Carol Platt Liebau: An Incoherent Position

Sunday, May 13, 2007

An Incoherent Position

I watched Rudy Giuliani this morning on "Fox News Sunday" (transcript here, and the best thing he could do for himself is to stop talking about abortion -- the more he says, the more uncomfortable conservatives are going to become.

That's because his position is incoherent. As noted here, he says that he would be open to nominating Supreme Court justices who presumably think Roe v. Wade was wrongly decided. But he also says that women having the right to choose abortion is one of the two pillars of his abortion beliefs. Taken together, this would seem to indicate that if the Supreme Court struck down Roe v. Wade, he would be OK with that result -- and just believes in such a case that the states should enshrine abortion rights in their own laws.

Now, this is convoluted reasoning, but it could be defensible (insofar as anyone can follow it) if Giuliani had said that the jurisprudential basis of Roe was ridiculous and that the matter was one for the political system rather than the judiciary to sort out -- notwithstanding the fact that he reluctantly agreed with the policy outcome. Here's the problem, though: Giuliani also says that it's just fine with him to leave the whole issue to the judges:

They're [Supreme Court Justices are] free to take a look at Roe against Wade, take a look at the limitations. But I believe I should leave it to them to decide that.

If he believes that the abortion right is a fundamental constitutional guarantee -- like freedom of speech or free exercise of religion, for example, or other foundational rights in the Bill of Rights -- how can he be comfortable with turning the issue over to the states if the Supreme Court strikes down Roe?

But if he simply agrees with abortion rights as a matter of policy -- and not a matter of Constitutional law -- how can he stand by and allow an imperial judiciary to dictate policy from the bench? Isn't that doing what he has said all along he opposes, that is, legislating from the bench?

The less said about abortion, the better for Giuliani. The more he says, the worse it gets.

4 Comments:

Blogger msiguy said...

I really wish the Republicans would stop shooting themselves in the foot on abortion. There are lots of issues facing the United States and I understand how deeply felt the Abortion issue is.

But at the end of the day, if it comes down to Giuliani vs Clinton, any Republican, pro-life or pro-choice that doesn't pull the lever for Rudy, do do so convincingly for be making a huge mistake and will deserve what they get.

5:34 PM  
Blogger One Salient Oversight said...

Candidates should have a well-reasoned position on Abortion.

Even if they're Republican candidates.

1:45 AM  
Blogger wile e coyote said...

His position is not incoherent:

1. He personally opposes abortion.

2. He would not like to see the right to an abortion eliminated but is willing to have that right constrained by reasonable limits.

3. He would appoint strict constructionist judges.

a. If these judges upheld Roe v Wade (actually, Casey, which threw out Roe's reasoning and trimester rules in favor of an "undue burden" test), that would be OK.

b. If these judges reversed Roe (and Casey), that would also be OK.

i. Let abortion rights and restrictions be set on a state-by-state basis

4. There are more important issues to tackle, such as the war on terror and maintenance of a growth economy.

5. Accept that reasonable people can differ reasonably.

11:00 AM  
Blogger Marshall Art said...

It would be wrong to continually put abortion on a back burner no matter what else is going on in the world. I agree wholeheartedly that the war on Islamofascism is the paramount concern. But issues such as abortion signify the condition of our national character and that is no small concern. And our national character is sullied by the numbers of people who feel that there exists some God-given right to murder one's own child at any time for any reason, which is what current abortion policy provides for. The character of our nation is sullied by all those who put themselves in the position to even consider abortion, by all those who yield to the least little quiver of the nether regions as if attempts at self-control are futile. It's a shameful state of the nation and the truly wacky part is that those like myself are considered the weird ones for thinking beyond my own carnal desires.

Thus, if during the primaries, Rudy faces an equally compelling leader against terrorism and crime and the only thing that separates the two is that the other is staunchly pro-life, Rudy's out. But against any Dem in the general, gotta punch the card for Rudy. It's a no-brainer.

9:45 PM  

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