Rudy and Roe. How Far Will He Go?
April 3, 2007
Is Roe vs Wade bad law and is Rudy Giuliani willing to say so? Giuliani is banking that social conservatives will listen to his talk about strict constructionist judges and hope that it will be enough for some to vote for him. Senator David Vitter, a die hard social conservative told me judges is a big reason he's come out for Giuliani. This week in the Weekly Standard, Andrew Fersguson talked about this Roe issue in his article which you can read here. Read one key part below:
"In recent weeks Giuliani has tried to mollify social-issue conservatives by saying that as president he would appoint only "strict constructionist" judges--"who interpret the law and don't write it." It's an elastic phrase, widely understood to be a kind of code, and in a brief interview before the fundraiser, sitting in a suite on the top floor of the Four Seasons, I asked the candidate about it. Most people who call themselves strict constructionists, I said, would overturn Roe v. Wade. Did he himself, as a strict constructionist, think Roe was wrongly decided?
"What I mean by a 'strict constructionist judge' has to do with my whole view of the Constitution," he said, choosing not to answer directly. "A judge should try to figure out what other people meant--the Framers, Congress--when they wrote the words they wrote. If a judge starts from that premise, then we have a system of laws and not of whim. And I think starting back in the sixties, we had courts doing what legislatures should be doing, the Warren Court and all that. There's a real debate about some of the criminal justice decisions--the exclusionary rule, for example."
Did you think the court overreached in imposing the exclusionary rule, I asked.
"Some people will argue it did," he said. "But with Roe--a strict constructionist judge could come to either conclusion about Roe v. Wade. He could come to the conclusion that it was incorrectly decided, overturn it, or he could decide well, it's been precedent for so long now, it would be too disruptive to overturn it, so we leave it alone. I would leave that up to a judge."
Back in the fundraiser downstairs, he amplified the point.
"I think it's a bad thing in government when we start to play judges of morality," he told the donors. "My concern in government was crime. Morality is a concern of families, of churches and religious leaders. My thing is, you break the law, you go to jail. But morality--I have mine, you have yours. I can talk to you about it, but I'm not going to enforce it.
"As for abortion, I think it's wrong. However, people ultimately have to make that choice. If a woman chooses that, that's her choice, not mine. That's her morality, not mine."
The comments above suggest to me that Giuliani is trying to play both sides. This idea that a strict constructionist judge will say, "it's been precedent for so long now, it would be too disruptive to overturn it", that's a line right of the Arlen Specter Judiciary handbook under the chapter "Super-Duper Precedent". That philosophy WILL NOT fly with religious conservatives. If Rudy believes that, then the judges line on the stump speech won't have as much punch and could cost him some key votes. When will he say Roe was bad law? Does he believe that? If he does, he needs to come out and say it.
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