, among other issues.  He forwarded me this Town Hall piece by Jacob Sullum to bolster that position.

Sullum derides Giuliani for not having a “rational basis for public policy” on abortion, as Giuliani seems ideologically inconsistent on the subject.  He suggests Giuliani merely appears to find abortion “icky”.  Sullum furthermore suggests that support for the Hyde amendment outlawing partial birth abortion– which the Mayor now backs– is inconsistent with Hizzoner’s assertion that he will seek to appoint strict constructionists to the Supreme Court.  What Mr. Sullum and a great many op-ed writers seem to discount is that the Mayor’s position on abortion is pretty much identical to that of a large majority of voters, both Democrat and Republican.

We think it is “icky”, to use Sullum’s phrase.  Some of us find it to be more tragic and downright evil than others.  But most Americans realize there are a whole lot of people without strong religious faith, and/or strong social safety nets, who will desperately fight to preserve abortion as an option.  Furthermore, the issues of constitutional law now muddying the waters because of the egregious Roe v. Wade decision force people to take legally inconsistent positions, at times.  Those inconsistencies, though, flow as a result of the Burger court’s activist buffonery, not intellectual dishonesty.

Finally, as Stephen Malanga’s oft circulated pro-Giuliani piece from the City Journal documents, Rudy Giuliani enacted policies while mayor of NYC that caused a reduction in abortion, countering the national trend.  Would a person with impeccable pro-life bona fides be able to promise anything more?  Voters, even pro-life ones, understand all this.  They are generally not like Soviet apparatchiks demanding the purge of those less than ideologically pure.  It seems the media– mainstream and otherwise– have more trouble discarding their shibboleths than the average Joe and Jane.


One Response to “Re: Rothenberg on GOP Primary Field”

  1. Luther C. Hardy Says:

    I commend to you all Prof. Ann Althouse’s guest column on the Op-Ed Page of The New York Times, Saturday, 24 February 2007. I almost stopped reading after the first paragraph or two because the column began to sound like just another anti-Rudy screed from the Liberal NYT by a law professor at the University of Wisconsin. Ho-hum, I thought. Well, now I’m glad I persevered and read the whole thing.

    By the time I finished the article, I thought it to be a very sophisticated “take” on current Presidential Politics, as seen through the two prisms of “the abortion debate” and Rudy’s campaigning philosophy. Since the full article is too long for this space, and is available only on “Times Select”, to which many do not subscribe, I will try to give you the gist of the piece:

    “Rudy Giuliani did an elaborate dance the other day. Speaking in South Carolina, he said that ‘as a lawyer,’ he liked having ‘strict constructionists’ on the federal courts. But he didn’t specify what he wanted those ‘strict constructionist’ judges to do with Roe v. Wade. Instead, he shifted to talking about how it’s ‘part of our freedom’ for the legislatures in the various states to make their own decisions about law.”

    “If you’re already opposed to Giuliani . . ., I’m sure the ridicule practically writes itself. Something so convoluted has got to be manipulation. Right? Compare [him] with straight-talking John McCain, who said: ‘I do not support Roe v. Wade. It should be overturned.’ That’s harder to mock.”

    “But it is the candidate who sets out to deceive us who has the most reason to keep it simple. By contrast, complexity may signal that the candidate is actually trying to tell us something about how he thinks. He may have a sophisticated grasp of the role of the executive in relation to the courts and the legislatures. We might do well to tolerate some complexity.”

    “What should a candidate say about abortion? . . . To deserve the trust embodied in appointment power, the president should have a sound understanding of the judges as independent decision makers who follow an interpretive methodology that operates differently from political choice.”

    “So instead of smirking, we should welcome the kind of complicated statements we’re hearing from . . . Giuliani. Any individual who is offering to wield presidential power should resist assuring us about what his judicial appointees will do. To do otherwise is to tip us off that he means to populate the judiciary with politicos.”

    “Giuliani respects the distinctive work of judges and the separate role of the state legislatures. If Roe were overruled, those legislatures would decide how to regulate abortion. And decentralized legislation really is fairly called ‘part of our freedom’ because the Constitution’s framers saw the balance of power between the national government and the states as a safeguard against tyranny.”

    Rudy really has worked out a governing philosophy based on “decentralized legislation”, i.e., “Federalism” (today’s commonly accepted term), i.e., “States Rights” ( the “old fashioned”, and the more precisely accurate, term), which will allow Americans of greatly divergent views to come together under his banner. Moreover, it is the perfect formula through which socially conservative voters can effectuate the implicit “bargain” they are still in the process of “working out” with Rudy’s candidacy, because they WANT his leadership, and they know, in their heart-of-hearts, the country NEEDS that leadership.

    Now, I firmly believe that Roe v. Wade should be overturned, despite the valid points made in the Casey opinion, because it is abominable Constitutional Law. It infringes on the sovereign police power of the individual States and perverts the Constitution by usurping the legislative function. If Rudy does indeed appoint “judges like Scalia, Roberts, and Alito”, I fully expect that’s what will eventually happen. Those who see in Roe only the substance of the “legislative code” it lays down with respect to abortion, however, should take heed. If Roe is indeed overturned, then 50 State Legislatures will decide the “abortion issue” for themselves. I believe that is exactly where the decision should be made because the political authority to regulate personal conduct lies squarely within the police power of a sovereign State.

    Many States, though, will permit abortion – the last count I saw put it at something like 35 States – and some may even enact laws that “go further” than Roe. What this illustrates yet again is the political genius of the Founding Fathers who worked out a system of decentralized legislation as a means of governing a diverse and fractious nation. In this same vein, in my judgment, the only aspect of the “abortion debate” that fairly belongs at all in a national Presidential Campaign is exactly the political aspect, the aspect of federalism or decentralized legislation.

    In my further judgment, the most profound words on the “abortion debate” as a political issue were written by David Brooks in is Op-Ed Column in The New York Times on 21 April 2005. The gist of that column:

    “Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.”

    “When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.”

    “Instead, Blackmun and his concurring colleagues invented a right to abortion, and imposed a solution more extreme than the policies of just about any other comparable nation.”

    “Religious conservatives became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists.”

    My ultimate conclusion: Run Rudy Run!

    Cross-Posted from “Race 4 2008” (

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