Sometimes, Pragmatism Should Win Out
By Pejman Yousefzadeh Posted in Republicans — Comments (39) / Email this page » / Leave a comment »
Ed Morrissey explains why. Like him, I am not prepared to make too much of concerns that there may be a split in the Republican Party; as Ed points out, these threats are oftentimes made and never followed up on. But for those making the threats, perhaps they ought to remember what Ronald Reagan said: "My 80% friend is not my 20% enemy."
And even if Rudy Giuliani is only a 60% friend, that is better than the alternative. Interestingly enough, people like Hillary Clinton never say that they are willing to spend years in the ideological wilderness and make the perfect the enemy of the good.
Perhaps there is a lesson to be learned in that.
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Rudy would be fine as Secretary of Defense, Secretary of State, or Attorney General. But he'll lose more than the religious right in the general election, which means he will lose the general election.
Ed usually makes astute observations, but he missed on this one. The base he is referring to has gotten only rhetorical support, not real support for its issues. They are to the Republicans what the black vote is to Democrats. The only question is: which group walks first?
Go ahead and form your stupid little 3rd Party, I'm not scared in the least.
You'll probably get about the same amount votes Pat Buchanan did in 2000. Except you don't even have a candidate as well known as Pat Buchanan, and the likely Democrat nominee, Hillary, will galvanize the Right in a way we have never seen.
Christian conservatives, at least the intelligent ones, know that putting Hillary Clinton in the White House would be a disaster. They will vote for Rudy over Hillary.
Also, if Rudy gets the nomination, he'll certainly put a pro-life candidate in the VP slot, just to make sure these voters feel more comfortable supporting him.
These threats of the Religious Right sitting out the election are childish and ridiculous. If abortion is the only issue you care about, don't let the door hit you on your way out.
We'll have a President who believes in a constitutional right to publicly-funded abortions, but yeah, if there's ever a tie in the Senate, the pro-life VP will vote the right way.
That's a fair trade...
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It seems every comment I make on this board, you feel the need to make some lame response.
The whole pro-life/pro-choice label on a candidate is meaningless in terms of what the President can actually do about ending abortion.
If a President appoints constructionist judges that overturn Roe Vs. Wade, what else do you want? Giuliani has promised to appoint constructionist judges, I really don't know what other policy ANY President can construct that will make abortion illegal.
The pro-life label on a VP pick would have no effect on public policy, it would just be a label to pacify the one-issue voters in the Republican party in order to balance out the ticket.
And it will work because it won't take much to convince these voters to vote against Hillary.
Are you aware that according to rudy, a strict constructionist can uphold Roe? So how does his promise to appoint strict constructionists amount to a promise to appoint judges that will reverse that bad decision and its successors?
And I love how you think the religious right is so stupid that they'll be fooled by an admittedly-meaningless VP pick.
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That quote by Giuliani is the reason that I don't trust his potential picks for the courts. Saying that a strict constructionist can support Roe either shows an ignorance of Roe or of strict constructionalism or that he is dishonest. I prefer to believe the first explanation, but I still don't trust choices made on that basis.
Ever notice how its the social and/or Christian conservatives who need to be pragmatic, to give up what they believe? The more socially liberal among us never turn it around and demand of themselves that they consider becoming "pragmatic" and unite behind social conservatives to unite the party.
Very interesting.
A strict constructionist is also supposed to respect prior precedent. I personally don't agree that Roe should be upheld, but it in not a ridiculous argument to say that a conservative judge should not ignore established precedent, which unfortunately Roe is.
Our entire judicial system is built upon judges respecting prior rulings, and it is a heated debate among conservative legal scholars of when it is proper to overturn precedent. Rudy was saying a strict constructionist could also come to the conclusion that this ruling was an established precedent, and not to overturn it.
It's sort of like Federalism when it comes to many Conservative issues, sometimes it goes against our conservative instincts to only allow the states to form conservative public policy, and not use the Federal government.
Also, the Religious Right has never compromised anything to the more libertarian wing of the Party. Every Republican Presidential candidate since 1980 has been self labeled as pro-life.
If Rudy was nominated, he would be the first pro-choice Republican Presidential candidate in nearly 30 years.
If the more socially-liberal wing of the Republican Party was able to support these candidates, despite some disagreement, I think the more socially conservative wing of the Republican Party can form a conservative coalition with a candidate like Giuliani. I think that's a pretty fair deal.
At the end of the day, I really don't care if you want to vote 3rd party purely because of the abortion issue, your threats fall on deaf ears. I'm not going to be scared into a nominating a different candidate purely because a few extremists threaten to split up the Republican Party.
You're going to be surprised how many people don't think abortion is the only important issue our nation faces when your "Pat Robertson" candidate gets less than 1% of the vote.
Stare Decisis is a common practice in our justice system, but it's not itself settled law.
Socialism doesn't work. It looks nice on paper, but it's been tried and it's failed miserably every time (usually accompanied by widespread death and suffering).
Proud member of the V.R.W.C.
The problem is, "When is something settled law?"
I would like to see Roe v. Wade overturned because it was such a poor decision that was symbolic of judges legislating from the bench. There is absolutely no basis for the decision contained in the Constitution, and even liberal legal scholars have admitted the decision was poorly reasoned.
But you can make an argument that Roe v. Wade has essentially been upheld for the last 40 years, and is thus settled law that is to be respected by future courts.
Constructionists judges, however, are much more likely to overturn Roe than libera "living document" type judges.
Bottom line, a Democrat-nominated, liberal jurist will never overturn Roe (for a variety of reasons), but a conservative constructionist judge is much more likely.
There is no such thing as "settled law" that is contrary to the Constitution. As below, precedent is absolutely meaningless if the decision was wrong.
That's your point of view, and frankly, I agree with it. However, the ONLY justice on the Supreme Court who agrees with it is Clarence Thomas. ALL of the other justices, including Scalia, believe that some things have become so ingrained in our system that they should not be overturned.
So it comes down to where you draw the line on that for those people.
“I am telling people loosen your ties, fire up the coffee pots, get ready for the weekend, ... We've got a lot of work to do.”
- John Bolton
You fail to note that according to some legal scholars, Roe WAS overruled sub silentio by Casey in 1992. The whole basis and standard of review was dropped as were portions of Roe itself. Also, by NO means can either Roe or Casey be considered settled or law.
See my post at the bottom as to your references on "religious right" and "Christian conservative." And I don't believe most people here support a third party, though a few may opt to leave that part of the ballot blank. I think you missed the discussions we've had on how neither the church nor these so-called "religious leaders" like James Dobson dictate our votes. Indeed I wish they were not the ones focused on the issue, as I do not like seeing it tied to religion. Furthermore, I refuse to consider anyone an "extremist" for thinking that the cruel, violent, and inhumane killing (including torture) of millions of innocent children every year is the most crucial issue facing the nation.
Strict constructionism has nothing to do with stare decisis. There are two different and separate concepts. If you don't know what you're talking about may I suggest keeping quiet so that your ignorance is not exposed?
The distinction drawn between Alito/Roberts and Scalia/Thomas on an abortion case in which the former would not join the latter proves that.
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Read This article by Charles Krauthammer
http://www.realclearpolitics.com/articles/2007/05/roe_not_giuliani_is_th...
Also, if you disagree with my opinion, fine, but being personally insulting is just childish.
I find it ironic that you of all people should whine about being insulted on this thread. Some of your statements:
[Addressing Christian Conservatives] "Go ahead and form your stupid little 3rd Party, I'm not scared in the least." Nothing chisldish sounding here!
"Christian conservatives, at least the intelligent ones, know that putting Hillary Clinton in the White House would be a disaster. They will vote for Rudy over Hillary." Clearly implying that Christian Conservatives who will not vote for Guiliani, myself and many others here, are unintelligent.
"If abortion is the only issue you care about, don't let the door hit you on your way out." A slightly politer way of telling me and others who deeply care about the right to life to f*** o**.
"The pro-life label on a VP pick would have no effect on public policy, it would just be a label to pacify the one-issue voters in the Republican party in order to balance out the ticket." Apparently, you think we Christian Conservatives are so stupid that you can just toss us a bone and we won't know that it's just a meaningless ploy to get our vote.
"Do You Know Anything About The Law?" That statement was not in the least bit condescending, was it? (Even if you had been correct, which you were not!)
"I'm not going to be scared into a nominating a different candidate purely because a few extremists threaten to split up the Republican Party." Christian Conservatives are "a few extremists."
Stare Decisis and "constructionist" judges are part of the same overriding conservative judicial philosophy.
You can't be labeled a "constructionist" judge if you're an activist judge that totally ignores prior precedent. The two philosophies totally contradict each other. That is what got us to Roe Vs. Wade in the first place.
That doesn't mean every bad decision has to be upheld, but it does mean that the judicial branch has to give extra weight to decisions that have become settled law.
It should be a "big deal" when established law is overturned.
Judges are supposed to rule based on the Constitution. Feel free to point out where stare decisis is mentioned in the Constitution. Precedent is absolutely meaningless if it was not the correct ruling.
Activism has nothing to do with precedent, it refers to judges who decide cases on a non-constitutional basis. No bad decision should be upheld.
Precedent is not law. It is a court ruling. The two are not the same.
Stare decisis is an inherently UNconstitutional concept. By establishing it, the judge makes law (which is outside his or her role); by following it, they follow something other than the Constitution or federal law (also outside the bounds of their established role in the Constitution).
It ought to be completely abolished as a practice.
It should never require a compelling reason, new information, or even a "big deal" for a justice to overrule any prior ruling.
I read the article. It's a fine piece. Nowhere does it say that strict constructionism and stare decisis are one and the same or even that the two concepts go hand in hand. Since you seem to have some difficulty understanding the distinction between the two, let me spell it out for you.
1. Strict constructionism. Krauthammer calls it "the common conservative view that we don't want judges citing penumbral emanations and other constitutional vapors to justify inventing new rights they fancy the country needs." Also see http://en.wikipedia.org/wiki/Strict_constructionism. Note that there is no reference to stare decisis in this article.
2. Stare decisis. This basically means respect for precedent. Wikipedia gives more elaboration. See http://en.wikipedia.org/wiki/Stare_decisis. Note that there is no reference to strict constructionism in this article.
They are separate concepts and should not be confused.
Personally, I am extremely skeptical of the bona fides of any judge who claims to be a strict constructionist, but would vote to uphold Roe on the grounds of stare decisis. The concept of stare decisis is weakest when it comes to constitutional issues. See Smith v. Allwright, 321 U.S. 649, 665 (1944)("[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.") Roe is the antithesis of strict constructionism. Given how strongly Roe violates strict constructionism, any judge who is supports Roe in the name of stare decisis seems like a very faint hearted strict constructionist to me.
The entire article revolves around the idea that constructionist judges are obligated to respect precedent or "stare decisis". I never said the terms are one in the same, just that the concept is an integral part of the overall judicial philosphy of what we call a "constructionist". I'd love to know a legal scholar that says any differently.
Mr. Krauthammer uses the article to illustrate how a constructionist judge could come to the conclusion that Roe should be upheld because of the jurist's conviction that settled law should be upheld, esssentially echoing what Giuliani was ridiculed for saying.
Krauthammer was saying a constructionist judge, by definition must respect prior precedent in the law.
You seem to be the one having difficulty grasping this concept. If you disagree with my analysis, how about challenging it instead of calling me ignorant.
BTW, I haven't I may paint a broad stroke when I say it's ridiculous for the extremist pro-life community to form a 3rd party, but I'm not singling out any individual poster and calling them stupid.
Usually when posters start getting personal, they're at the losing end of an argument.
My effort to educate seems to have failed. ALL judges are obligated to respect precedent. Stare decisis simply is not "an integral part of the overall judicial philosphy of what we call a 'constructionist'." Strict constructionism is a philosophy having to do with the intrepretation of the Constitution and says nothing one way or another about how much respect to precedent should be granted. You really do not understand these terms. Here's some homework for you. Give me a definition of strict construtionism and a definition of stare decisis. Until you understand what these terms mean it is pointless to engage in any discussion with you.
Stare Decisis is an important principle of constructionism, go ask any member of the Federalist society.
I will tell you what you call someone who doesn't respect precedence, a judicial activist.
Scalia and Thomas wish to overturn Roe v. Wade. I would not call either of them judicial activists, but I suppose you have a different view.
This has got to be a joke. Does Redstate often get such parroting of one-line talking points from the left?
BTW, I never called you "stupid." I suggested you were ignorant about a couple of legal terms. There's a difference between ignorance and stupidity.
So a strict constructionist can be a judge who always ignores precedent from prior decisions when deciding cases? A reverence for prior precedent in applying the law plays no role in the overall judicial philosophy of what we label as "constructionist"?
I won't be "educated" on something I know is wrong, and I think it's abundantly clear you don't know what you're talking about.
The term "strict constructionist" means whatever the person using the term wants it to mean. I'm sure you are aware of Scalia's view on it, yet people still call him one.
"So a strict constructionist can be a judge who always ignores precedent from prior decisions when deciding cases?"
If every case they decided had precedent similar to Roe v. Wade, then absolutely, unequivocally "yes!"
A reverence for prior precedent in applying the law plays no role in the overall judicial philosophy of what we label as "constructionist"?
What's a "constructionist?" I assume you're talking about a strict constructionist? If so, then yes, reverence for prior precedent is not a part of strict constructionism. That's not to say that ignoring prior precedent is a part of strict constructionism either. Respect for prior precedent is simply something else. Strict constructionism is a philosophy of judicial interpretation and does not speak one way or another as to how much weight to give precedent.
Judicial restraint is a main ingredient of a constructionist philosophy, and that means, among other things, respecting precedent.
You may not agree with me on this, but most conservative legal scholars would, and I'm certainly not ignorant on this issue.
TexasGringo asked what a "constructionist" philosophy is, and I'd like to know myself. Even when you add the "strict" label in front of it, the term has no meaning whatsoever.
The "legal scholars," conservative or otherwise don't seem to agree on much these days. I certainly don't take any of these labels seriously anymore, and I don't think anyone really can. I was looking at a list of labels in Wikipedia. They described the precedent respecters as "doctrinalists" and indicates that what they call "strict constructionists" do not fit that label. Not a great source, but I don't believe there is a consensus on ANY label.
As it relates to this blog, Rudy has compared Scalia and Thomas (and those he appointed in New York City) to the types of judges he would like to appoint. Scalia rejects the "strict constructionist" label, and Thomas doesn't believe in respecting precedent. We don't yet know where Roberts and Alito fit in. Though no one else has mentioned it, Rudy's comments earlier this year touting his NYC judicial appointments have caused me to distrust him on judges as much as, if not more than, his view of Roe.
In any case, the "constructionist" label is invalid, and the "strict constructionist" one is meaningless. It's like saying he'll appoint someone "good." It carries a different meaning for each user.
The whole Latin maxim is: “stare decisis et non quieta movere,” which translates to stand by decisions and do not move that which is quiet. The "do not move that which is quiet" part is almost always left out, especially when the Left seeks to keep bad law in place, e.g., Roe and lots of Commerce Clause cases.
I submit that the issue of abortion has been anything but quiet since Roe.
In Vino Veritas
Just when I think that I am principled enough to split off from Republicans over someone like a Mitt or Guliani, I think of Hillary, cackling her way to world peace and women's rights for every village in the world. I quickly regain my senses.
The conservative religious leaders may well be willing to risk that prospect and bear responsibility for getting Hillary elected, they are that principled. But I will drag myself in from my death bed to vote against Hill, as will most other conservative women.
I am SICK and TIRED of those of us who consider life the most important issue being labeled or lumped in a "conservative Christian" or "religious right" category. It is dishonest and fails to convey the real truth. If people are upset over that one issue, then that is what all the reports should say rather than cloaking it in this "religious right" or "Christian" language. If someone is just as much opposed to the candidate's religion, positions on church-state issues, homosexual rights/privileges, teaching of evolution, school prayer, etc., then the label might be appropriate. But if life is the deciding issue for someone, it is unfair and deceitful (and slanderous and libelous in my view) to tie that person to the "religious right" or "Christian conservatives."
I am also pretty upset that no one seems to be getting the message that the vast majority of likely Republican primary voters do not know Rudy's position on life and may not know before the primary. If they did, I doubt he would win. I think that statistic needs to be out there in EVERY article that questions or discusses the conflict. Too many people are assuming or will assume that there has been some shift in public opinion, which there has not.
There are quite a few people who simply can't support under any circumstances a pro-choice, pro gun control northeastern politician for President. There's simply nothing anyone in the Republican establishment can do about that. How big is that number? 5% of the base?
If it's that big, and Rudy's the nominee we're toast. Because just picking up 5% in the mushy middle won't make up for the loss of energy and money from the base.