Giuliani's Troubling Record of Appointing Liberal Judges
By EzOnTheEyez Posted in Archived — Comments (18) / Email this page » / Leave a comment »
I'd like to refer everyone to The Politico's article based on an analysis of the judges that Giuliani appointed to three lower New York state courts.
http://www.politico.com/news/stories/0207/2957.html
I must say that it is very, very troubling. He seems to have mostly nominated a combination of liberal judges who struck down laws because they were insufficiently secular, and other judges who sometimes reached conservative ends by means of activist liberal methods of statutory construction.
The case mentioned to illustrate the former is a case in which the law prohibiting alcohol sales on Sunday was struck down because it was insufficiently secular and thus the judge deemed it to be an improper religious entanglement. The correct answer is that if the state wants to outlaw alcohol sales on Sunday (which I personally think is stupid, myself) it can. It doesn't have to give a reason, and it's possible that there was another reason. But regardless, it's not the judge's role to decide.
In a case mentioned to illustrate a case of a conservative end by liberal means, the judge denied a motion to dismiss prostitution charges because, "[s]tatutory construction cannot remain static while entrepreneurial creativity brings forth heretofore unimagined sexual 'diversions.'"
Now, in order to be fair, I think I should point out that this is New York City we're talking about here - one of America's great liberal bastions. And though there are some 9 million people - and a good deal of them lawyers - I wonder how many Scalia/Roberts/Alito-like strict constructionists/originalists actually A) live in the city or B) if they live in the city, would step down from their private practices to be a lower level state court judge?
But comments about how Giuliani didn't really particularly appear to be looking for anyone conservative...that's a little scary. It's scarier still when a judge who was ruled "not qualified" by the bar association for having a "gratuitiously rude and abrasive" behavior and who "flew off the handle in rage," was nonetheless approved of by none other than Charles Schumer! That's right...the same Charles Schumer who led the filibuster strategy against Miguel Estrada, Janice Rogers Brown, Priscilla Owen, William Pryor, Carolyn Kuhl, Henry Saad and also voted against both Chief Justice John Roberts and Justice Samuel Alito in committee and on the senate floor approved of Giuliani's judicial nominations. What reason did he give for this?
"Temperament is not at the top of my list," Schumer explained at the time, when asked why he supported the former Giuliani appointee. "Ideology is key."
So, maybe there's a good explanation for this, right? After all, Mitt Romney, with the help of a Federalist Society member in good standing, if you will, nominated some judges who weren't exactly rock-ribbed conservatives in Massachusetts. But he had to get his nominees through a 9-member Governor's Council - which only had a single Republican on it, so obviously Romney had to be very careful to nominate judges who could get through the Council. I thought that perhaps there was some similar explanation for why Giuliani would nominate such blatantly liberal judges to the courts - but there's not.
You see, like the Massachusetts Governor's Council, Giuliani, too, had a committee to get nominees through - but it worked the other way around. The committee gave Giuliani three names, and then the Mayor picked one. Well, Giuliani got to name ALL of the members of the committee. He could have easily gone to the New York Federalist Society and said, "give me your best to start screening and selecting judicial nominees." But he evidently took a different path.
This makes me much, much more nervous about Giuliani's potential judicial nominations, should be become president, then I was before. I'm afraid that Giuliani would make the same mistakes as our last pro-choice Republican president made and his predecessor who focused solely on law-and-order judges. That resulted in 2 blatant liberals (Blackmun and Stevens,) an underwhelming conservative dunce (Burger,) and a single great conservative justice (Rehnquist.) We're still paying for it with Stevens on the court, and I don't believe that we can afford to go 1 for 4 again in the future.
Before, my ranking of candidates was 1. Romney, 2. Giuliani, and 3. McCain. But with this, as much as hate to, I have to move McCain ahead of Giuliani.
The article in Politico is not very supportive of the conclusions you set forth in post #1, which you seem to reject in post #2. What gives?
I have no idea what you are confused about. My post is about The Politico article. You seem to be suggesting that my original post is somehow in conflict with the article. If that's what you're saying, I don't know where on earth you're getting that since I'm basically just describing the article. The Politico article seems to detail EXACTLY how I came to by conclusions in Post No. 1. So, you will have to be more specific.
The second post is, as I noted, not authored by me and it is not from The Politico. It is authored by Matthew Friendly over at ConfirmThem and I posted it here in full instead of linking because I thought it added a lot of value to the story in The Politico.
the robust theme of your first post. Will have to quote extensively, highlighting the conflicting text in bold:
"I don't think he was looking for someone who was particularly conservative," added Barry Kamins, a Democrat who chaired the panel of the Bar Association of the City of New York, which reviewed Giuliani's appointments. "He picked a variety from both sides of the spectrum. They were qualified, even-tempered, academically strong."
That is the kind of praise that will amount to damnation (not necessarily faint) among some of the people Giuliani will be trying to impress in Washington on Friday, when he addresses the Conservative Political Action Conference. The group is filled with social conservatives, for whom the effort to recast the ideological orientation of the federal judiciary has been a generation-long project. Giuliani already faced a high threshold of skepticism from many of these activists because of his comparatively liberal record on such hot-button issues as abortion rights, tolerance of gays and gun control.
Giuliani's judicial appointments continue to win good reviews in New York legal circles for being what conservatives sometimes say they want: competent lawyers selected with no regard to "litmus tests" on hot-button social issues. Many of these people were in the mode of Giuliani himself: tough-on-crime former prosecutors with reformist streaks and muted ideologies.
"He took it very seriously -- he spent a lot of time with these candidates," recalled Paul Curran, a Republican and former U.S. attorney who chaired Giuliani's Commission on Judicial Nominations. "He was looking for judges who were willing to enforce the laws."
The mayor of New York appoints judges to three of the state's lowest courts, the Criminal Court and Family Court, which deal with lower-grade crimes than the state's Supreme Court, the main trial court and the Civil Court, which deals in relatively small financial disputes.
When Giuliani took office in 1994, he inherited a system of judicial appointments created by one of his predecessors, Ed Koch, and designed to insulate the courts from political influence. Under the system, the mayor appoints members of an independent panel. Aspiring judges apply to the panel, which recommends three candidates for each vacancy. The mayor chooses among the three.
Giuliani, a former U.S. attorney, and top aides who remain close to him, Dennison Young and Michael Hess, reviewed the applications.
Giuliani cast himself in New York not as a conservative (he had actually run on the Liberal Party line) but as a reformer. Though at least 50 of his 75 appointees were registered Democrats (only six were registered Republicans), Giuliani also won praise for, some say, appointing fewer judges with ties to local Democratic politics than his predecessors.
"It was not people coming out of the clubhouses, which is what I'd seen earlier," said Charles Moerdler, a member of the Commission on Judicial Nominations who had served other mayors in the same capacity. "I did not support Rudy (the first time he ran) because he was too conservative for me, so I was very alert to that, but I didn't see any litmus tests on his part," he said.
Giuliani's judges serve across New York's courts, where they're more likely to encounter misdemeanant celebrities -- Boy George and Naomi Campbell have appeared recently in front of his appointees -- than they are to tangle with the Establishment Clause. Some, like a Family Court judge who ruled that an unmarried couple couldn't adopt, would please national conservatives. But many of their occasional forays into jurisprudence would likely make Scalia wince.
Re your post #2, you provide a critique of the Politico article that seems to refute the basis for posting article #1, but you don't critique the critique, which left me dangling. Of course, my dangling in the scheme of a complex world is not a big deal. :>) But I thought I would ask.
Sorry, I thought that the problems listed were just so glaringly obvious that I neglected to address them.
1. I guess that Giuliani might have picked judges from accross the political spectrum - just more liberals by an 8-to-1 ratio. Are you asking me to get excited about every ninth judicial nomination being that of a conservative while the other eight are stark-raving liberals? Ruth Bader Ginsberg and Stephen Breyer would fit the "qualified, even-tempered, academically strong," and "competant lawyers" criteria, and I certainly do not want ANY MORE Ginsbergs or Breyers! They may be good lawyers, but their method of judicial construction is antithetical to the type of strict constructionist/originalist we're looking for on the federal bench.
2. Fine. Giuliani didn't appoint Democrat political party hacks to the court - he just nominated committed liberals.
3. Ruling that unmarried couples can't adopt would ONLY please national conservatives if that's what the law actually said! Of course they'd support the law, and the proper enforcement of the law, but they wouldn't support a judge making that determination up out of thin air. You'd have to buy into the lame meme that conservatives are just as results-oriented as liberals and are just using this whole "strict constructionist" and "originalism" line as a ruse to achieve their results.
4. As I keep saying, the second post is NOT A COMMENT OF MINE. It is NOT MY CRITIQUE. It is a critique of the article by SOMEONE ELSE that I MERELY REPRINTED here for your convenience. I think it sheds light on the process that a judge has to go through in order to get on the bench much better than The Politico article. I don't know what in there I'm supposed to take issue with since Matthew knows better than I do about the procedural hurdles that Mayor Giuliani faced.
"Well, Giuliani got to name ALL of the members of the committee." This appears to totally wrong, in the comments section, (I have tried to verify and not been successful so far), it is said that there are 19 members and the mayor appoints 9. To me that's pretty significant for one thing and on another point, the article talks about a handful of rulings by 75 appointees in a city that is the equivalent or larger than most states on an economic basis. I would imagine with a docket as large as they handle there this is what was culled from possibly thousands of rulings? The ratio it would seem is fairly low of these certainly unseemly rulings.
Well done is better than well said. —Benjamin Franklin
That's another valid point that I intended to list after the point about there not being any conservative lawyers in NYC, but then forgot. Thanks for bringing it up. Just about any governor could be embarrassed by a ruling or two by a nominee of his/hers. There are probably some district court nominees from this Administration, even, who have a few rulings that - if that's all we knew - would make us go, "what was he thinking?"
I actually grew up in the Park Slope section of NYC where there were at least a few conservatives, (my mother actually ran for office once, nothing big just a local slot) so while it's not exactly a huge part of the population they do exist...
I grew up with political activism!
Well done is better than well said. —Benjamin Franklin
I know someone who is a big time buddie of Ken Mehlman from when they went to law school together (Barack Obama was in his class, too, btw) and who claimed to be one of these alleged rare New York conservatives, and he was telling me how great the Lawrence v. Texas opinion was and how glad he was that he saved Anthony Kennedy's life once when he pulled him back out of the street when he was about to be hit by a car or something.
I was like, you have got to be kidding! I totally would have let him get smacked. LOL
So...I came to the conclusion that when Ken Mehlman's best friends in NYC aren't strict constructionists, I don't know where you will find one in that city.
I grew up with comments like Nix on Kennedy, lol
Well done is better than well said. —Benjamin Franklin
by SamTheCat on 03.01.2007 at 11:49 AM Report Abuse
RE: Jerry Skurnik
"The independent judicial screening panel instituted by Koch and continued by Giuliani includes members not appointed by the Mayor. Some are appointed by judges and others by Law School deans."
I checked the code which was revised in 2002, but it says the Mayor appoints 9 of the 19 committee members, various judges appoint 8 and law school deans appoint 2. So it would take just one right-leaning judge out of the 10 to give Giuliani a majority if appointing more socially conservative judges than he did was important to him. I don't have time right now to cross check the political leanings of the presiding justices who had committee say at the time, but for the moment it seems like the general flavor of the article tends to ring true . . .
I have lots of opinions too, I will look for more factual information and update if I get it.
I have said over and over that I DO like Rudy, as far as my main and leading concern, national security, I just can't see the rest of the pack standing as firmly as he will.
Yes the social issues are important, BUT if we lose a port or a city to the radiation of a dirty bomb or biological weapon, which IS I believe the real issue, then who is going to be thinking about gay marriage, abortions and the rest of the stuff that they don't care for in Rudy's positions.
OK well before I start to rant or anything I think our candidates do need to be vetted properly, but posts like these or the spreading of disinformation perhaps, I believe, at this point is not helpful to OUR cause.
I'd much rather tear apart the other side.
Well done is better than well said. —Benjamin Franklin
I find it hard to believe that if Rudy hadn't put 9 stalwart Federalist Society members - out of 19 - that he wouldn't have been able to get more conservative judges on the bench than he did.
Re: national security, I think that Mitt Romney is an extremely effective executive who would be far above competant in a national crisis - and in averting a national crisis. If I thought that he would really "go wobbly" on us, I wouldn't be supporting him.
My short term memory and retention has been severely impacted by an ongoing illness and I missed the connection. I will try to remember to look up peoples affiliations when these negative posts come up.
Maybe I should do a Romney hit piece in return, that will make our party much better positioned against the democrats for next year. By then they won't even have to do opposition research, just come here and look for blood.
Well that's a fairly strong way of saying once again that while yes we do need to look at our candidates in depth, I totally oppose this tearing down thing we are stuck on.
If anything we should be picking apart the STRONGEST qualities of OUR folks and talking up the positive aspects and nuances of those positions in order to build the best candidate.
Only the democrats can get away with a "what we hate" approach, isn't it a principal of conservatism to be other than that?
Well done is better than well said. —Benjamin Franklin
I planted the story with The Politico so I could post it here at RedState. :-P
I'm supporting Romney because I have concerns about Giuliani for issues JUST LIKE THESE that were raised in The Politico. If I could choose any candidate to be president, Romney probably wouldn't be my frist choice, but he's better than all the Democrats and better than the GOP field from what I can tell.
Here, I'm not attacking Giuliani personally, I'm hitting his record - as relayed by The Politico - which is fair game.
If you would like to go out and find something about Romney, by all means do. As long as its honest. I've been more than willing to concede holes in this Politico story. Not only that, but I suspect that Democrats are worried about Giuliani being the strongest GOP candidate from an electoral perspective, and so I'm sure that they'd like to sink his nomination. I agree that Giuliani might very well be our strongest electoral getter, but I think we can nominate a more conservative candidate and still win. I think Romney is the most likely of those conservative alternatives.
No I'm not doing opposition research.
Rather what I think most people are doing wrong and my entire point about this was, THIS IS OUR GUY, are you afraid of him or Hillary?
If you like Romney, hey I have nothing against that, so sell me on his GREAT points, why is he a great candidate, not compared to our guys but to the DARK side.
I mean really, do you want to see a hit job on our guys or see the best in what we have to offer? Did you ever hear Reagan speak? The use of positive language and images, yes he could be tough, but he saved it for the right time and the right place.
I personally think this is the wrong time for the nasty stuff about our side when we have democrats to shred and positive things to learn about our candidates.
That is unless that your candidate can't win without a horrific primary that will leave our candidates so damaged by US that the other side wins by default.
It really is a simple concept...
Well done is better than well said. —Benjamin Franklin
1. It's not a hit job to point out deficincies in a candidate's record - especially from a conservative POV. What is the Democrat going to say in the general election, "vote for me because Giuliani is too liberal and nominated liberal judges to the court?" I think not. I'm not in the camp saying, "Giuliani shouldn't be nominated because he dressed in drage/lived with gay lovers and their dog Bonnie/etc." I'm saying LOOK AT HIS JUDGES! Among other policy-based things.
2. Nominating a president is about making choices. So, you don't just compare all the upsides of all the respective candidates, you compare their upsides v. their downsides across the field. You're proposal to just add up the positives is rather one-dimensional.
3. I'm voting for whoever the GOP nominee is in the general election
4. Giuliani's record on judges is not "nasty stuff." It's something that really needs to be addressed - especially since he's basically telling everyone, "don't worry about my social positions, I'll give you great justices like Scalia, Roberts, and Alito." This casts serious doubt on that. If all that his judicial nominees would have in common with Scalia, Roberts, and Alito is that they are intelligent lawyers, then I'm don't want that if I can stop it.
As I've said, I can easily vote for Romney, Giuliani or McCain.
Our choice as a party is to find the right candidate, one we are comfortable with and can support, that can quarterback a successful effort in 2008. (Therein lies my ongoing reservations about McCain, whose positions most closely match those of the Republican base - he's just awful as a party leader.)
It makes no sense to try and cripple one of the prospective quarterbacks in a scrimmage. Just let them play, then we watch the films, and then we make one an offer.
The Following is a post on ConfirmThem by Matthew Friendly that suggests The Politico article is misleading. I have cut and pasted it in full so that it can be judged for RedState readers' benefit.
...[T}he Politico has an article discussing the judges Giuliani appointed while mayor of NYC. The article claims those judges have tended to lean left, and thus Giuliani's past record of appointing judges conflicts with his present claims that he would appoint judicial conservatives.
This article is quite misleading. Anyone with even a slight understanding of NYC politics and NYC courts understands that the legal community in NYC is overwhelmingly liberal. The panels chosen to investigate and approve judicial candidates are controlled by the local borough Democrat parties. Thus, in general, the only candidates "approved" by these panels are overwhelmingly liberal Democrats. Ultimately, the mayor has almost no practical effect on the process, and is left to choose from the best of the worst, so to speak. Genuine merit or legal acumen rarely factors into the panels' approvals. Tus, there is an enormous difference between who Giuliani was able to pick in NYC and who he would be able to pick as president.
Another important consideration, which is mentioned in the article, is that the judges the mayor appoints hear and decide low level cases that rarely involve any of the issues a federal judge would hear. In fact, these issues are so banal and tedious they are rarely heard by the NY Supreme Courts, which are the trial level courts in NY, much less the Appellate Divisions and the Court of Appeals. The judges the mayor is involved in selecting sit in City criminal courts (mostly misdemeanor and petty stuff), the family courts, and the Civil Court, which is essentially small claims court. Needless to say, these judges rarely deal with constitutional issues, with major statutory cases, or with issues that have major social/cultural implications.
In conclusion, there is almost nothing to infer from Giuliani's NYC judicial appointments when attempting to guess who or what he might look to when selecting federal judicial nominees. The article is misleading and is an attempt to make conservatives (both judicial and social) doubt Giuliani and his commitment to place judicial conservatives on the courts.
http://www.confirmthem.com/greenburg_on_ginsburg
Post No. 2