ConfirmThem

I think this is a distortion of Giuliani's views. He seems to be saying here only that abortion has been recognized as a constitutional right. (We've discussed before his flawed logic that an obligation to fund necessarily follows, but that's a separate point.) In several other statements and interviews discussed here, Giuliani has suggested that he thinks Roe was wrongly decided. That's the premise of his repeated assertion that an originalist or strict constructionist could overrule Roe as wrong, or could uphold it as precedent.

I don't know whether we can completely *trust* Giuliani on this issue, but I've yet to hear him say anything about judges that is disqualifying from the perspective of a judicial conservative.

I disagree, Agrippa. If you listen to the Ingraham interview, he's saying that Roe is no worse than the Court's decisions creating the exclusionary rule or the Miranda warnings (which is comparing watermelons to raisins inasmuch as Roe did not prophylactically protect any explicit constitutional right). He also said that the way to deal with the Miranda warnings and the exclusionary rule is to limit them but not overturn them. It doesn't take a rocket scientist to figure out what he's saying here about Roe.

In this context, for him to say that the right to abortion is "ultimately" a constitutional right is quite a bit different than saying it's "currently considered to be" a constitutional right, or is a constititional right "according to the Supreme Court's decisions".

Although I know that some Supreme Court nominees have made noises about stare decisis trumping the Constitution, a Supreme Court justice has a sworn duty to overturn decisions that he or she is convinced are clearly erroneous and unconstitutional. That doesn't seem to be Rudy's view at all. It's an extremely dangerous thing to say that SCOTUS can do whatever the hell it wants, and if it does so for long enough then a "strict constructionist" may abide by the usurpation.

What I took away from the Ingraham interview is that he thinks Roe and Miranda were both wrong, but that he recognizes that even incorrect precedent sometimes gets limited, not overruled. He wasn't doing a comparative analysis of how wrong they are, and Miranda obviously came to his mind because he's a former prosecutor. He did not say that adhereing to precent is the correct way to deal with those decisions, just that that is what sometimes happens. As he puts it (dodging the question), that's for the judges to decide.

Guliani is obviously trying to be on both sides of the issue here, in accordance with two aspects of his campaign strategy: don't flip flop and maintain appeal to blue state pro-choice voters. Of course, he may well be trying to pull a fast one over on conservatives, which is why I said I don't know if I trust him. But he has promised originalists who approach the Constitution in the manner that Judge Silberman did in the Parker case, and I don't see any contradiction between that promise and his failure to stand on a soap box and declare Roe the greatest constitutional abomination since Dred Scott. If he is true to his word -- a big "if", I concede -- then we stand an excellent shot of getting from him a justice who will likely overrule Roe (say, for example, Janice Rogers Brown), or at least as good a shot as we'd have from any of our other candidates or that we have had from President Bush.

Giuliani was an excellent mayor and governed as a conservative--fiscally, on crime, on quality of life issues--perhaps more conservatively than any politican that I have seen in my life time. However, and this will be the case when he is president, there will be those few issues that will really piss us off. New York is a much more livable city because of Rudy, and he will do the same for the country. Rudy puts the northeastern states in play for the republicans. He is by no means perfect, and he will aggravate us, but he is way more competent and conservative than the president we have now, or any democrat that might win.

PS:In my heart, Fred Thompson is best, in my head Rudy makes sense.

The Privileges and Immunities Clause in Article IV of the Constitution has always been interpreted (correctly) to guarantee a right of a citizen of any state to go enjoy any other state. Yet that obviously does not require the government to pay air fare or buy automobiles for all of its citizens.

According to the item linked in this post, Rudy says that states must provide public funding, if abortion is a constitutional right. That bit of muddle-headed constitutional thinking is enough in itself to cause me a lot of concern. It's quite obvious to me that he wouldn't be taking this constitutional position unless convinced that Roe should not be overturned.

And as I said before, it's just ludicrous to compare Roe to Miranda warnings or the exclusionary rule. He wouldn't be doing so unless he thought they were of comparable validity. In actuality, they are not. Roe does not prophylactically protect any specific enumerated right.

As the record stands, there's just no way I could vote for him in the primaries. Every GOP President elected since Roe has said that it should be overturned. Rudy obviously feels differently.

He says there will be no Roe litmus test on judges. That's fine. But still he'll be looking for a nominee who says that clearly unconstitutional precedents should be perpetuated if there's substantial reliance on them.

It is not clear whether Rudy meant that he supports a federal constitutional right to abortion (and thus that Roe was correctly decided) or simply that he recognizes that, until Roe is reversed, such a right must be viewed as the law of the land. What is clear is that Rudy was not trying to address that question, but to explain his view on public funding of abortion. Given that Giuliani has elsewhere said it would be OK with him if strict constructionist justices reversed Roe, I don't think we should read Rudy as contradicting himself here, without a good reason for rejecting an interpretation of his remarks that makes them consistent.

I think it is misleading to talk about stare decisis 'trumping' the constitution or not. Justice Rehenquist thought Miranda was wrongly decided, but ultimately supported it based on stare decisis. And I would be stunned to find a conservative justice who would vote to overturn Marbury v. Madison -- now a 200 year old foundation stone of our jurisprudence -- purely because he thought it was wrongly decided, with no consideration of the upheaval that can result if absolutely every issue is forever up for grabs.

Put not your trust in princes, nor in the sons of men, in whom there is no help.

First of all, that is just not true about Rehnquist and Miranda. In Dickerson v. United States (2000), Rehnquist voted to reaffirm the Court's famous decision in Miranda v. Arizona (1966) based not only on the notion of adhering to precedent, but also based on his belief that "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." It's very obvious that stare decisis was only one of several considerations.

Anyway, you make an interesting point about trying to interpret Rudy's remarks so that they are all consistent with each other. I'm willing to try to do that.

You're correct that he has elsewhere said (in the first debate) that it would be OK with him if strict constructionist justices reversed Roe, and okay with him if they upheld Roe. Can we possibly get anything squishier in the oval office? How about someone who says: I'd be happy with a judge who upholds unconstitutional statutes, and I'd also be happy with a judge who strikes down unconstitutional statutes? If he's willing to opine about Parker, he should also be willing to opine about Roe.

And I might add that I am personally revolted by his responses to questions from Laura Ingraham and Chris Wallace about WHY he is personally opposed to abortion. Here he has a bully pulpit to mention that there may be a living, feeling human being who is being destroyed, and yet he intimates no such thing, lest he annoy Kate Michelman. If I were a woman thinking about getting an abortion, there's no way his words would dissuade me. But I'm trying to look past Rudy's personal and policy views, and trying to figure out what kind of judges he'd nominate.

P.S. Marbury was correctly decided, and everyone knows it.

Just spotted Andrew's later post. Well, if you're concerned that Rudy would just as soon see Roe upheld -- so long as no one blames him for appointing another O'Connor -- I agree with you.

Random thought about Miranda: in the late 60's, the Court's creation of novel constitutional rights to protect criminals was more widely (perhaps less deeply) hated by conservative voters than Roe in our day. So whether Roe really is a dhorse of a different color depends on who you ask.

You don't really think (do you?) that there should be a different rule of stare decisis for Roe than for Miranda or for non-constitutional precedents? In my view the same rule applies, but that rule (which now counsels keeping Miranda) is not enough to keep a justice from voting to reverse Roe (especially given the trend in Lawrence to afford less respect to prior "settled" decisions).

Put not your trust in princes, nor in the sons of men, in whom there is no help. Psalm 146:3

No, I don't think that there should be a different rule of stare decisis for Roe than for Miranda, but there should be a different rule for non-constitutional precedents. Non-constitutional precedents are easier for legislators to overturn, and therefore stare decisis should have more force in non-constitutional cases.

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932) (Brandeis, J., dissenting).

Also, the rule of stare decisis may be the same for Roe and Miranda, but the result should be different. Miranda was much more plausible, since it prophylactically protects an actual written, enumerated right in the Fifth Amendment (the right against self-incrimination). Roe has no linkage to any specific, enumerated right. That very much weighs against upholding Roe.

Andrew -- I don't disagree with one iota of this last post, although the Miranda haters of the 60's might not have agreed that attachment to an enumerated right makes a newly fabricated constitutional right more immune to reversal. And of course you are right about the weaker rule of stare decisis in constitutional cases. I was absent minded to suggest otherwise.

I guess we are all back where we started -- trying to pick a candidate who, most importantly, will not loose to Hillary, and who will appoint the next John Roberts. If Ted Olsen is going to be part of Rudy's screening committee, I would view that as encouraging.

As an aside, is anyone here really confident that Roberts and Alito will vote to overturn Roe?

Put not your trust in princes, nor in the sons of men, in whom there is no help. Psalm 146:3

Andrew,

I understand you are not comfortable voting for Giuliani, but continually distorting his views is very unfair. Giuliani has never said that Roe was correctly decided. In fact, when he says that he believes in strict constructionism and strict constructionist judges, he adds that such judges may overturn Roe or may decide not to overturn it because of stare decisis. He omits the third obvious alternative, that a judge may vote not to overturn Roe because he believes it was correctly decided, because he correctly understands that such a judge could not be called a strict constructionist. Together, this implies that what he defines as "strict constructionism" (which he also espouses) would have led to Roe being decided the other way in 1973. Last of all, he says that abortion policy should be decided by the states which is obviously inconsistent with it being a constitutional right since we don't let constitutional rights like free speech be decided by the states.

Andrew, although he was willing to criticize Roe as judicial overreach, Bush in 2000 said that he had no Roe litmus test for judges, but would appoint strict constructionists (as Rudy is saying now). Bush bent over backwards to avoid promising his justices would overrule Roe. For example, at the first Bush-Gore debate, Bush said:

"The voters should assume I have no litmus test on that issue [abortion] or any other issue. Voters will know I'll put competent judges on the bench. People who will strictly interpret the Constitution and not use the bench for writing social policy. That is going to be a big difference between my opponent and me. I believe that the judges ought not to take the place of the legislative branch of government. That they're appointed for life and that they ought to look at the Constitution as sacred. They shouldn't misuse their bench. I don't believe in liberal activist judges. I believe in strict constructionists."

And Bush denied using "code" for overruling Roe.

http://www.debates.org/pages/trans2000a.html

In the early 1980's, Alito clearly saw that as long a majority of justices supported Roe it was useless to try to overturn it. So he developed a plan to gut Roe rather than overturn it. The conditions Alito noticed are still present today. All the liberal members of the court along with Kennedy will never allow Roe to be fully overturned. Kennedy, however, will allow most state restrictions on abortion to stand. Alito and Roberts are wisely using Kennedy to carry out Alito's original plan from the '80's. They cannot openly admit this because it might turn Kennedy against them. Only when there is a majority of truly conservative justices will Alito and Roberts vote to overturn Roe. If this ever happens, I think yes - Alito and Roberts will vote to oveturn.

In 2004, Bush again refused to commit to naming justices who would overrule Roe v. Wade.

"SCHIEFFER: Mr. President, I want to go back to something Sen. Kerry said earlier tonight and ask a follow-up of my own.

He said -- and this will be a new question to you -- he said that you had never said whether you would like to overturn Roe v. Wade. So I'd ask you directly, would you like to?

BUSH: What he's asking me is, will I have a litmus test for my judges? And the answer is, no, I will not have a litmus test. I will pick judges who will interpret the Constitution, but I'll have no litmus test."

http://www.cnn.com/2004/ALLPOLITICS/10/13/debate.transcript2/index.html

Roe v. Wade was wrong because it 'usurped the power of the legislatures,' Bush said. 'I felt like it was a case where the court took the place of what legislatures should do in America,' he said. But Bush refused to say how he felt each state should act. Instead, he said that when it comes to legalizing abortion, 'it should be up to each legislature.'

George W. Bush, Boston Globe, p. A12 (Jan 22, 2000).

I have been reading here lately that some of us are opposed to Rudy's social views, esp. abortion. Some of us have even said that they could not vote for him. Let me just say this: vote for whoever you want to in the primaries. But, please come home to the pRty in the general and vote for the nominee. I, too am pro-life and and agree with him on that issue. But we must vote for the nominee. Staying home is a vote for the other side. Remember Reagan's 80% "rule"? No matter how bad we think he is on some issues, the worst Republican is always better than anybody on the other side. Their policies and nominees will be much worse. Now is the time to campaign for anyone you want to. But don't be like a spoiled child and not vote in the general. We need every vote we can get.

OK, I took the liberty of inserting "in the primaries" into this post, plus I added an UPDATE.

Your quote, Andrew, supports my observation that Bush has been "willing to criticize Roe as judicial overreach", but it doesn't change the fact that during his election campaigns, Bush refused to promise to appoint Justices who would overturn Roe.

Hadleyw is correct.

LMK, what I said in the post was, "Just for the record, it appears that Rudy Giuliani does believe that abortion is a legitimate constitutional right." The post does not say or imply that Giuliani has ever said that Roe was correctly decided as an initial matter.

Giuliani (unlike Bush) has been silent about whether he thinks it was initially decided correctly. But he has not been silent about whether he thinks it could be legitimately upheld (he says it could be).

I have also never said that Giuliani should promise to appoint Justices who would overturn Roe. However, his own views about the present-day legitimacy of that decision are suggestive of what he thinks a "strict constructionist" is. I don't recall that Bush ever anticipated that a "strict constructionist" could uphold Roe.

Obviously, this whole issue is very tiresome, and it's probably very frustrating and difficult for Giuliani. I don't mean to harp on the issue. But saying that a strict constructionist could uphold Roe seems to indicate his belief that abortion is a legitimate constitutional right, and seems to indicate what he means by a "strict constructionist."

Yes, Bush didn't volunteer that a strict constructionist could uphold Roe but he wasn't asked that specific question so we don't know his answer. As Agrippa shows in his quotes, when asked whether his nominee would overrule Roe, Bush replied that he has no litmus tests on the issue which, by definition, means that there are potentially some strict constructionists who wouldn't overrule Roe. Otherwise, strict constructionist would be a de facto litmus test on Roe.

More importantly, when it came time to act, Bush nominated Harriet Miers who has the same strict constructionist credentials as...well you know what. Which just shows you that parsing these comments is ridiculous. Giuliani and Bush have identical positions on judges and the only reason why the former is being given a hard time is that he is personally pro-choice. Yet, somehow Bush's personal views on abortion didn't prevent him from nominating Harriet Miers so I don't see why Giuliani's personal views on abortion would prevent him from nominating someone like Alito or Roberts, especially when conservatives will be automatically skeptical of his choice, so he won't be allowed (politically) to pick a blank slate like Souter.

A very encouraging piece IMO:

http://article.nationalreview.com/print/?q=N2ViNzlkZWFkNDc5Y2IwN2IzMWZmY...

In response to your statement, "No matter how bad we think he is on some issues, the worst Republican is always better than anybody on the other side," are you speaking only in reference to the current D and R presidential candidates, or more broadly of D and R politicians? If the latter, I disagree. Would you rather have a 50-50 Senate with Lincoln Chafee or Zell Miller, Sam Nunn, Daniel Patrick Moynihan, etc.?

to compare Bush and Giuliani on judges. Rudy had every opportunity to take the federalism approach, which would have at least made enough people probably hold their breath and hope. Instead, he has gone out of his way to give pro-lifers the bird by refusing to come anywhere close to that position. He had an easy out. His refusing to take it makes his intent clear.

From context and from the person, it is clear that "no litmus test" does NOT mean remotely the same thing to Bush as it does to Rudy. Bush used it to shield his nominees from left. Rudy is using it to shield his from the right.

yes, in the tragic event that our choice is between Rudy and Hillary/Obama/Edwards, we must vote for Rudy. there are few who would say otherwise. but let us pray it doesn't come to that.

If Hilliary wins, a conservative could win in 2012. If Guilliani wins, a conservative can't win until 2016. In term of the judiciary, on the issues that matter most, neither offers a shread of hope. A third party candidate could, theoretically, win. That would be the only hope. Conservatives should take that hope, over the certainty of a liberal judiciary, otherwise.

Conservatives must reject being forced to take a preference between tweedle-dee and tweedle-are.

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 conservative action from conservative leaders,

If Hilliary wins, a conservative could win in 2012. If Guilliani wins, a conservative can't win until 2016. In term of the judiciary, on the issues that matter most, neither offers a shread of hope. A third party candidate could, theoretically, win. That would be the only hope. Conservatives should take that hope, over the certainty of a liberal judiciary, otherwise.

Conservatives must reject being forced to take a preference between tweedle-dee and tweedle-are.

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 conservative action from conservative leaders,