Carol Platt Liebau: Worrisome

Wednesday, April 04, 2007


Today, a CNN story discussed Rudy Giuliani's support for federally funded abortions and the following:

Giuliani also vowed to appoint conservative judges to the bench, though denied such a promise was a "wink and a nod" to conservatives in support of overturning Roe v. Wade, the landmark Supreme Court decision on abortion.

"A strict constructionist judge can come to either conclusion about Roe against Wade," he said. "They can look at it and say, 'Wrongly decided thirty years ago, whatever it is, we'll over turn it.' [Or] they can look at it and say, 'It has been the law for this period of time, therefore we are going to respect the precedent.' Conservatives can come to that conclusion as well. I would leave it up to them. I would not have a litmus test on that."

Depending on how thinly one slices the jurisprudential baloney, one could argue that it's "conservative" to adhere to stare decisis (a lot of liberals adopted this argument in the Bush years) -- but it certainly isn't the hallmark of a strict constructionist. By the "stare decisis uber alles" logic, of course, Plessy v. Ferguson would have been left untouched, and blacks and whites would continue to live under the "separate but equal" doctrine, not only a wrong but also a morally repugnant result.

The fact that Giuliani is hedging his bets like this is enough to make conservatives nervous, and frankly, it should. Of course Republicans have never imposed pro-life litmus tests to their Supreme Court nominees in the way that Democrats have insisted on strict adherence to pro-choice orthodoxy, but what's unfortunate about Giuliani's remarks is that they may demonstrate a somewhat protean quality to his insistence that he would nominate justices in the mold of Chief Justice Roberts and Justice Alito.

Republicans hear that and belief that Giuliani is supporting the concept of strict constructionist judges. Now, it's hard not to wonder if Rudy is just talking about people who are conservative politically or temperamentally -- but not necessarily judicially.


Blogger wile e coyote said...

Actually, I believe that Brown v Board of Education did not overrule Plessy's "separate but equal rule". Brown said that in the context of public education, separate in inherently unequal, so segregation failed under the Plessy test.

I do wonder what Guiliani was thinking, though, when he ran off at the mouth as he did on very politically sensitive topics.

2:55 PM  
Blogger Marshall Art said...

This decision of Rudy's definitely disqualifies him for my vote in the primaries.

10:29 PM  

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