Strengthening Constitutional Self-Government

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I’m Really Not Endorsing Guliani

...not that anyone would care anyway. But I’m getting a lot of pro-G emails. Here’s the best of them:

Why I’m tending to Giuliani:

For the obvious reasons, leadership and administrative ability, manliness, likability (generosity of spirit). But also because he is likely the most communitarian of the Republicans--the least Lockean. With regard to the social issues, any explicit renunciation of his previous statements on abortion and gay marriage would be deadly to his candidacy (Romney’s problem in spades). The political wallpaper of New York City we all know about. In the context of that wallpaper he was actually quite socially conservative. A friend of ours here recounts all the time how Giuliani forcefully defended families aagainst the attempt to forcefeed children "Heather Has Two Mommies." He would have much more credibility as president on life and sex issues given this background. I assume also he retains the residue of his Catholic education. For the moment all he has to do is say he will appoint conservative judges. Many religious conservatives down here...are leaning to him. The religious conservatives will be split and he can definitely win the nomination without their full-throated support, which will be better anyway.

Discussions - 23 Comments

If the constitution didn’t give the nominating power of supreme court justices to the president, I’d be far less concerned about a Rudy presidency.

The e-mailer is correct that Rudy cannot repudiate his pro-choice stance. But to satsify someone like me, Rudy’s going to have to say that he’s LEGISLATIVELY pro-choice, but that judicially, he’s some brand of originalist, which means he will nominate and back a justice that is prepared to overturn Casey, Roe, and maybe even Griswold. No, he’s not supposed to ask, acc. to the current bipartisan consensus, whether a justice would overturn a decision, but it’s going to come up, and the current consensus will not stand if it seems the crucial 5th vote is at stake. This means that real conservatives have to demand committment to a pretty stringent defintion of originalism from Rudy. If Rudy is willing to make such a promise, the press will be all over him for cededing his judges policy to the right wing.

Perhaps someone knows what Rudy has said about judges and judicial philosophy as it pertains to abortion.

last thought: originalism that retains a privacy-based-abortion-right cannot be originalism. That is, there’s no consistent rationale whereby a judge can be pro-Roe/Casey but otherwise conservative. So any such judge must be inconsistent, and unpredicatable. So even if abortion politics isn’t your thing, even if you’d rather let the 35-year practice stand, the hard truth is that unless you’re prepared to accept future O’Connors or Anthony Kennedys, and the damage they will do on a whole host of issues, marriage most portentously, you have to join folks like me and push for anti-Roe/Casey judges. You have to take the risk of being only LEGISLATIVELY pro-choice. I don’t think Rudy can pull such a stance off, even if he’s inclined to, and my guess is he isn’t.

Therefore, non-libertarian conservatives have no choice but to strenuously oppose this good man’s candicacy. The Devil that is liberal judicial activism makes us do it.

Carl’s probably right. Let’s hope an alternative who can win and govern well emerges.

I do not see Giuliani nominating a Scalia type. It seems likely that he would go with a Kozinski or Callahan, who may be more conservative than Kennedy, but would still only have a 50-50 likelihood of voting to overturn Roe and would have a 0 likelihood of voting to overturn or limit Griswold, Romer or Lawrence.

Since there is no genuine conservative in the top tier of candidates, any promise or implied promise to nominate only constitutionalists would be unreliable -- even if it was subjectively sincere in the candidate’s mind. Remember Bush’s appointment of Miers. The president seemed to sincerely believe that she was good enough. She wasn’t and wouldn’t have been, in all likelihood.
Frankly, we are choosing among less-bad options. Since we cannot have any confidence that a Roberts, let alone a Scalia, will be appointed (and likewise for the circuit level), we must focus on those things which are more easily determined. Such as: What exactly has the candidate DONE? What exactly has the candidate SAID (in contexts where it mattered, i.e., where words were not necessarily cheap)? How well does the candidate stir a crowd? How likeable does he seem? What issues does he truly understand, and how deeply? How well does he understand the Left, and what experience does he have in standing up to them? How smart is the candidate? And how smart does he seem to be? What about skeletons? Health? Energy levels?
Talk is (usually, not always) cheap. That goes for anti-abortion talk (in the primary/caucus stage), fiscal-conservative talk, talk about "a strong defense," and talk about "conservative judges."

He has serious problems on abortion, gay issues, guns, immigration, and his personal life. It’s remarkable that he is even being considered, and it says a lot about the weakness of the rest of the field.

His sudden profession of belief in federalism looks as cynical as any other politican out there. It’s about as credible as announcing that he just found God and has decided abortion is wrong.

And it is a complete mystery what people think he will do on the war. It’s not as if he can conjure up some extra divisions out of thin air.

Fine posts by David F and john...It is, in a way, remarkable that G. is being considered, and it does say a lot about the weakness of the rest of the field...But the rest of the field IS weak, and winning with G., who would be in many ways a good prez, is better than losing, and likely losing badly, with one of the weak guys. Or not?

Here’s evidence , if you need any, that Rudy can win, both a) the Repub nomination and b) the nation. Hat-tip Corner.

So it seems the choice facing conservatives is as follows. They probably can prevent a), but doing so gives them a substantially higher probability of losing b). Simply grant both these propositions for the sake of argument. So what to do? Well, it depends on whether we think an honorable Romney or McCain (or who-have you) loss is preferable to a party-dividing, perhaps O-Connorism enabling, Giuliani victory. I certainly think a Romney or McCain victory is quite possible, but the Giuliani camp has a powerful argument to make that their guy is much less riskier.

What we risk is a Dem president, probably in the HRC or Obama mold in power for four years, in an divided govt. or bare majority situation. Supreme-court wise, they will be able to preserve the status-quo by allowing liberal justices to retire with some confidence of being replaced by those of their mold. Security-wise, our enemies will be emboldened, although I don’t think the U.S. will beat a retreat as shameful as the Democratic abandonment of the South Vietnamese army post-Watergate.

So I say the consequences of a presidential loss are not that dire, and for that reason we should shoulder a greater risk of defeat for the sake of core conservative principles/strategic necessities, i.e. keeping the anti-abortion plank,not dividing the party, not confusing the judicial issue, not enabling O’ Connorism. Think long term.

Have at it.

For what it’s worth, just this morning, in a by invitation only meeting with top Republicans here in South Carolina, Giuliani, in answer to a question, pledged to appoint strict constructionists as judges and spoke at length of his long friendship with Sam Alito. He said he would have appointed Alito, and professed admiration for Roberts and Scalia. This is not considered cheap talk in SC, or at least it is less cheap than a public profession of recovered faith. I agree with the emailer that Rudy may be more genuinely conservative than is suspected, or in the absence of that, is manly enough to keep the more important of his promises. Even Nixon tried to keep his promise to Strom, but back then the only conservative judges seemed to be in the South!

6: Professor Lawler, thanks. I agree that we absolutely must win in ’08. Losing, no matter how honorably, is not an option. I would, however, reserve judgment at this time on whether Romney is "weak" or not. 7: Rudy can win the nomination and the election. But I’m not yet ready to say that Romney can’t. I suspect McCain would not win either. Nor would any of our minor candidates win the general. Nor would Gingrich. It appears we are down to Rudy and Romney, especially because I think very little of McCain as a potential president. 8: Your point about Rudy’s manliness and the relative credibility of his promises may be a good one. It would be well worth seeing what his track record is on keeping promises.

I recently saw a string of disturbing quotes from Rudy, from the 1990s. Identifying with the Rockefeller wing of the party, bashing Barry Goldwater (the Goldwater of ’64) and so on. Not good. Even more troubling is what seems to be his record on illegals while mayor.

Let me amend my comment about keeping promises: In some areas, promises can be kept pretty easily. In others, it depends significantly on events. In others, it depends significantly on Congress (which, I’m thinking, will still be Democratic). In the case of constitutionalist judges, it depends on intense scrutiny by the president, and by his people, asking the right questions (of the record, not so much of the prospective judge or justice), a good understanding of what constitutionalism is (knowing it when you see it). Having been in the U.S. Justice Department and a U.S. attorney (in NY City, no less), and having dealt as mayor with liberal courts that, as someone said, were "wired for the ACLU," Rudy may have more credibility when he makes such a promise than a Bush or a Romney or, God knows, a McCain. But ENOUGH credibility? Let’s remember how often SCOTUS appointments have gone wrong.

I agree that right now it’s Giuliani or Romney, and it’s Romney’s job to prove himself over the next year.

Question: Do we really want Roe overturned? I think not. Like it or not, abortion is a *political* issue. The morality of the pro-life cause cannot triumph (on the political level) except through political means. Political means are almost always gradual, especially when one is opposing the dominant culture on an issue. Roe should, pardon the terminology, die a death of a thousand cuts.

David Frisk, I agree with the spirit of your post, which is why I would like each state to vote on it. That can only happen if Roe goes, otherwise abortion on demand remains a fundamental right, that cannot be gotten rid of even if 99.99% of the voters wanted to. Those voters have to begin with ousting pro-Roe judges before they even get to vote on abortion as a political issue. BTW, I am not among those who think a right to pre-natal life is(i.e., could be) found in the Constitution. The 14th amendment says a rights-bearing citizen comes into being upon birth. It stretches originalism too far to say that "if the framers of the 14th knew what we know now...they would regard conception as birth."

"Since there is no genuine conservative in the top tier of candidates,"

I refuse to accept this, and I will continue to make this point. Who is deciding the "top tier?" Polls this far out are not decisive. They represent name recognition among a public that is largely politically disinterested. If you concede the "top tier" designation to a bunch of MSM types and Establishment money men, then why have a primary? That is what primaries are for. To contest issues of party identity, not chose between a few hand-selected, bland alternatives.

Ron Paul is an ideal conservative candidate. His weakness is that he is allegedly unelectable PRECISELY because he is an ideal conservative candidate. Have we sunk so low that we are running from the taint of ourselves?

If you must support a pro-War candidate then get behind Tancredo, who is also supposedly weakened by the fact that he also speaks the unvarnished truth.

Dan, I certainly admire Tancredo, but he will go nowhere. And you’re naive about the process.

Carl, I agree, there is no fetal protection in the Constitution. If any of the framers gave any thought to this question in the context of the Constitution, which I doubt, they would have assumed the good moral sense of the American people would prevail (on this kind of issue) at the state level. As for the 14th Amendment, it is so poorly written that I would be inclined to use it as little as possible. It has created so much trouble.

Roe does not declare an absolute right to abortion except in the first trimester, I believe. Because of this, significant restrictions have been upheld. Therefore, more can be upheld. And the absolute right in the first trimester can be gradually eroded by very modest legislation that a constitutionalist Court would consistently uphold.

David Frisk, i know I’m wading well into the pedantic zone here, and I sense that we basically agree on the key issues here, but just to clarify, two points:

One: when I say "Roe" I really mean Roe/Casey/the other key abortion decisions. Taken as a whole, those cases do establish a right to abortion over the whole term, as Hadely Arkes among others has shown, and which anyone familiar with abortion services could tell you. Roe’s faux-moderate trimester system is not the heart of the decision--it’s heart is basing a (to-be-expanded) abortion right upon the right to privacy established by Griswold. And it would be news to most jurists that that right isn’t absolute as far as it extends.

Two: yeah, the 14th is written poorly, and has been interpreted extremely poorly, but when you’re really an originalist, you have to abide by the less-than-brilliantly worded parts of the Constitution. That’s the deal. Lincoln accepted that deal even with a slavery-permitting Constitution, and we have to so with a rights-begin-at-birth Constitution, that is, one that does not require us to ban abortion.

"And you’re naive about the process."

Perhaps a little, but I don’t think I am as much as you may assume. I know the road for Paul or Tancredo is very much uphill. I know that if either got any traction the Establishment would go into smear mode, as they did with Buchanan. For now they are content to ignore them or treat them dismissively.

I don’t think I am naive. I am angry and frustrated. Frustrated that conservatives are so sheepishly going along with what the Establishment has decided.

I do not think conservatives are king-makers, but I do think they have veto power. They need to veto M, R, and G and say "Next."

The conservative M, R, and G apologists are thinking too conventionally, and are naïve about the changed process. The left has figured this out better than we have. Alternative Media, the internet, and multiple small donors allow for working around the conventional party apparatus. It worked to some extent for Dean and LaMont.

Here is a good link re. the problem Giuliani will have with conservatives.

Also, if Giuliani did get the nod, I am convinced many conservative and evangelical GOP voters would walk away. I certainly hope they would. If they would vote for Rudy then that would establish beyond any doubt that they really are a bunch of sheep.

Oops. With spaces.

Here is a good link re. the problem Giuliani will have with conservatives.

Also, if Giuliani did get the nod, I am convinced many conservative and evangelical GOP voters would walk away. I certainly hope they would. If they would vote for Rudy then that would establish beyond any doubt that they really are a bunch of sheep.

Yes, there is the internet and all that. It does not add to the power of conservatives, only to their potential -- two very different things. Most conservatives right now are endemically demoralized and passive. The existence of new media has not changed that. Frankly, the right is too weak and unfocused to nominate a conservative presidential candidate. We are paying the price now for our poor organization, tendency toward uninvolvement, and so on. That shortfall cannot be made up in 12 months. As for Rudy (or Romney, the only valid alternative) and the evangelicals: They need to reach an understanding. The hard-core social conservatives -- though I mostly agree with them on the issues -- have no right to hold the fate of this country hostage to their positions on abortion and gay rights. Even less do the gun people have such a right. And this is especially true given the alternative: President Hillary, Edwards, Gore, or Obamessiah the great phony.

David Frisk;

"The hard-core social conservatives -- though I mostly agree with them on the issues -- have no right to hold the fate of this country hostage to their positions on abortion and gay rights."

I suppose they have as much right to do so as the hard-core social liberals in the GOP, who seem to think that they may veto anyone they wish.

Neither side has this right. Let’s keep our eyes on the ball, which is to keep the Democrats out of the White House. Vengeance and prideful self-assertion within the party hurt this cause.

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