Baseball Crank
Covering the Front and Back Pages of the Newspaper
July 16, 2007
POLITICS: Good Personnel Make Good Policy


400 years ago, in 1607, the first English colony was established in North America. From that time until 1776, there was no law of the British Crown applicable to the colonies, nor any federal law or rule between 1776 and 1973, governing abortion, either permitting it or forbidding it. The matter was recognized simply to be a question of local law, like other subjects of the general police power. And American presidential candidates - including the Presidents who appointed the seven Justices who made up the majority in Roe v. Wade - did not have any need to have a public position on abortion.

In a better world, all of that would still be true, and the man who is in many ways the GOP's strongest candidate for the presidency, Rudy Giuliani, would have a clear lead in the race for the nomination. (I've previously explained here why I am thus far supporting Rudy). While there are certainly other issues people have with Rudy, the single largest obstacle to his candidacy is the fact that many pro-life Republican voters simply cannot pull the lever for a man who will not denounce the moral evil of abortion, and who argues affirmatively for continuing to permit it. Thus are the wages of Roe, the bitter political fruit of a tree that is poisonous to the roots. A corollary of this is that a lot of conservative voters - myself included - are now going to be taking a long, long look at switching to Fred Thompson, a man who has stated and consistently acted on pro-life positions and argued with force and considerable charisma for conservative ideas, even though his record as a legislator is so much thinner than Giuliani's record as an executive that you'd think Fred was running for some lesser job, like the Democratic nomination.

For those of us pro-lifers who are willing to pull the lever for Rudy but are also still thinking about Fred, therefore, there is no priority more pressing than showing that President Giuliani would appoint the sort of judges who would send Roe to the dustbin now occupied by Dred Scott, Lochner and Plessy v. Ferguson and thus restore the federal status quo as it existed entering 1973, with abortion once again a matter for state and local law. Now, Rudy is taking an important step to show that as president he would appoint the right kind of judges. For that, he should be applauded - and skeptical conservatives and pro-lifers should keep the heat on him for more.

Mayor Giuliani faces three main obstacles in convincing both pro-lifers and principled believers in judicial conservatism (including the many voters who are both) that he would appoint judges who take the Constitution seriously enough that they would not support the continuation of a doctrine created from whole cloth without a shred of evidence that We the People ever consented to its inclusion in our governing charter. The first is a legal problem: other than the Vice President, who is elected by the people in his or her own right, candidates for public office are not permitted to promise jobs to potential office-seekers, and thus can't go around naming who they would pick as judges or Cabinet members. Candidates thus have to make do with dropping broad hints and sending signals about what kinds of people they will surround themselves with.

The second problem is self-inflicted; rather than run as pro-choice but anti-Roe, Rudy has been unwilling to admit that serious "strict constructionist" (as the popular term goes) judges would really have little choice but to reject Roe, saying in the first GOP debate:

Giuliani: It would be OK to repeal. It would be also (OK) if a strict constructionist judge viewed it as precedent and I think a judge has to make that decision.

Moderator: Would it be OK if they didn't repeal it?

Giuliani: I think the court has to make that decision and then the country can deal with it. ... states can make their own decisions.

Now, presidents generally don't quiz nominees on an abortion litmus test - if they did, the Senate would bring that out - but suggesting that he is agnostic on the issue doesn't inspire confidence in Giuliani's ability to get this issue right.

(The third problem, which I won't get into at length here, is Rudy's own record of appointing judges; suffice to say that while he appointed lots of tough-on-crime judges in New York City, his judges were at best a mixed bag on social issues. Hopefully I'll have time to return to this question in more depth at a later date.)

But with his position in the polls still strong yet still vulnerable, Mayor Giuliani clearly recognizes that there is more he can and must still do to shore up his support among those of us who view the judges issue as a non-negotiable price for supporting a pro-choicer at the top of the ticket. And that's why it's such good news - and good news even for pro-lifers who won't vote for Rudy but may get him as our nominee anyway - that he is doing this:

GOP frontrunner Rudy Giuliani will unveil his "Justice Advisory Committee" this week on a two-day swing through heavily Republican western districts of Washington, D.C., home of the first presidential caucuses in 2008.

The committee signals an important moment for building his relationship with social conservatives a he tries to convince skeptical Iowans he can compete seriously in the caucuses.

Former U.S. solicitor general under President Bush, Ted Olson, will chair the panel. Former Bush administration Deputy Attorney General Larry Thompson and filibustered judicial nominee Miguel A. Estrada will be among the "who's who" of conservative legal and judicial advisers to Giuliani.

Now, I assume that's a typo and Fox is referring to his swing through western Iowa (UPDATE: the Giuliani campaign drops us a line to say yes, he's in Iowa). Olson, of course, has been previously announced as endorsing Rudy, so the further membership of this committee will bear watching, but Estrada and Thompson are good additions.

Mayor Giuliani can still win this race, and he can still lose it. As has been true from the beginning, the single factor that will be the greatest difference between the two is whether he can close the sale on the kinds of judges he will appoint. Let's see more, and hope it's more like this.

Posted by Baseball Crank at 8:18 PM | Politics 2008 | Comments (8) | TrackBack (0)


I have to disagree with your assertion that Giuliani is the Republicans strongest chance. My problem with Giuliani is not just that he is pro-abortion. My problem is that position coupled with his various other negatives makes him unelectable in a national election. You and I may be able to enter the voting booth and pull the lever for Rudy, but not enough others would do likewise after several months of relentless negative attacks and coverage. If he gets the nomination, we will hear non-stop about the marriages, Kerik, alleged mayoral corruption, and a hundred other things intended to reduce his acceptability to folks that don't live on the coasts. The problem is the votes he will lose because of his positions will not be off-set by gaining crossover votes from Democrats since he is on record as being in favor of winning the war. In national elections we have had a gender gap that has fluctuated between a minor to a major problem. Well, if the Dem nominee is the first woman heading a major party ticket and the Republican nominee is a guy married three times with a very public case of adultery during the second marriage the gender gap could be twice what is has been at its worst in the past. I don't know if Giuliani would win a single state.

Posted by: largebill at July 17, 2007 8:57 AM

"Fred Thompson, a man who has stated and consistently acted on pro-life positions"

I assume that you deliberately included the "consistently" before "acted" and not before "stated", given that he has stated non-pro-life positions in the past.

And we'll ignore the LA Times articles, I guess, for the time being, although Fred's "I don't remember if I ever lobbied for a pro-abortion group" isn't really that impressive, is it?

Posted by: Al at July 17, 2007 10:27 AM

Are you similarly for local control re: marijuana?

Posted by: AstrosFan at July 17, 2007 3:01 PM

Are you similarly for local control re: marijuana?

Posted by: AstrosFan at July 17, 2007 3:02 PM

Yes. I can't see any basis for it being a federal issue, other than perhaps a federal interest in interdicting large-scale interstate trafficking (which is a federal concern since otherwise state laws would be irredeemably undermined).

Posted by: The Crank at July 17, 2007 3:06 PM

According to the latest AP poll, the leading candidate for President is...none of the above. That's among republicans. I know the next president is going to be a Democrat, but it's amazing to me how a viable Republican candidate can not be found.

Posted by: Rene at July 18, 2007 8:28 AM

Run Dick run...

Posted by: seamus at July 18, 2007 4:49 PM


I'm pursuing another angle to this on Al's site at Hear the Hurd, but he pointed me to your post, and I had a couple of questions as one pro-lifer to another...

First, you compared Roe v. Wade to Dred Scott, and I certainly agree they are similar in portent. But would you, then, support returning the question of ownership of slaves to the states, rather than having the federal government dictate that no American can own a slave? If that sounds abhorrent to you, then I would think returning abortion law to the states should seem equally so.

Secondly, how can I trust a self-stated "pro-choice" candidate to appoint pro-life judges, when I can't even trust self-stated "pro-life" President Bush (who promised to appoint pro-life judges) to appoint pro-life judges?

In the Partial-Birth Abortion decision, Gonzales vs. Carhart, two justices (Thomas and Scalia) wrote a concurring opinion stating that they did not agree with the decision's prevailing opinion that Roe v. Wade was grounded in Constitutional principles. If Bush's appointees (Roberts and Alito) had shared that opinion, they could have and would have signed, which means that we have every reason to believe they would support/uphold Roe v. Wade.

Just some thoughts! I'm curious to see your response.

Rensslaer/Ed Hanks

Posted by: Rensslaer at July 19, 2007 3:16 PM
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