Re: Family Research Council Unhappy with Rudy: Judges Matter

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The Supreme Court of the United States has just upheld the partial birth abortion ban, which makes this the first significant federal legislative restriction on abortion since Roe.

Some social conservatives say it is not enough for Giuliani to say he will appoint judges like Alito and Roberts. They especially did not like that the Mayor allowed as he found it conceivable a strict constructionist judge may uphold Roe via stare decisis. This partial birth decision, though, would not have been decided this way were it not for the presence of, specifically, Alito and Roberts.

Well, here we have a sterling example of how important judicial appointments are. Granted, this situation is not ideal. Abortion should be a state legislative issue, as fetuses remain persona non grata in the Constitution. A presidential candidate’s feelings about it should be as functionally relevant as my mother-in-law’s cat’s. I say this, mind you, as a pro-life individual.

But in the light of this recent decision I find it difficult to imagine how pro-life conservatives can dismiss Giuliani’s “SCOTUS appointee” defense on unborn rights. His alleged faux pas on Federal funding of abortion gets cover here as well. In a moment of humility uncharacteristic for a politician Hizzoner simply affirmed he would uphold the Constitution as interpreted by the Supreme Court of the United States.

So even if the mayor needs to simultaneously insert language indicating he will assess potential Court appointees based on legal philosophy rather than abortion litmus tests, it seems pretty obvious to me that pro-life activists should be comfortable with a Giuliani presidency.

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One Response to “Re: Family Research Council Unhappy with Rudy: Judges Matter”

  1. Luther C. Hardy Says:

    Dear Karlub:

    I agree with all that you say, particularly that “[a]bortion should be a state legislative issue”. I also agree that a President is sworn to uphold the Constitution as the Supreme Court interprets it, and I agree with Rudy that even a “strict constructionist justice”, even Roberts and Alito (I would add), might uphold Roe v. Wade on the basis of stare decisis, a la Planned Parenthood v. Casey. At the same time, I find an “abortion litmus test” for a Supreme Court appointment to be abhorrent.

    That said, I thought you might be interested to see a recent piece I wrote on this issue. Please bear in mind that, like you, I write as a pro-life individual.

    The Abortion Debate in the Presidential Campaign

    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!

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