ConfirmThem

first off he agrees that the framers didn't intend it

he simply goes on to say that there's lots of things that the framers didn't intend which for better or worse are part of the legal landscape, i/e the two examples he gave, i.e the expanded commerce power, i.e. much of the equal protection jurisprudence, i.e much of the due process jurisprudence.

the question is what do you do about it? even many conservative judges don't just go on a tear and reverse every case they get their hands on. Thomas is in the minority when it comes to that. And even he doesn't always go that far.

As for Rudy, if you care about abortion, he's clearly not your guy and never was and never will be. None of this is exactly a surprose.

That said, for someone who's pro choice, I don't think he particularly cares all that much about it and it's not really up there in his list of priorities. If it was he wouldn't have campaigned for and endorsed George W Bush in 2000, been arguably his strongest supporter in 2004, traveled the country supporting him, given the main speech at the 2004 concention supporting him, supported and campaigned for other strong pro life candidates like Rick Santorum, Allen, Dewine, Talent, etc..., strongly supported the nominations of both Roberts and Alito, and if Stevens had retired last year would have supported the 5th vote to overturn Roe. I can't think of anybody who really cares about abortion rights and supports them who would do those things, and more. Just like I can't think of anyone who really cares about the pro life side of things who would have done the same for Kerry and Gore and numerous prochoice Senators and Congressmen.

If having a President who you can count on 100% to appoint a judge who will reverse Roe is your top priority, then he's not your guy. Then again, Pro Life Presidents have messed up with O'Connor, Kennedy and Souter. Perhaps, it would happen again and Rudy would mess up and end up with a more conservative judge than he planned for. Stranger things have certainly happened.

The expanded commerce power and the equal protection jurisprudence are at least tied to actual constitutional language. The framers may not have expected SCOTUS to interpret those clauses exactly the way SCOTUS has done, but still there's a plausible basis in the text and original meaning.

Roe v. Wade is nothing like that. It is a complete departure from the text of the Constitution. A usurpation, plain and simple.

Anyway, while I certainly don't want to criticize Giuliani unfairly (especially if he's the only Republican who can win), his comparison of Roe to various prophylactic rules is just way off base.

I think it is obvious that Giuliani would try to pick judges who would not interfere with the "right" of a woman to choose an abortion. The only way that "right" could be maintained is to choose judges who pay undue respect to stare decisis and/or do not support the concept of federalism, both foundation stones of modern conservative jurisprudence. Giuliani might nominate judges are strong on law-and-order and global terrorism issues, but that does not mean those judges are conservative politically and/or orginalists and textualists in their preferred method of constitutional interpretation.

Undue respect for stare decisis means that many New Deal and Warren Court precedents that were wrongly decided will remain on the books. This cannot be tolerated. A preference for deference to stare decisis concerning Roe would logically lead to a deference to stare decisis concerning a whole host of other intolerable past Supreme Court decisions.

Also, anyone who will not attack Roe based upon its federal usurpation of state power will likely not attack the federal government on its overweaning involvement in issues it has no constitutional right to regulate. This again is disturbing.

In conclusion, no matter what lip service Giuliani may give to the names of Scalia, Roberts or Alito, it logically appears that the type of judges that Giuliani would nominate would not try to promote a correct interpretation of the Constitution. This makes Giuliani unacceptable as a presidential nominee.

Must say that, for once, I am in full agreement with Rudy. Miranda and the exclusionary rule are completely inconsistent with any kind of intellectually honest originalist understanding of the Constitution. I for one would shed few tears if they, along with Roe v. Wade, were relegated to the dustbin of constitutional history.

After listening to the whole interview, I'm scratching my head. In effect, he's saying, "look I don't have to take a principled position on Roe or Miranda or Escobedo as long as the Supreme Court can tinker with them and soften them up around the edges." He's simply hoping that voters are more concerned with other issues and that the "personally opposed, publicly support" position on abortion will work in the primaries for him to get by. All I can say, after deep consideration, is "blech!"

I think he'd be at the top of a potential President Giuliani's list for SCOTUS candidates, though 3 Jewish justices might raise even more eyebrows from the bigots on the left than 5 Catholic ones (assuming he'd not be a replacement for Ginsburg, especially if she's the next to go). and 2 US Attorneys from New Jersey might raise eyebrows too, heh (and 3 Joisey boys counting Scalia). I don't know if he'd be on the conservative (neutral) side on social issues or not though.

Somewhat relatedly, I was reading the resources linked for Hinojosa, and while like AG Gonzalez and Sec. Chertoff, I have no idea where he stands on socail issues, I think he'd be similarly strong on war on terror and executive power issues, against terrorists' "rights", etc, and on criminal issues. Talking baout Vietnam in one of those interviews, he sounded so much like Alito in his testimony about the protests while he was at Princeton that I had to smile. It does make me wonder why the Dems recommended him

Helveticus,

Your analysis of Rudy assumes that GWB was in fact pro-life. That is just an assumption.

GHWB claimed to be "pro-life." He installed a party chairman who declared 1990 to be the year of "pro-choice, moderate women." When Roe was reaffirmed in Casey, GHWB praised the decision. When his appointment of Souter saved Roe, Bush did not claim he made a bad selection, rather he claimed that Souter's appointment was proof that he wasn't the ideologue out the stack the court as he had been falsely portrayed.

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives demand true conservative leadership.

Bobo,

I suppose that in 2000, you also believed George W. Bush was an unacceptable presidential nominee. After all, he had exactly the same position on Supreme Court nominees as Giuliani, but was embraced by the social conservatives because he had the correct position on abortion. Yet, his first two nominees to the Supreme Court were John Roberts who has paid more lip service to precedent and stare decisis than any Supreme Court justice (maybe ever) and Harriet Miers whose position on stare decisis we never got to find out (thank God) but who was unlikely to be on the same page as Justice Thomas.

My point is that with any Republican president, (from Eisenhower to Bush), you are unlikely to get a sure thing. Still, the big difference is between the nominees of a Republican and a Democrat president. If a vacancy were to open up under Giuliani, the watchful (and skeptical) eye of conservatives would force him to pick someone who would be at worst like O'Connor and Kennedy and at best like Roberts or Alito. With a Democrat, you would see Stevens and Ginsburg and potentially Kennedy and/or Scalia (people have been known to die in their 70s) replaced by radical liberals like Paez and Berzon who could build a new liberal majority that would create a dozen new Roe v. Wades such as a constitutional right to gay marriage, free housing, gov't health care, et al. Not to mention that we are fighting a war and a liberal Supreme Court could easily neuter our ability to win that war or to stop a ghastly attack (potentially with Iranian nukes) on our cities.

With all this on the line (not to mention all the non-Scotus issues), I find it sad that someone as intelligent as you (I've been reading the comments here for a couple of years) believes Giuliani is UNACCEPTABLE because his judges would have "an undue respect for stare decisis" and wouldn't overturn New Deal and Warren Court era precedents. If you think those precedents are bad, just wait for the 2011 decisions of a liberal court full of both Clinton appointees.

The 2008 presidential race is a must win for 100 different reasons. The consequences of a Democrat victory would be utterly disastrous and I would gladly accept strong law-and-order and global-terrorism judges (although almost all of those are good on other issues) if President Giuliani can accomplish in Washington half of what he did here in NYC.

You have to admit that Miranda warnings and the exclusionary rule are directed at protecting specific, enumerated rights. In that regard, they are completely different from Roe, which is not directed at protecting any related right in the Constitution.

I agree that there are constitutional issues about the legitimacy of prophylactic rules, but the illegitimacy of Roe is in a completely different league, it seems to me. Comparing them is like comparing raisins and watermelons.

The Fifth Amendment, of course, says that a person shall not be compelled in any criminal case to be a witness against himself. Before Miranda, the Court had a totality-of-the-circumstances rule to determine if a confession is voluntary or not. Then, when Miranda came along, the Court instead formulated a different rule for determining if a confession was compelled: whether the police read the Miranda warnings. As Rehnquist said in Dickerson, "the totality-of-the-circumstances test ... is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner." I wish that the Miranda test would be watered down to a mere presumption, but either way there's an actual, specific constitutional right that's being protected.

It's frustrating for me that so many judicial conservatives seem to be equally against so much of the Court's current jurisprudence. Can't we prioritize, and object loudest about decisions that have the least legitimacy, and object softest about decisions that have the most legitimacy? If we scream about everything, then it's the boy who cried wolf.

As for the exclusionary rule, again we have the specific language of the 4th Amendment that's being supported and protected. This seems legitimate in at least some cases. If a person has a right to be secure in his papers and
effects against unreasonable searches and seizures, it doesn't take a genius to figure out that, if an unreasonable search and seizure occurs, then a person may have a right to get his papers and effects back. Right?

It seems to me that there are express constitutional rights, implied constitutional rights, and completely bogus constitutional rights. Roe falls in the last category, and I'm not sure that Miranda and the exclusionary rule always do too. If and when they do fall in that last category, at least it's mitigated by actually protecting a specific enumerated constitutional right, and does not serve as a precedent for the Court doing whatever it damn well pleases.

I thought the same thing when I ready the links re Hinojosa. I came away liking him a lot more and thinking he might be a very good SCOTUS possibility. He certainly sounds quite conservative in that 1997 interview.

http://www.nationalreview.com/comment/lott200507191302.asp

Before Bush nominated John Roberts to be Sandra Day O'Connor's replacement, "Democrats suggested the names of three sitting judges: Ricardo Hinojosa, Edward Prado, and Sonia Sotomayor. The problem is that in the same breath that the Democrats acknowledge that Bush will appoint a conservative, the Democratic senators may be only ones that might view their suggestions as conservative."

A, "measure [of the conservatism of these three judges] is provided by The Almanac of the Federal Judiciary, which surveys courtroom lawyers on the political views of the judges they encounter in their litigation. The survey asks lawyers whether the judge is "liberal," "moderate," "conservative," "libertarian," or "neutral." Given that these are lawyers (a fairly liberal group being surveyed), it is possible what they view as "moderate" might be considered "liberal" to most other Americans. The survey rates Sotomayor as either a "moderate" or "neutral "politically and Ricardo Hinojosa as a "moderate" — no lawyer who argued before them considered either one "conservative." Only Edward Prado is viewed by any of the practicing lawyers as "conservative," and views of him are evenly split between being "conservative" and "neutral.""

You assume Giuliani is the only possible way that the Republicans can win in 2008. I disagree. Although I have not yet definitively chosen to back any one particular Republican candidate, I am leaning toward Romney.

To begin with, I think all three of the leading Republican candidates - McCain, Giuliani and Romney - are in some sense wildcards. To make my present choice (which might change later as circumstances change), I first looked at the three candidates' social liberalism. I think Giuliani is the most socially liberal (at least taken from his own actions as NYC mayor) and that bothers me. His subtle manipulation of defining "strict constructionist" as "someone who respects stare decisis" and doesn't respect "federalism" is merely icing on the cake that makes him unacceptable to me.

McCain bothers me not so much because his votes as a senator, but because I don't think he is electable if he continues to tie his campaign so closely to the war in Iraq. I think America unfortunately doesn't have the intestinal fortitude to continue in Iraq. Rightly or wrongly, I view the 2006 election results as representative of this Iraq "malaise". I think America, however, would be willing to elect a conservative as long as he was not actively involved in making decisions concerning Iraq like McCain has been. That is why I think Romney may have more viability than McCain as a candidate in the long run. If McCain becomes the nominee, the Dems will make the election all about Iraq which would be a bad thing for Republicans as long as suicide bombers continue to blow up 10-50 people a day. Romney just seems to have a more "fresh face" appeal than McCain. I must say, however, that I am still not totally certain about Romney and judges and my opinion of him may change later.

from the end of SCOTUS session (final decisions, etc.). While I look forward to the potential of an ever building fever swamp of retirement rumor mongering, I trust the new CT.com format will preclude Insider and anyone of his/her ilk from messing with our heads.

The last day of the present SCOTUS term is Monday, June 25th. My assumption is that if there is a retirement (and I don't think there will one) that it would probably occur either on Friday, June 29th, or Monday, July 2nd.

I know all that, and it probably is correct, though Reid could just as well be wrong about him as he was, IMO, about Miers regarding his conservatism; where he very probably was right about both is that neither would have been a particularly memorable justice; but we could certainly do worse, especially from a President Rudy. I merely brought him up in string of consciousness going through Chertoff and Gonzales in thinking about the type of Justice Rudy might appoint (though Hinojosa in particular, being 3 years older than Chertoff and of some less note, would seem unlikely). Aside from that, noting something that seemed positive about him and comparable to Alito, wasn't meant to be an endorsement (though since there seems to be more to learn about him than the other Dem suggestions of Sotomayor or Prado, I'd be more receptive to his suggestion, if not his nomination outright, and to see where that leads us).

Here's an article about the Selya seat on the 1st Circuit:

Selya, 72, of Providence, said that 14 months ago, when he announced that he’d be assuming senior status on Dec. 31, he “hoped it would give the political establishment time to fill the seat.”

With no successor in sight, Selya has maintained a full caseload. “I enjoy it,” he said. “I’m not complaining, but talk to my wife and you might get a different story.”

Kudos to Judge Selya.

The problem is the RI seat on the 1st is just about the least likely to get filled in the next 2 years.

"As for the exclusionary rule, again we have the specific language of the 4th Amendment that's being supported and protected. This seems legitimate in at least some cases. If a person has a right to be secure in his papers and
effects against unreasonable searches and seizures, it doesn't take a genius to figure out that, if an unreasonable search and seizure occurs, then a person may have a right to get his papers and effects back. Right?"

Hmph. I might be mistaken, but I was under the impression that the rule had to do with bringing evidence to trial, not getting your stuff back.

Well, if you have a right to get your stuff back right away, then that can sometimes prevent said stuff from being used at trial. That's all I meant. ---Andrew

I didn't say Giuliani was the only *possible* way that the Republicans can win in 2008. My point was that it is unfair and foolish, with all that is stake, to rule someone out as unacceptable because you suspect their judges might be more observant of stare decisis principles than you or I would prefer.

The way Giuliani describes his ideal nominee makes it obvious that he will pick someone exactly "in the mold" of John Roberts and Sam Alito, highly competent and careful conservatives with no public opposition to Roe or Warren era precedents. (Edith Jones or William Pryor, for example, are not going to be nominated by a President Giuliani). As he correctly explains, such justices may very well vote to directly overturn Roe, or possibly, they may slowly wear Roe and other bad precedents away with decisions like Gonzales v. Carhart or the likely upcoming decision on campaign finance.

I can live with either scenario and I continue to be very happy with how Roberts and Alito are turning out. If we could get someone like that to replace Stevens, we would see the court shift to the right. If, instead, a Democrat somehow gets to replace Scalia or Kennedy, we will see a dramatic shift to the left because the liberals have no compunction about using (and abusing) all the levers of power they control.

The difference between these two outcomes is so huge that nitpicking whether Romney or Giuliani gets to make nominations is absurd. Given that the Republican nominee will have to take on both the Democrats and the media in 2008, the best approach is to find out which of the candidates who would make a good president is most likely to overcome those odds and to support that person. I think that Romney, Giuliani, Fred Thompson, Gingrich and a few of the third-tier candidates (Hunter, Gilmore), not to mention Cheney and Jeb Bush, would make good or excellent presidents, but Giuliani is both most likely to overcome those odds and to really stir things up in Washington, the way he did in NYC and the way Bush didn't do back in Austin in the 90s. Positions on issues can easily be tailored for political expediency (see Mitt Romney), but a record of accomplishment can't be made up and it's what really counts.

As I said before, I have not definitely chosen to support any one candidate. I have decided, however, that Giuliani is too socially liberal for my tastes. Although bigskybob has declared me to be a moderate, I'm do have my limits. You might be totally right that Romney is merely tailoring his positions for political expediency right now while Giuliani is openly expressing his, but at least at the moment I am more comfortabel with Romney's positions.

The road to the White House is going to be extremely long this election cycle, and a lot can change during that time. We will see how things play out in the next ten months. Due to the accelerated primary schedule, we should know more about the candidates earlier than we ever have before. The candidates' positions on many important issues should be much clearer by next February when most of the important primaries will be held. I might change my mind a million times between now and then.

I could easily see Debra Livingston as the last Bush COA nominee confirmed from a state with two Democrat senators. I think the Rhode Island, New Jersey, Maryland, California and two Michigan seats will not be filled this congress.

Well, my sig file pretty much sums up how I feel on Guiliani. If he's the GOP nominee, then I'll do my best to sell him to as many people as I can, but in the primary, I'll go Fred or Romney ... they are currently about equal to me although I think Romney's health care plan can win over a lot of people in the middle.

Romney or Fred in the primaries. Any Republican in the general (even Guiliani).

Currently writing non-political stories over at first-cut-stories.blogspot.com

Here's the transcript of another Giuliani interview, this time with Chris Wallace, in which the issue of judges and Roe comes up.

http://www.foxnews.com/story/0,2933,271917,00.html

Here's the critical excerpt relevant to the discussion we've been having:

WALLACE: But would you personally be disappointed [if Roe were overruled]?

GIULIANI: I don't think it's a question of being disappointed or being happy about it. I think it's a question of not wanting to make this a litmus test for judges, so that a judge feels free to listen to the facts, listen to the arguments, and come to the decision they think is the correct interpretation of the Constitution.

Some strict constructionist judges are going to decide it was wrongly decided. Other strict constructionist judges may give more weight to the precedential value of it, the fact that it's been the law for this length of time.

And if you read Justice Kennedy's opinion for the court in the partial birth abortion ban, you can see the tension there between these two things. And I think the court should be allowed to decide this.

. . . .

WALLACE: Could you nominate somebody, in the whole context of a variety of issues...

GIULIANI: Right.

WALLACE: ... who had indicated an opposition to a woman's right to choose?

GIULIANI: Oh, in the context of their overall record...

WALLACE: Yeah.

GIULIANI: ... and if I thought that on 20 other issues they would be terrific, I might be able to, sure. I don't consider it a litmus test. If you don't consider it a litmus test, you don't consider it a litmus test either way. I mean, it's not — it's not something I would seek an answer to.

I don't think the last couple of presidents who made these appointments considered it a litmus test.

I would consider the following about a judge. Are they someone who interprets the Constitution rather than legislates? Are they someone who seeks the meaning of the words of the Constitution?

A decision like Judge Silberman's decision in the D.C. Circuit is the kind of decision I'd point to where he found a constitutional right to bear arms, went way, way back to the framers, to the Federalist Papers, tried to figure out what did they mean when they put those words in the Constitution that the people have a right to bear arms.

That's the kind of judge I would want. I might not agree on every decision they make, but that's the kind of judge I would appoint.

Ok at least you stopped with the ridiculous talk about your worry that potential Giuliani's SCOTUS nominees will be too loving of stare decisis.

Yet, I do wonder whether how Hillary Clinton or Barack Obama are for your tastes. I guess we'll all find out when in 2010 (and 2020 and 2030 and 2040) you are blasting the opinions written by her or Obama's justices. Maybe the fact that the Republican nominee in 2008 agreed with you on social issues will console you at that time.
Or not.

I don't buy the notion of determining a judge's political philosophy by interviewing some of the lawyers who go before him. I go before numerous judges throughout the year, and by and large I have no idea what their politics are other than the political backing that helped them get their seats. It's just not something that normally comes up in regular litigation practice in court, unless the judge for some strange reason brings it up.

So what do we know about Hinojosa? He was personally conservative at a young age when it wasn't popular to be conservative. It was an ethic in his family that was reinforced by his parents. He was a strong supporter of Reagan and Bush 41, and a friend of the Bushes. He's considered a strict judge and a law-and-order type.

Does any of it mean he's necessarily a judicial conservative and/or an originalist? I have no idea. But I wouldn't disregard the signs of his conservatism simply because empty-headed Harry Reid mentioned his name as an alternative to Roberts/Alito, and because a bunch of lawyers in a courtroom assume Hinojosa is "moderate," whatever that means.

I have to say I do like Giuliani's response. It's not entirely precise, but it is well thought out and if in fact it is true I would be quite confortable with Giuliani's judicial selections.

"Yet, I do wonder whether how Hillary Clinton or Barack Obama are for your tastes. I guess we'll all find out when in 2010 (and 2020 and 2030 and 2040) you are blasting the opinions written by her or Obama's justices. Maybe the fact that the Republican nominee in 2008 agreed with you on social issues will console you at that time."

What type of nasty, sarcastic remark is that? You make some broad assumptions with your little remark. First for clarification's sake, I have no desire to see Hillary or Obama elected in 2008. They are both too socially liberal for me AND both would nominate raging liberals as judges. Second, you again seem to be assuming that Giuliani is the only Republican who can beat Hillary or Obama. Your comment seems to suggest that if I vote for McCain or Romney, I will guaranteeing new justices and judges nominated by Hillary or Obama? That's certainly presumptuous of you to say at this point. All I have said at this point is that I am still basically undecided - with the exception of Giuliani. But who knows what the future holds? I have ten months to make up my mind.

"Th[e Supreme Court] is one very important reason why this conservative Republican is supporting Rudy Giuliani for president. I know the qualities he will look for in the persons he will appoint to the Supreme Court and the lower federal courts: Individuals of talent, quality, experience, integrity, intellect and conscious of constitutional limits on judicial authority; men and women who will respect and defer to the wisdom of the framers of the Constitution and the rights of the citizens to make policy through their elected representatives. Jurists in the mold of Justices Scalia, Thomas and Alito and Chief Justices Rehnquist and Roberts."

http://article.nationalreview.com/?q=N2ViNzlkZWFkNDc5Y2IwN2IzMWZmYmY4NGJ...

I was trying to be sarcastic not nasty. :)

I'm not asking you to support anyone now. We all have X months to choose and we are free to wait until the last minute. Just disagreeing with you that he should be ruled "unacceptable" because he is socially more liberal than you or I may like. I also didn't say you would be guaranteeing President Hillary or Obama, just significantly increasing the chances that this would occur. And given what's at stake, that may not be such a good idea.

Wow and Ted Olson even agrees with me about Giuliani and the Supreme Court.

And if in 2010, 2020 or 2040 if the Court passes a series of social liberal rulings, affirming Roe, declaring homosexual marriage, the forced secularization of schools, etc., should I really care if the socially liberal Presidents who appointed them had a D or an R after their names?

A choice between tweedle-dee and tweedle-are isn't a real choice, it is a preference about the pace at which liberalism triumpts. If liberals are going to win in the long run, there really isn't any point in fighting some rearguard action.

Social conservativism ought to prevail over social liberalism. It won't if surrender is the "pragmatic" choice of the allegedly socially conservative party.

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives d

Courtesy of How Appealing,

http://www.nysun.com/article/54383

"Reasonable people may disagree on the death penalty. We respect those who oppose it for religious reasons or because they feel the chance of an irreversible error is too great, or because, on libertarian grounds, they are skeptical of such a forceful use of power by the state. But no matter what one's view on the death penalty, it seems incredible that Mr. Feingold would fault a prosecutor or a judicial candidate for imposing a law that is on the books and that is widely supported in the Congress in which Mr. Feingold serves and in the state in which the sentence has been handed down. His real quarrel is not with Ms. Mauskopf — she's just an easier target — but with the law."

Bobo: Do you think she will be confirmed eventaully after Feingold throws his tantrum? Or do you think this is enough to sink her nomination?

I think her nomination may be dead. Schumer and Clinton have already killed the nomination of one NY district court nominee (Mary Donohue). I bet they would have no problem accomodating a friend (Feingold) in killing another.

I wonder why they even gave her a hearing. It is not like this death penalty stuff just popped out of no where.

I do think this sort of "just popped up." I think Schumer and Clinton originally did support Mauskopf, but then Feingold got all upset after her hearing. Since Schumer and Clinton have never really wanted to let Bush fill the New York judiciary anyway, this has given them a perfect reason to block Mauskopf.