ConfirmThem

Posted at 11:03am on Feb. 20, 2008 Cox Gets a Vote

By Quin

SEC Chair Chris Cox, so popular at this site as a potential Supreme Court pick, gets another vote (from columnist Lisa Fabrizio) for Veep: http://www.spectator.org/dsp_article.asp?art_id=12769
Great column.

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Posted at 2:57am on Feb. 8, 2008 Ditto

By AndrewHyman

What Ed said.

UPDATE: Fred Thompson also endorses McCain.

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Posted at 7:12pm on Feb. 7, 2008 McCain on Judges at CPAC

By Quin

Look, it is clear I am no fan of John McCain's, especially on judges, where I remain angry at his actions with the Gang of 14 and absolutely furious (as we all should be) with his shameful support for Lindsey Graham's smear job against 4th Circuit nominee Jim Haynes. But I must admit that his speech at CPAC, which I attended, hit almost all the right notes in exactly the right tones. What bothered me, though -- indeed, almost the only thing that bothered me -- was what he said on our favorite issue here at Confirm Them. I acknowledge right up front that this is slightly nitpicking, but with McCain's record, they are nits that I think are quite legitimate to pick. So here goes....
McCain pledged to appoint judges like Roberts and Alito. Great. I am a fan of both. But I am even more of a fan of Scalia, and even more than that a fan of Clarence Thomas. I would have been happier if McCain, speaking to this conservative audience, had forthrightly said he would appoint judges like Clarence Thomas. (More)

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Posted at 11:10pm on Feb. 4, 2008 McCain, Romney, and the Massachusetts Constitution of 1780

By AndrewHyman

Governor Romney and Senator McCain have new statements up at the Federalist Society website. Here's a piece of McCain's statement (emphasis added):

My judicial appointees will understand that the Federal government was intended to have limited scope, and that federal courts must respect the proper role of local and state governments. The second principle is Separation of Powers. My judicial appointees will understand that it is not their role to usurp the rightful functions and powers of the co-equal political branches. I will look for candidates who respect the lawmaking powers of Congress, and the powers of the President.

I like that he's talking about "appointees" here, rather than merely talking about "nominees." It really doesn't matter if McCain nominates someone like Bork. Reagan nominated Bork. Big deal. The key is to hang in there and insist on getting an appointee who is solid, because, as McCain says, "A President should have confidence in the judicial philosophy of those he is appointing to the bench." (Of course, this should not be construed as advice to Obama or Clinton.) Anyway, here's a snippet from Romney's statement at the Federalist Society website:

I believe a judge’s most solemn obligation is to the "rule of law," a phraseology of which I am particularly fond since it comes from the original Massachusetts constitution of 1780.

Actually, the phraseology in the original Massachusetts constitution of 1780 was slightly different (emphasis added):

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.

There is more than one sitting U.S. Supreme Court justice who believes that the judiciary should exercise an unreviewable legislative power, and who, on at least one occasion, has mocked those who disagree.

Hat Tip: Jonathan Adler at the Volokh Conspiracy.

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Posted at 12:31pm on Feb. 1, 2008 The Senate's Man in the White House?

By AndrewHyman

That's the way a McCain presidency might turn out. He'll seek nominees like Scalia and Roberts and Alito, but if that doesn't succeed, then it's anyone's guess:

[B]efore the nominations are formally introduced, the way they used to do it, they would kind of run the traps of the— senators, particularly those on the committee and say, "Are these acceptable or unacceptable?" and if they were unacceptable they wouldn’t send them over and if they were acceptable, then they would move forward.

This quote from a 2005 interview turned up today at The Corner. Apparently, McCain will not nominate the person he believes would do the best job on the Court, and would instead seek a consensus nominee who satisfies himself and sixty U.S. senators. That's preferable to Clinton/Obama, I suppose, but really not the best way to address vacancies.

Meanwhile, Senator Specter is urging more hearings rather than a continuation of the "Hatfields and McCoys". Good for him.

And Greg Stohr of Bloomberg news is reporting that Justice Alito has stopped short of "voting to overturn precedents that Thomas and Scalia decry, including the landmark Roe v. Wade abortion-rights decision." Actually, all nine of the justices have been stopping short of such a vote, seeing as how that question has not been presented to them.

UPDATE: And here's a February 4 column in the Wall Street Journal titled "McCain and the Supreme Court", by Steven Calabresi and John McGinnis, in which they criticize "conservative carping" about McCain's candidacy.

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Posted at 11:17pm on Jan. 29, 2008 McCain Wins Florida

By AndrewHyman

Looks like the GOP nomination is now John McCain's to lose. His Florida victory speech is here at Youtube. I transcribed the part about judges:

Government must respect our values because they are the true source of our strength, and enforce the rule of law, which distinguishes successful democracies from failed societies, and is the first defense of freedom. And the judges we appoint to federal benches must understand that that is their only responsibility and leave to elected officials their responsibility to make the laws they enforce.

That sounds about right. McCain also promises that support for McCain-Feingold will not be a litmus test for judges he appoints. Mitt Romney's Florida concession speech is here at Youtube.

Meanwhile, the judicial confirmation process continues to implode. Sen. Mitch McConnell put it this way on January 22: "we can’t confirm judges if they don’t get hearings." The lack of hearings for circuit court nominees is unfair, and McCain as well as Romney could make an issue of it. This obstruction is based 100% on Senator Leahy's gamble that he can keep vacancies open until voters give his party the White House.

President Bill Clinton had fifteen (15) circuit court confirmations during his last two years, when the GOP controlled the Senate. This President Bush has had only six (6) circuit court confirmations so far during his last two years. Ten (10) circuit court nominees are currently being hung out to dry.

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Posted at 10:33am on Jan. 28, 2008 McCain is Bad News for Judicial Conservatives

By aurel

John McCain ought to be unacceptable for judicial conservatives. Here is why:

More recently, Mr. McCain has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because "he wore his conservatism on his sleeve."

From today's John Fund column in the Wall Street Journal.

Our best bet, by process of elimination, is Mitt Romney.

PS: Some excellent follow-up questions for Mr McCain from Andy McCarthy.

UPDATE FROM ANDREW HYMAN (January 28): McCain says it's not true, and says it again.

UPDATE FROM ANDREW (January 28): Fund says he has multiple sources, and elaborates on what he says McCain said.

ANOTHER UPDATE FROM ANDREW: Robert Novak confirms what Fund wrote.

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Posted at 12:00am on Jan. 19, 2008 Huckabee Explains

By Curt Levey

Fred Thompson and Quin rightfully criticize Mike Huckabee for saying the U.S. Constitution is “a living, breathing document.” While it was certainly a poor choice of words, it’s only fair to point out that Huckabee was talking about the amendment process, not judge-made constitutional evolution. The Committee for Justice asked Governor Huckabee to clarify and he explained that

[Changing the Constitution] is something for the people to decide through the democratically-established process of Constitutional revision – not unelected judges who are not accountable to the people.

That point is one opponents of judicial activism need to make more often. We are not against constitutional evolution; we just want it to be done the way the Founding Fathers intended. As I discussed in a 2005 National Review Online op-ed, the lack of any new substantive constitutional amendments for nearly four decades now is a testament to the seduction of judicial activism, not to any flaws in the legitimate method of constitutional evolution.

Huckabee's full statement to CFJ is below the fold.

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Posted at 1:39pm on Jan. 18, 2008 Huckabee Wants Constitution to Live and Breathe

By Quin

I kid you not. This morning on CNN, Mike Huckabee told John Roberts (the reporter, not the chief justice) that The United States has "a living, breathing Constitution." This, from the same man who said his idea of a good future Supreme Court pick would be Lavenski Smith...who, according to the Minnesota Bar Association, is generally regarded as slightly left of the center of the Eigth Circuit Court of Appeals. (cross posted from The American Spectator.) More on this here.

I would also remind readers that Huckabee originally praised the Lawrence v. Texas decision (the sodomy case). Granted, as Andrew has noted, the Huckster since has backtracked and says now that he just hadn't understood the issues involved when he was asked about the case. But that brings up another matter, which is just how often this guy spouts off and then claims to have been uninformed -- and on MAJOR issues, no less. Pakistanis crossing the Mexican-American border by the hundreds each year? The National Intelligence Estimate on Iran being unimportant, (or whatever it was that he said)? And the key decision that opened the door to court-imposed homosexual marriage, while using foreign law as one of its arguments, treated as if it was a good decision? Give me a break.

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Posted at 8:10pm on Jan. 9, 2008 Huckabee on Judges, Part II

By AndrewHyman

Following is a statement by Governor Mike Huckabee that recently went up at his website. We previously had a post here at ConfirmThem about Huckabee's stance on judges, and the following statement goes into some more detail:

One of the greatest ongoing threats to our constitutional republic is the ever-increasing politicization of the federal judiciary. Instead of interpreting the law according to its plain or original meaning, many judges are using the Constitution and statutes passed by Congress as a mere pretense for imposing their policy preferences on the American people. This is unacceptable. The role of a judge is to interpret the law, not to legislate from the bench; and as president, I will only appoint men and women who share this view.

I firmly believe that the Constitution must be interpreted according to its original meaning, and flatly reject the notion of a "living Constitution." The meaning of the Constitution cannot be changed by judicial fiat. The powers delegated to the federal government by the Constitution come from "We the People," and judges have no right to prohibit the people from passing democratically-enacted laws unless we have explicitly authorized them to do so. Nor can vaguely-worded language in the Constitution be used by judges to give them power over subjects the framers never intended our founding document to address. As such, any interpretation of the Constitution that is based on "evolving standards of decency," penumbras, or any other judicial fiction, is antithetical to the rule of law, and must be forcefully challenged.

As president, I will appoint justices and judges who not only share my judicial philosophy ( e.g., Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito), but who also have established themselves within the conservative legal community as faithful adherents of originalism and textualism. The stakes are simply too high to do otherwise.

Finally, I wholeheartedly believe "that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be"; and I will do everything in my power as president to promote these cherished principles.

Hat Tip: Alexham at Redstate.

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Posted at 12:46am on Jan. 8, 2008 McCain as Nominator in Chief

By AndrewHyman

Here’s an interesting post over at Redstate: "Why the idea of John McCain appointing Supreme Court Justices worries me even more than Rudy Giuliani appointing them." Check it out.

UPDATE: We'd be remiss if we didn't also point out this recent McCain quote: "Can you find me one republican who now thinks we should have only 51% to confirm a judge?" Yes. A GOP Senate minority has never permanently blocked confirmation of a judge (notwithstanding what John Dean says).

UPDATE #2: Sen. McCain seems to have won the GOP primary in New Hampshire this evening, so let's hope the concerns about his nominating skills are off the mark. Romney now has an overall three-to-one lead over McCain in the delegate count.

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Posted at 12:15pm on Jan. 5, 2008 Miranda Discusses Whether McCain Would be Okay on Judges

By AndrewHyman

I got an email from Manny Miranda today, talking about how a President John McCain would do on judicial nominations. Some of you may recall that Manny played a big role as a Senate aide, and thereafter, on the judges issue. Recently, he's been working for the State Department in Iraq. Here's a big snippet from his email today (which he also sent to various other people):

You and I know the importance of the judge issue. As Senator Jeff Sessions once told me, "Nobody polls on it, but it's what everyone wants to talk about back home." We need to make sure that a Republican president understands this issue without wavering and without any populist tendencies. Mitt Romney does not give us that comfort. Certainly, John McCain is not a culture warrior and yet he has been solidly pro-life in his voting record and firm in his understanding that the issue of abortion should be returned to the States, just as Justice Scalia does. For example, see here. Mitt Romney's record is not similarly comforting....MORE BELOW THE FOLD

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Posted at 5:41pm on Jan. 4, 2008 Is it Better for the GOP to lose in 2008?

By aurel

Something to ponder for judicial conservatives:

Might it better for judicial conservatives to see the Republican Party lose the 2008 Presidential elections?

The argument after the break.

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Posted at 1:04pm on Jan. 3, 2008 Voting This Month

By AndrewHyman

Today is Thursday, and the Iowa caucuses are tonight. As far as I can tell, the GOP schedule for the rest of January is as follows. Wyoming has their convention on Saturday (January 5). Next Tuesday (January 8) is the New Hampshire primary. Michigan's primary is on January 15. Nevada (another caucus) votes on January 19, and South Carolina also votes on January 19. The Florida primary is on January 29.

I'm currently pulling for Romney, although there are a lot of excellent candidates, including Fred Thompson and others. It's possible that John McCain may pull an upset in New Hampshire, especially if Huckabee instead of Romney wins in Iowa tonight. (UPDATE: Huckabee won in Iowa.) MORE BELOW THE FOLD....

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Posted at 2:10pm on Dec. 3, 2007 Huckabee on Judges

By AndrewHyman

From an interview on August 3, 2007:

Brian: Is there anything you can share about your experience of appointing judges while Governor?

Governor Huckabee: You know, I looked for people who embodied those very things I just mentioned. A commitment to a strict constructionist view of their job, viewed the Constitution as something that they were simply to apply, not to reinterpret and rewrite. But I also looked for people who embodied the kind of temperament that we needed on the bench, who would, uh, divorce themselves and distance themselves from their own personal passions in the sense of letting their emotions drive them, but [instead] letting the Constitution drive them. And, uh, the kind of people I appointed certainly ended up, uh, for example, one I can think of, that I put on the State Supreme Court…President Bush appointed him to the 8th Circuit Court of Appeals. An outstanding young jurist named Lavenski Smith that I’ve known since I was in grade school. And he’s a person that embodies the kind of person we need on the bench, he, uh, has a deep respect for God, for this country and its Constitution, and, uh, almost approaches his job with a sense of fear and trembling, to make sure that he does it in such a way that he has a clear conscience.

I don't know much about Judge Smith. Here's his DOJ biography.

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Posted at 10:33am on Nov. 27, 2007 A Few Items

By AndrewHyman

"200 Reasons Why the Election Matters; The future of the federal judiciary is at stake on November 4, 2008" by Terry Eastland in the Weekly Standard of December 3 2007.

"Thanksgiving for the Federalist Society" by Marion Edwyn Harrison on November 23, 2007.

"Giuliani has history of liberal judge appointments" by Libby Quaid, Associated Press on November 16, 2007.

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Posted at 12:45am on Nov. 25, 2007 A Romney-Appointed Judge in Trouble

By AndrewHyman

Mitt Romney is calling on a state judge he appointed to resign. Rudy Giuliani has seized upon this case where a Romney-appointed judge (Kathe Tuttman of the Massachusetts Superior Court) allowed a convicted murderer named Daniel Tavares to go free after serving his sentence, without requiring any bail regarding charges that Tavares had attacked someone while in jail. Tavares then fled to Washington State where he killed a young couple. In my opinion, Romney should probably call on the prosecutor who apparently bungled the case to resign. Romney had no role in appointing the prosecutor. Details below the fold....

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Posted at 7:30pm on Nov. 18, 2007 Open Thread

By AndrewHyman

It's kind of interesting to compare the lists of judicial advisors that some of the presidential candidates have lined up. Compare Lawyers for Fred Thompson to Rudy Giuliani's Justice Advisory Committee to Mitt Romney's Advisory Committee On The Constitution And The Courts.

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Posted at 4:50pm on Nov. 17, 2007 Rudy Addresses Federalist Society

By Curt Levey

Friday afternoon, Rudy Giuliani addressed the Federalist Society in Washington, DC and spoke about the proper role of a judge, the Senate’s role in judicial confirmation, the separation of powers, and federalism. His full remarks are here and my favorite excerpts are below:

I’m going to give you 200 reasons why the next election is really important. It’s the 200 federal judges that the next President of the United States will likely appoint over four years in the White House.

[I]f a president is elected who has the kind of thinking of a Hillary Clinton or a Barack Obama or a John Edwards, and I don’t think there’s much distinction there. I think you’re going to see . . . judges who will be activists in the sense of trying to legislate their social policy through judicial interpretation.

For many, many years, law schools, too many of them, had been confusing constitutional law with sociology. And there is a big difference between constitutional law and sociology.

More excerpts below the fold.

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Posted at 9:38pm on Nov. 6, 2007 Giuliani and Romney on Judges

By AndrewHyman

We'll continue to have posts about other candidates, but two items about Giuliani and Romney caught my eye recently.

First, Kristi Remington and Jamie Brown have a November 6 column up at National Review, titled "Judge This: In the footsteps of Roberts and Alito". Remington and Brown support Mitt Romney's bid for the White House, and they contend that Romney would be an excellent nominator in chief. I agree he would be that.

Second, on November 5, the Union Leader had an article titled "Giuliani promises strict constructionist judges". Giuliani was also recently quoted vowing to veto "any reduction in the ... existing limits on abortions." That vow leaves plenty of room for Giuliani to sign legislation codifying Roe v. Wade, and if he nominates someone like Miguel Estrada to SCOTUS then such legislation would probably be deemed constitutional.

Should Giuliani be nominated, it looks like a third party candidacy could be in the offing, or at least a lot of GOP voters may sit out the general election. However, Jeffrey Lord is urging GOP unity in support of whoever the GOP nominee is. See "Dr. Dobson and Justice Bork" in the American Spectator last month. Richard Viguerie, on the other hand, disagrees with Lord. What do you think? I tend to agree with Lord.

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Posted at 6:12pm on Oct. 22, 2007 Confirm Judge Southwick

By Fred Thompson

It’s hard to believe that Democrats in the Senate would expend this much negative energy against one man, but apparently they think Judge Leslie Southwick is important enough for them to do so. In case you’ve missed it, Judge Southwick was nominated for a long-standing vacancy on the United States Court of Appeals for the Fifth Circuit by President Bush, was blocked by Democrats, finally voted out of the Senate Judiciary Committee earlier this summer, and has been waiting for full Senate confirmation for several months. His nomination may come before the full Senate later this week.

Judge Southwick shouldn’t feel that what’s happened to him is an isolated situation. In fact, Democrats have been playing this game going all the way back to the days of their attacks on Judge Robert Bork and Justice Clarence Thomas. Senate Democrats simply can’t stand judges who do right by the Constitution and ignore their political causes of the moment. So perversely, Judge Southwick should be honored by the attention Democrats are giving him.

Adding insult to the political web Democrats have spun is the fact that Judge Southwick has proudly served his country in Iraq, fulfilling his National Guard duty as Deputy Staff Judge Advocate from August 2004 to July 2005, and then as Staff Judge Advocate until January 2006. He also has served on the Mississippi Court of Appeals from that court’s very inception in January 1995 through December 2006. Prior to serving as Deputy Assistant Attorney General for the U.S. Department of Justice’s Civil Division, from 1989 to 1993, he was in a general civil private practice for 12 years. He’s taught law as an adjunct professor at Mississippi College School of Law since 1998. Even the American Bar Association, which often treats conservative judicial nominees unfairly, unanimously gave Judge Southwick the institution’s highest possible rating.

Judge Southwick is qualified and ready to serve. Republicans should do all they can to get him confirmed.

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Posted at 12:44pm on Oct. 1, 2007 Questions for Wendy Long of the Romney Campaign

By AndrewHyman

We're pleased to say that the Romney campaign contacted us a few days ago about doing an interview with one of their legal/judicial advisors. So, if you've got any particular questions that you'd like me to ask Wendy Long, please go ahead and leave them in the comments. The interview with Ms. Long will be later this week. We may eventually do similar interviews with some of the other campaigns.

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Posted at 9:34pm on Sep. 8, 2007 Fred Thompson (and John Warner) on Judges

By AndrewHyman

Byron York has a transcript up of an August interview with Fred Thompson. Here's part of it:

YORK: How would you approach Supreme Court nominations?

THOMPSON: I feel very strongly about this issue. Other than homeland security, and national security and issues of war and peace, it’s the most important thing a president does. It’s important that the president not only know and understand and learn about the people he’s going to have to choose but he understands the underlying issues and hopefully knows how to read a case and knows who’s following precedent and who’s not and who’s doing it from the seat of their pants based on their own views of social equity, versus the Constitution and the law.

I like Roberts and Alito and Scalia and Thomas. One of the best things that I got to do as a private citizen was to help get Justice Roberts through the confirmation process. It gave me an opportunity to go back through not only his cases but prior confirmation hearings, to re-steep myself in some of those issues. We’re in a heck of a lot better shape because of Roberts and Alito, and one more gain would put us in even better shape.

YORK: Listening to the Roberts and Alito confirmation hearings, it didn’t seem to be a slam dunk that they would someday vote to overturn Roe. What did you think?

THOMPSON: I think it’s a fair assessment to say you can’t come away from their hearings saying that anything is going to be a slam dunk. They are going to hear it objectively and dispassionately, with proper reliance on precedent, and not be results-oriented. That’s the reason we need judges like this, because they’re not results oriented. I think it gives a reassurance to the American people.

YORK: What was your reaction to the Harriet Miers nomination?

THOMPSON: Disappointment. To say the least.

Regarding the recent 4th Circuit nomination of Duncan Getchell, although he wasn't on the joint Warner-Webb list of recommended nominees, Getchell had been on the joint Warner-Allen list. On June 16, 2006, Warner and Allen wrote to Bush that Getchell is "exceptionally well-qualified" and "would most likely be confirmed by the Senate." It's also interesting to note this observation by a researcher in 1980: "The blue slip system is rarely used and it often serves some other purpose than defeat of a nominee. Its major function seems to be to delay, and not defeat, a nomination."

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Posted at 10:40am on Jul. 16, 2007 Giuliani's Judicial Advisors

By aurel

Make of this what you will:

GOP frontrunner Rudy Giuliani will unveil his "Justice Advisory Committee" this week on a two-day swing through heavily Republican western districts of Iowa, home of the first presidential caucuses in 2008. ...

Former U.S. solicitor general under President Bush, Ted Olson, will chair the panel. Former Bush administration Deputy Attorney General Larry Thompson and filibustered judicial nominee Miguel A. Estrada will be among the "who's who" of conservative legal and judicial advisers to Giuliani.

Source.

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Posted at 2:11pm on May 19, 2007 Romney and McCain on Judges

By AndrewHyman

This is from a May 10 speech by Mitt Romney:

The problem is that there are some people who believe that their views must be imposed on everyone. More and more, the vehicle for this imposition is the courts. Slowly but surely, the courts have taken it upon themselves to be the final arbiters of our lives. They forget that the most fundamental right in a democracy is the right to participate in your own governance.

And, here's a video on the same subject, from John McCain's web site.

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Posted at 9:01pm on May 16, 2007 "Would Rudy Be Good for the Courts?"

By AndrewHyman

Robert Alt suggests not.

UPDATE: Father Jonathan Morris has an interesting column at Fox News. He discusses Mayor Giuliani's view that some “strict constructionists” believe in overturning clearly erroneous Supreme Court decisions, while other “strict constructionists” are more willing to let clearly erroneous decisions stand if they have become entrenched. Who knows which type of "strict constructionist" a President Giuliani would pick?

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Posted at 7:09pm on May 14, 2007 Olson Goes to Bat for Rudy

By AndrewHyman

"Two for the Price of One: The presidency and the judiciary" by Ted Olson.

And Olson elaborates here.

Hat Tip: Esquire.

P.S. Over at Bench Memos, Ed Whelan has what may be the first honest public opinion poll about Roe v. Wade in 34 years.

P.P.S. Here's Rudy on April 4:

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Posted at 1:25pm on May 14, 2007 Ultimately

By AndrewHyman

Just for the record, it appears that Rudy Giuliani does believe that abortion is a legitimate constitutional right: "ultimately it is a constitutional right, and therefore if it is a constitutional right ultimately, even if you do it on a state-by-state basis, you have to make sure that people are protected." I don't think I could ever vote for someone in the primaries who views the Constitution like that. No way. I can put up with his personal views, and maybe even his public policy views, but not his constitutional views. His legal reasoning about the Constitution is all messed up.

UPDATE: Some sincere commenters assert that I've distorted what Giuliani said. So, check out the comments.

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Posted at 3:40pm on May 13, 2007 Rudy Needs to Go Back to Law School

By AndrewHyman

On May 8, GOP presidential candidate Rudy Giuliani did an interview with Laura Ingraham. Here's a snippet:

Laura Ingraham: "Mayor, with all due respect, you can’t believe that the framers intended to write an implicit right to abort in our Constitution, you can’t believe that."

Rudy Giuliani: "Nor do I think the framers wrote an exclusionary rule into our Constitution, nor did the framers write into the Constitution that you should get Miranda warnings."

I hope this is not the kind of flawed reasoning that Mayor Giuliani plans to seek out in his Supreme Court nominees. Both the exclusionary rule and Miranda warnings are widely understood to be “prophylactic rules,” meaning that they overprotect a specific enumerated constitutional right. Miranda warnings are designed to protect the Fifth Amendment right against self-incrimination. The exclusionary rule is designed to protect the Fourth Amendment right of freedom from unreasonable searches and seizures. No one in his right mind has ever contended that ''Roe v. Wade'' is a prophylactic rule protecting some specific enumerated right.

Hat Tip: Agrippa.

UPDATE: Rudy repeated this flawed constitutional analysis in a June 30, 2007 interview with the Wall Street Journal.

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Posted at 7:29pm on May 11, 2007 Thompson in National Review, Giuliani in Houston

By AndrewHyman

Fred Thompson had a column yesterday at National Review, discussing and praising the D.C. Circuit's recent Parker decision on the Second Amendment: "it is so important to appoint judges who understand that their job is to interpret the law, as enacted by will of the people, rather than make it up as they go along."

Meanwhile, Rudy Giuliani gave a speech today in Houston covering a lot of subjects. You can watch the full video, or you can watch only the parts about abortion, or you can just believe what I say here. :-) Giuliani was strong on national security, warning against "retreating and running away" in Iraq. He urged low taxes. He also praised Judge Silberman's decision in the Parker case. However, he pointedly had no praise for the efforts of Supreme Court justices over the past 34 years to reverse Roe v. Wade. Guiliani said, "I would not be open to removing the right" (it's unclear if he was referring to a constitutional right or a statutory right). Giuliani said he has "profound respect" for the differing views of other citizens, but he did not support enfranchisement of those other citizens on the abortion issue.

Hat Tip: Alexham and Howard Bashman.

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