Insufficient Security
Why a Promise to Appoint Constructionist Judges is Not Enough
By Leon H Wolf Posted in 2008 — Comments (24) / Email this page » / Leave a comment »
Needless to say, it is too early to call a "frontrunner" for the Republican nomination in 2008, but virtually every self-selecting poll that has been conducted thus far has given handy leads to either former New York City mayor Rudy Giuliani, or (when included) Secretary of State Condolezza Rice. Conventional wisdom (which I believe, in this case) says that Rice will not run - it is almost certain that Rudy will. Evidence of Rudy's momentum abounds; I recently had an email exchange with a fellow conservative, who relayed the substance of a conversation he just had with a "self-described social conservative, pro-life, pro-marriage, etc":
She loves Rudy. She thinks Rudy will govern as a conservative. She is seized with the idea that Rudy was a staunch conservative during his mayorship of NYC. She believes that Rudy will become a social conservative during the course of his 2008 campaign. She is utterly unconcerned with Rudy's pro-gay, pro-abortion politics -- which he has espoused through his past QUARTER-CENTURY OF PUBLIC LIFE -- because Rudy is "inspiring" and "will keep America safe."
She likes Rudy despite his being pro-abortion.
But she dislikes Brownback because he's "bad on immigration."
The healing salve that is commonly offered to social conservatives concerned about Rudy's position on a number of issues - abortion in particular - is that Rudy will inevitably promise on the campaign trail to appoint "strict constructionists" to the bench, and any strict constructionist worth his salt would vote to overturn Roe v. Wade, so isn't that enough?
May I submit that it is not, for the following reasons...
In the first place, the record of Presidents who have made a similar commitment to appoint constructionist judges in the absence of a personal commitment to the pro-life cause has not been stellar. However, assuming arguendo that Rudy could be trusted to appoint Emilio Garza to replace Justice Stevens, and Roe fell, that would not by any means be the end of that particular story. Immediately into Congress would come a bill, sponsored by the Democrats, to write the basic tenets of Roe and Casey into codebooks. It is important to understand the political calculus behind this move.
The vast majority of the public does not support what Roe and its progeny stand for, as I have demonstrated here. However, due to a concentrated disinformation campaign about the true meaning of Roe, they have hoodwinked into thinking that they do. Therefore, it is likely that in the lull between when the decision is overturned, and the actual effect of it all settles in, the Democrats will seek immediately to capitalize on the issue. The pressure NARAL, et al will bring to bear will be enormous. At the Congress is currently constituted, I estimate that some measure or another (at least protecting abortion in the first three months absolutely) will likely pass.
The reason for this is simple: while it is simple for most of the Republicans in Congress to state pro-life positions when no significant votes are coming down the pipe, well under half of them have the personal commitment to pro-life principles that would allow them to withstand tremendous pressure from a coordinated campaign from the voters back home. Republicans in Northeastern states and Western states will be under a particular kind of pressure. Bottom line, a pro-abortion measure gets through the Congress in short order, especially if the Congress is under Democratic control, or smaller Republican margins.
What is needed, at that point, is a President with the personal pro-life convictions, and the long-range foresight to have the willingness to veto such a bill, and the strength to realize that things are going to be okay in the long-term. Bottom line: Rudy is not that candidate, and neither is Condolezza. It would be a cold comfort indeed for pro-lifers to support a candidate like Rudy based on a promise to appoint constructionist judges, only to have the legislative equivalent of Roe, which might leave the pro-life cause for dead as an issue, as it is in England.
It's too early to call anything for Rudy, or even to call him a frontrunner - but social conservatives need to wake up to the reality that everything will not be okay in a Rudy presidency, election-year platitudes aside. Let's nip this momentum in the bud, while we still have a chance.
« Dueling June Obama fundraising claims? — Comments (2)
Insufficient Security 24 Comments (0 topical, 24 editorial, 0 hidden) Post a comment »
Abortion is an important issue and I beleive it should be returned back to the states. However, the war on terror, fiscal responsibility and electability are bigger issues.
Rudy can and will beat anybody on the left. The damage that Hillary, Gore or Kerry would do to this country is unthinkable.
Abortion is an important issue and I beleive it should be returned back to the states. However, the war on terror, fiscal responsibility and electability are bigger issues.
I tried to make it clear that this post was for social conservatives.
P.S. Nominating the "electable" candidate is the surest way not to get a candidate elected.
"Our concern for human life must not be confined to the guilty..." - Coker v. Georgia, 433 U.S. 584, 616 (U.S. 1977) (BURGER, C.J. dissenting)
All I can think of with "electable candidates" is Bob Dole or John Kerry.
I'm not solidly against Rudy (personally I like him) as I am with McCain, but he's got a LOT to prove to me on constitutional issues to get my support in the GENERAL election, let alone the primary.
------------------------------------------
48 hours before the election showed Blanchard leading John Engler by 14 points.
Final:
Engler 51%
Blanchard 49%
him, I at this point can't get behind him, and my feelings on abortion are pretty strong.
I think I like Rudy in other areas pretty well, and if he were to win the primary, I would be able to support him over pretty much anyone the dem's nominate, I am just not convinced I could get behind him in the primary. He is going to have to build a lot of bridges, and show he intends to follow through, not just play typical politician double speak.
Which is why I always vote disapproval with Rudy on all these polls, and I seem to be the only one. All things being as they are now, I would vote for McCain over Rudy based on their comparative records on the pro-life movement.
I don't know why I always react positively for your stuff and kind of iffy on Thomas's stuff on the same issue. It's the same side of the fence...
Disclaimer: Works for Alan Schlesinger (R-CT). Volunteer, no pay.
It seems to be taken for granted by many people that Giuliani would be a terrific wartime president. I don't see what that is based on though. What do you expect that he would do in this regard that any other Republican, or Democrat even, would not? He would be up against all the forces which cause Bush so much trouble, the Dems, the MSM, the "international community", etc.
There's more to steering the ship than keeping a cool head. And as far as I know the Mayor didn't have half the country calling for his head at the time New York City needed him most.
--
"In this day and age, you're not going to get a fair shake in the media" -- Lance Armstrong
It is unknown how he would prosecute the war... and I happen to think he has some pretty big shoes to fill in that regard. As many problems as I have with W, the GWOT is not one of them. He's got to be in the 95th percentile on that issue, if not better. It would be very, very easy to do worse, even with a guy like Guliani. Would he get sucked in by the Colin Powell types? Or even worse, the Madeline Albright types? Much depends on what type of people he surrounds himself with, because he will be depending on those people for advice.
---
"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
There are plenty of people who served Repubicans who could lead him far astray from the direction President Bush has gone it. Guys like Scowcroft and Baker haven't exactly been too keen on the current War on Terror themselves.
--
"In this day and age, you're not going to get a fair shake in the media" -- Lance Armstrong
Giuliani has other issues. First, he has had two messy divorces. Giuliani must do pre-emptive releases of all damaging information currently private before the press prints it. Second, Giuliani's financial obligations to his ex-wife Donna Hanover are substantial. He may not be able to meet them as President, even though a POTUS earns about $1M per year. Third, Giuliani's connections to Bernanrd Kerik will be scrutinized. If there is anything that can be questioned, Giuliani will have to deal with with it. Lastly, and it's kind of a cheap shot to all but moonbat conspiracists and anti-Italian bigots, there is an allegation that Giuliani's father was some sort of low-rung gangster. AFAIR, his parents separated when he was very young, and his father was not much of an influence on Giuliani's life.
However, Giuliani also has a strength that is not much talked about. Giuliani ran the political interference which allowed the NYPD to crack down on crime. The crime reduction in NYC, perhaps more than anything else, triggered NYC's economic revival during the 1990's as it became safe to work in and invest in the non-prime areas. I do not recall any major pundit pointing out this relationship. If one takes this point writ large, it becomes that a safer America - whether from crime or terror or attack from another country - will be a more economically vibrant America in the long run.
The 2008 primaries will be very interesting. Let's hope that the perils of 2006 will be resolved by then.
chsw
...Giuliani and crime, at the risk of threadjacking Leon's point about abortion.
When Giuliani became mayor, living conditions here in NYC became vastly better, almost overnight. Why was it so hard for all his predecessors? Because if you speak out against violent crime, much less do something about it, you're instantly branded a racist, and unsympathetic to the "root causes" of crime. Fortunately for NYC, Giuliani wasn't afraid of that.
broken window syndrome, and put a stop to the petty stuff, which did lead to less crime in general?
Seems I remember people getting up in arms, because of prohibitions on pan handling, the window washers etc.
You're right here. It reminds me of 2000 when Bush was THE conservative's choice. He wanted a more "humble" foreign policy and to cut the size of government. He failed miserably at both. Given the fact that Rudy is going into the election cycle more liberal than Bush was in 2000, anyone who expects him to not vere to the Left like the (then) conservative Bush did is nuts.
This is why the other crucial plank of any Giuliani campaign-trail conversion to an acceptable candidate for pro-lifers (which won't include actually becoming a pro-lifer - he's said too much on that issue to credibly change) is to swear fealty to a federalist solution. The same goes for weak-kneed GOP Senators and House members, who can argue that the issue belongs to their own state. A Rudy who has dug himself in in advance on a federalist compromise on this and other divisive social issues could and would veto such a bill.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
we trust the follow through?
Promises made during campaigns are just that-promises-so would a promise to appoint originalist type judges be followed through, or will they just be the "I am saying this to get your vote, oops can't do it now" type promises?
That is where a Guliani would worry me.
So in the end the primary turns into-who do you trust to keep their promises type election.
There is NOW WAY that Giuliani gets the Republican nomination.
About Bush---I keep having to remind people---BUSH RAN AS A COMPASSIONATE CONSERVATIVE...Hello...he ran as a big spender!Too many people PROJECTED on to Bush what they thought that meant.
He kept a BIG promise...Perscription Drugs for seniors.
At least its a REPUBLICAN plan..the dems wanted to spend twice as much. And don't think the issue was going away...Dems brought it up EVERY ELECTION CYCLE. We got it done! How nice NOT to hear about it THIS ELECTION cycle.
In that mystical place were you imagine the perfect Republican candidates I suppose you can afford to spit on a proven leader like Rudy for the sake of a few social issues which are no where close to being resolved by presidential action anyway.
Hey guess what? we gave you the two Bush's. They were "right" on the social issues and foreign policy and not much else.
Maybe its time those of us who are concerned about immigration,
fiscal responsibility, and lack of clear leadership got our way for a change.
"Nothing works like freedom, Nothing succeeds like liberty"
Kyle
(1) It's not a given that Hizzonner will be "right" on your issues.
(2) I'm not aware that we've had "our way" yet.
-----------
Even those who learn from history are surrounded by those doomed to repeat it.
Giuliani would likely be as bad, or worse, than President Bush on immigration. His own family's immigrant history seems to render him incapable of looking at the situation from any perspective other than an emotional one.
I'd like to see the evidence that the criminalization of abortion is a winning electoral strategy on a national level. Even the current President Bush, whom I think is more sincerely devoted to this goal than any of his predecessors, has repeatedly stated that the public is not ready for such a policy. Anti-abortion rhetorical is costless so long as Roe v. Wade provides cover; however, if criminalization becomes a realistic possibility, we should expect a large electoral swing to Democratic candidates. I for one dread that prospect.
First of all, the timing of a possible overturning of Roe would be important. If it happened far enough away from the next election, then by the time of that next election, the public will have realized that they had been lied to and misled about Roe. Abortion would not suddenly be illegal nationwide, and in those states with the strongest pro-choice sentiment (i.e. deep blue states), existing liberal abortion laws would take effect, and/or new ones would be enacted. Republicans in those states should be insulated by that. In those states with the strongest pro-life beliefs, more restrictive laws would be enacted, and it doesn't really make sense to expect pro-life Republicans to suffer in such states.
So basically, it wouldn't take long for the public to realize that the sky hasn't fallen with the overturning of Roe. Both parties would have to be careful not to go too far in trying to pass new federal laws.
But you need to look at the electoral ramifications from the other side; i.e. if Roe remains the law of the land. If this happens, then it goes to reason that either the Democrats will retake the White House and reestablish a solid leftwing majority on the Sup Court, or Bush and succeeding GOP Presidents do not successfully put more conservatives on the High Court. Whatever the case, you have to remember that most judges, like most people, follow a certain pattern. Most pro-Roe judges are terrible on most other issues as well (Souter, Ginsburg, Stevens, etc), or they become increasingly bad as time goes on (O'Connor and Kennedy). On the other hand, most anti-Roe judges are good on most other issues (Scalia, Thomas, Rehnquist, etc). Now I know that some believe Chief Justice Roberts will prove to be a vote to sustain Roe (out of respect for precedent I guess), but will refrain from setting similarly bad precedent on other issues. If so, then Roberts would probably be unique, and we shouldn't count on finding many like him.
So again, most judges follow a pattern. They are mostly bad or mostly good. So if Roe survives, then that most likely will mean that we can expect equally bad decisions on other issues. And the biggest one in the Culture War is marriage. And this is where I finally get to the point; if the Sup Court imposes gay marriage/civil unions, then it will be against the will of the people overall, but it will be a shot to the heart of the Christian conservative base of the GOP. This base has persevered in the face of a hostile court for decades, laboring on behalf of the GOP in the hopes of finally righting the Court and restoring the Constitution to its proper understanding. They have helped give the GOP enough victories that this battle should have already been won, and it would have had Reagan and Bush the Elder not screwed up so badly in picking Sup Court jutices (2/5 is great in baseball, but its terrible in SCOTUS nominations). Despite these disappointments, the base has not been deterred and has kept up the good fight, and now we are again on the brink of finally establishing a conservative majority on the Sup Court. But it will take at least one more, and maybe two, appointments, plus the enduring health of Scalia. With the age of Stevens and Ginsburg, the opportunities could come fast.
But if we fail to achieve this soon, then we can expect a SCOTUS imposition of gay marriage nationwide in the next 5 yrs or so. If this happens, and if the GOP is unable to thwart the Imperial Court (via an Amendment or some other means) in a timely manner, then I don't think we can fully appreciate how badly the base will be disheartened and disillusioned. They will see that they have lost on the two biggest social/cultural issues of the day, not in a fair democratic fight, but by the usurpation of an activist, arrogant judiciary. They will see that years of toiling for the GOP will have been for naught. They will conclude, correctly I might add, that voting doesn't make a difference. And then they will stop voting en masse for the Republican party.
On the one hand, many Republican elites will be happy about this, as they'll finally be rid of an embarrassing part of the party, but no the other hand, finding replacement voters will not be easy, and will probably be impossible. Then the Democrats will dominate.
So the point is that (so long as the judiciary is supreme) we really need good judges on the Sup Court, and a good judge is probably an anti-Roe judge. Its better to just go ahead and cross the Rubicon and get rid of Roe, and then see what happens. I think the GOP would be just fine.
Of course, the real solution is to do something about judicial supremacy, but I think that's a pipe dream.
I agree with your views on Roe vs Wade because I agree with your disdain for judicial supremacy. Today's district court decision on the NSA surveillance is just the most recent sorry example.
John Roberts is virtually my judicial ideal. Interesting enough, I am not convinced that he will eventually vote to overturn Roe. But I digress.
I am not concerned about overturning Roe or, shall I say, I wouldn't be concerned about it were it not for the determination of the social conservatives to push the Republican Party to legislatively embrace the criminalization of abortion. It is the criminalization of abortion that the public will not accept on a national basis.
On philosophical grounds I favor a federalist model, the one overturned by Roe, in which each state enacts its own abortion regulations. The problem, politically, is that criminalization is and would be massively unpopular in many states; it would, I believe, overwhelm all other state issues, and if Republican legislatures try to ban abortion, the voters will vote out the Republican legislatures. An early test of my theory is being conducted (sort of) in South Dakota this year.
My guess is that the referendum to overturn the Soth Dakota ban will pass by a margin which is not close. I hope social conservatives will take notice that theirs is a minority position which, if pushed, will endanger Republican governance in many states.
With regards to South Dakota, if the ban is overturned by the PEOPLE, then so be it. That's as it should be. The people are a legitimate authority on the matter. It seems to me that the SD legislature may have went too far in not allowing for the popular exceptions. Of course, an innocent unborn life is an innocent unborn life, so I can see the point being made by the most ardent pro-lifers, and at least it is a consistent belief. But most people favor exceptions for rape and incest. I think it has to do with the lack of free for the woman which lead to such pregnancies. Whatever the case, had these popular exceptions been put in the challenged bill, then it would enjoy clear majority support from South Dakotans.
As far as Congress and national policy are concerned, I don't think that either party -- whether its the GOP with it current majority, or the Dems if they make significant gains this Nov -- would have the strength to pass a law to the liking of their pro-life and pro-choice bases.
But anyway, I get that our points are a bit different, but they both deal with the eventual electoral ramifications of an overturn of Roe. You think the GOP would go too far in too many places, and be punished accordingly. I think they would be a bit more wise and not go too far, especially if the SD law is overturned by the people. But my point is that if Roe does surive, then that will most likely mean that we will continue to have an activist judiciary, siding with the Left in the Culture War by imposing one democratically-rejected policy after another.
The next part of my point is that the Christian conservative base can only, and will only, take so much. Its not that they'll go over to the Dems, but I do think they will stop voting so heavily for the GOP. Many will simply retreat from politics altogether as they correctly determine that all of their past efforts haven't done anything other than slow the judicial assault on their mainstream, Judeo-Christian traditions. And if this happens, then the GOP will be in as bad or worse shape than what you envision should they overreach with pro-life laws.
So again, pro-Roe judges are typically terrible judges in general, whereas anti-Roe judges are typically much better. So it seems to me that a surviving Roe probably means an eventual imposition of gay marriage as well, and I think an imposition of gay marriage would be the straw that breaks the camel's back, and sends this huge part of the GOP's base to the political sidelines. Of course, immediately after such an imposition, there would be tremendous public opposition and support for overturning it, but being a bit of a pessimist, I think the GOP (and the handful of conservative Democrats) would fail to do anything other than offer feeble and failed resistance to such a ruling.
Over the long term, I think the GOP has more to fear from a demoralized and crushed Christian conservative base than it does from going too far on abortion.
I've seen your feelings with regards to Roberts echoed by others. During his confirmation, many of the 'experts' said that they thought he would not vote to completely overturn Roe, but would instead vote to allow for the restrictions most people incorrectly believe Roe allows for (and which account for some of its false popularity), and more importantly, would be a vote against judicial activism and usurpation on other issues. Again, if this proves to be the case, then Roberts would be unique on the Court, and I don't think you could count on finding another like him. Its most likely that future appointments would follow the general pattern, so we'd wind up with a Rehnquist-Scalia type, or a Kennedy-O'Connor-Souter type.
I've rambled on and repeated myself too much already, so I'll finish by asking you if you can foresee an enduring pro-Roe Court that is not also consistently bad on other issues? Do you think its realistic to expect a pro-Roe court to otherwise be restrained? Do you think its likely that a pro-Roe Sup Court would otherwise follow the actual Constitution?
Or, at an absolute minimum, let's force Rudy to publicly swing sharply to the right on this issue. Let's do the same for Romney, too, while we're at it.