Why some social conservatives don’t trust Giuliani
By tadams1138 Posted in Law — Comments (5) / Email this page » / Leave a comment »
I don’t write this now because of any breaking news or any pressing need to convince voters. As far as I can tell most socons are not planning on voting for Giuliani as I write this. I write this because I found an article on The American Spectator by Matt Bowman called Staring Decisis in the Face, and it explains better than I could what has been worrying me about a Giuliani presidency. Matt Bowman writes:
judicially conservative lawyers need not favor overturning Roe. This is true because of another phrase, "stare decisis"…
… A judicial conservative can disagree with Roe's judicial activism but still refuse to overturn it, believing that doing so may cause greater harm.
…
what one thinks about abortion in itself, viewing it either as a grisly procedure, or a necessary evil, or a liberating choice, is a crucial factor in deciding whether to overturn Roe, even if a justice thinks that Roe's reasoning is nonsense.
One can be a judicial conservative without being a social conservative. Both views will at least indirectly affect the outcome of abortion decisions. This is widely recognized, but its significance to presidential politics is often overlooked.
Matt Bowman goes on:
Giuliani also advertises the conservatism of his Justice Advisory Committee. An examination of the committee's all-stars shows it may instead be a magnet for social liberals.
Professor Charles Fried has opposed overturning Roe. Pro-life groups have been hostile to the new Attorney General Michael Mukasey, a prominent committee member, while liberal court activists have warmed up to him. Supreme Court papabile Miguel Estrada and Maureen Mahoney are judicial but not social conservatives, according to renowned Supreme Court insider Jan Crawford Greenberg, who says that President Bush's advisors didn't consider Mahoney for the high court because "they didn't believe she was conservative enough." Committee chairman Ted Olson seems to spend a lot of his time insisting that Giuliani's judicial conservatism "doesn't mean overturning Roe is part of that agenda." Professor Steven Calabresi is reportedly participating in the committee despite, not because of, his own opposition to abortion.
I couldn't have explained it any better. I've heard the arguments and Giuliani's own 12 Committements, but all I could ever muster was "I don't know what he calls 'strict constructionist' is what I call 'strict constructionist'" or "Well, I don't believe him". I think this fear that socons have should be felt by fiscons as well. We need assurances that stare decisis won't trump the law (or lack thereof) or emminent domain opponents could suffer the same setback that pro-lifers fear. I don't believe conservative activism is the way to go, but it is no longer enough to know that a judge will be a strict constructionist since stare decisis has been so infected with liberal activism. We need assurances that a judge won't treat the constitution as a "living, breathing document", and we also need judges who know that Stare decisis is fo' suckas.
Robert Bork
Robert George
Mary Ann Glendon
"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke
...that I didn't trust Giuliani as far as I could throw him with respect to his "strict constitutionalist" claptrap.
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“You are not only responsible for what you say, but also for what you do not say. ” - Martin Luther
Fair enough. I wouldn't expect people who are social issues or one issue abortion voters to vote for Giuliani in the primaries. But if you are fiscally conservative, conservative on foreign policy, and moderate on social issues like me, Giuliani is the perfect candidate.
I do want to point out that I believe that illegal immigration, school choice, crime, and public decency are social issues as well and Giuliani has conservative positions on these issues.
Bowman's deconstruction of Giuliani's judicial committee is especially necessary, especially how many of us have taken for granted that it was some conservative all-star group that we didn't need to think about. Yes, judicial and social conservatism don't always mesh (and they shouldn't, especially if siding with social conservatism would be a vote against free speech) but Roe is bad law. Period.
No one of good character leaves behind a wasted life - John McCain