Strengthening Constitutional Self-Government

No Left Turns

Random Observations

1. Thanks to all the CHANGE AGENTS who came out last night at Georgetown to hear my message of hope and love. My apologies to Dr. Pat for being so hard on his furniture, although my lawyer’s story is the table attacked me.

2. The latest studies show a dead heat in FL, and that means Romney has slipped a little. Huck has stopped slipping. Giuliani remains at 18% (which is about as interesting at this point as Francisco Franco is still dead). (That’s just a joke; I’m not calling Rudy or anyone else a fascist.)

3. Nationwide, McCain is not extending his lead, although he still leads. Huck is still a strong second and is apparently not slipping. Romney is third and probably needs some mo’ (in addition to all his money) to show well enough on February 5.

4. I didn’t see the debate last night. But the best comment I read is that it was dull and substantive, and so naturally Romney prevailed.

5. In talking to various experts in DC, I learned that conservative lawyers and other constitutional types really don’t want McCain. They’re pretty sure he’d appoint a Kennedy or Souter type to the Court just to show his integrity and freedom from conservative prejudice. I’m not saying they’re right... And the few who say they’d prefer even Giuliani are clearly suffering from deranged hostility to McCain syndrome.

6. Other inside-the-beltway types are for McCain because they think the deranged attacks on him are deranged. Or at least that’s what they say. Most people actually don’t think Romney can win, and it’s possible John could.

7. Everyone agrees with Yuval and David Frum etc. that Republicans, unless they get smart and start offering credible alterntives, will get slaughtered on the domestic issues.

Discussions - 21 Comments

If the party rejects Giuliani, that will ensure the Democrats win, so who McCain would or would not appoint becomes an irrelevancy.

To devise a solution to the problems that beset the GOP, you must first identify and understand the origin and cause of those problems.

The problems boil down to A problem. Which is Bush, and all things Bush.

Everything about him is objectionable, his style, his personal tics, even his selection of ties, they look like they've been picked off the rack at K-Mart! That light blue tie of his that he's been wearing for almost a decade should be taken out and burned, cremated and buried! And his suits too! They don't even look like they're properly fitted to him, he looks like a slob, and that's when he's in a suit! It's unbelievable that his staffers would let him go about like that. He's the President of the United States, not some down on his luck traveling salesman! Reagan looked like he walked off a Hollywood set any hour of the day or night. NOT BUSH! I suppose looking sharp is something else that flies in the face of some arcane aspect of the Blue Blood code. Michael Deaver wouldn't have allowed him to go around looking like that, that's for damn sure.

But beyond personal idiosyncrasies, Bush is known for managerial incompetence, domestic cluelessness, overfondness for international forums and a pusillanimous unwillingness to wage war upon the enemies of the United States.

All of these things AND MORE, combined to form a witch's brew that has left our party inert, injured and stricken on the political field.

If Bush, {and the problems of this Bush administration were foreshadowed in the previous} is the problem, the solution then must consist of all things that are NOT Bush. Id est, intelligence, force, energy, confidence, a robust desire to close with and destroy America's enemies. And that's just for starters. Since managerial incompetence has been a consistent theme of this nightmarish administration, COMPETENCE must be part of the response.

Our candidate must be the anti-Bush.

So find the guy who is most UNLIKE Bush, and select him. Find a guy who would throw up at the thought of standing there before the cameras holding hands with a creepy member of the house of al saud. Find a guy who would never give a thought to appointing a Karen Hughes anywhere in the Executive branch. Find a guy who knows America needs a REAL energy policy, and not ridiculous gimmicks. Find a guy who can string together two coherent English sentences.

Get the idea?

Some might consider that over the top, ........................ it's NOT! A GOOD CHUNK of what we're going through as a party is DIRECTLY attributable to the attempt to overlay the personal style of the Bush family on the Republican party. Just ask yourself how many times have you heard Republican and conservative commentators defend an action or an inaction of this President, by referring to "class." You got it from Limbaugh, got it from that adolescent cheerleader, Fred Barnes, got it all the time. Bush would be attacked, his numbers would fall, he wouldn't respond, and instead of demanding a response from The White House, conservatives would wax enthusiastic about the non-response, about how much "class" it exuded. Ordinary Americans didn't pick up on the "class," they observed their President effectively conceding the truth of the things said about his administration, and the truth of the criticisms of the Democrats. The guy couldn't even be bothered to get out there and defend Libby! When defending Libby was synonymous with defending AMERICA'S war effort, and the causes therefore.

I must confess I absolutely despise the incompetence of this administration. Absolutely despise it! And I refuse, point blank refuse to utter so much as a single sentence in defense of it. How dare they saddle my party with this undeserved reputation for sheer idiocy!

The more I contemplate a McCain presidency the more it discomfits me...against his often solidly conservatives views (and apparently reliably conservative voting record) he pits an interpretation of the highest virtue of the statesman as a kind of perverse independence (Isn't MCain-Feingold a zealous expression of a romantic desire to make a candidate shorn of all committments, corrupt and reasonable alike?)...Taken to a hubristic extreme, he ends up with a immoderate critique of all partisanship, even when one's party promotes the wisest course of action. In a way, McCain's view of politics is just as fabular and self-aggrandizing as Obama's promise to trancend the banal plane of politics as usual. If confronted with the momentous opportunity to appoint a judge (or two) will he be able to resist the opportunity to yet again demonstrate his political autonomy?...I have lots of doubts...

McCain is typical of the General or military type who become President. They see themselves as above party in a temperamental way (as opposed to a philosophical way) and take pride in their independence rather than in a common program. I also do not like McCain's continual trumpeting of his war wounds and harsh imprisonment. It reminds me of Coriolanus (who I like better actually). I am struck by what Peter says about the beltway constitutional types. But why is Mitt MORE trustworthy? By the way, I thought McCain did best last night, though Romney had more airtime toward the end.

Yes, perverse independence, but in what direction is that likely to go? If, McCain is above party, then we have no reliable sense of where he will take us.

I caught Michael Medved yesterday who was praising McCain by saying that the McCain-Feingold bill has had no effect on politics and so is no big deal. I'm supposed to be happy about that?

It reminds me of Coriolanus (who I like better actually).

If the GOP rejects McCain again, I expect him to do as Coriolanus did and join the other side.

He came within a whisker of doing so in 2001.

“the few who say they’d prefer even Giuliani are clearly suffering from deranged hostility to McCain syndrome”

Will all due respect, there are a lot of reasons why conservative lawyers might support Giuliani. He was a federal prosecutor and a high ranking member of the DOJ. He has a deep understanding of legal concepts that is, dare I say, severely lacking in some of his primary opponents. With Thompson gone, he is the only candidate saying all the right things about federalism, the proper role of judges, and the importance of limited judicial power.


Let me be clear: I don’t think Giuliani means everything he says. I am not sure he would appoint the kinds of judges that I would like. However, a lot of prominent conservatives DO believe him. He has Ted Olson’s seal of approval. That means something, at least to those of us who take these issues seriously.

Did anyone else catch the interview of McCain's mother where she lambastes the GOP for not helping her son . . . what to make of that? On the one hand she's a very elderly woman and the questioning of her along those lines probably was not fair. But she was chomping at the bit and did not back down . . . she seemed delighted to have a public opportunity to condemn the GOP for not recognizing all of her son's many virtues. It was something beyond maternal pride. You can certainly see where her son gets his feisty disposition and there is, to be sure, something good to be said about such a toughness. But still . . . there was something so unhinged and resentful and angry about it that just didn't sit right. This is exactly the sort of thing that makes conservatives nervous about McCain and, I think, with justice. I agree that the violent reaction to him may be overdone (but I'd argue that more from the point of view of prudence than from the point of view of substance). I certainly understand the dislike for him--but I could get over it (temporarily) given the right circumstances. And I think Peter is exactly right when he says, "Most people actually don’t think Romney can win, and it’s possible John could." That explains most of the conservative pullback from the attack on McCain--and it should.

And yet I agree with those lawyer types Peter met in Washington who think Giuliani would do better by the court than McCain would do. I don't think I suffer from any derangement when it comes to McCain. He's my least favorite candidate on the GOP side (other than Paul) but I'd still vote for him enthusiastically in November if he were the nominee. I don't think his nomination will destroy the GOP. If the GOP is headed for destruction, McCain would be more a symptom of it than the cause of it (and even then, I wouldn't so much call it "destruction" as "shake up"). To suggest otherwise would be to give him far too much credit.

anon

Will all due respect, there are a lot of reasons why conservative lawyers might support Giuliani. He was a federal prosecutor and a high ranking member of the DOJ. He has a deep understanding of legal concepts

I'd appreciate it if you could provide me with a list of thinsg Giuliani has said which demonstrates this "deep understanding of legal concepts" you refer to. Because from everything I have seen, the man does not have a clue. For instance, he likes to insist that illegal immigration is not a crime. That is not the sign of deep legal thinker.


Here is another example of his "deep understanding". It is about his challenge to the line item veto. (In itself an attack on fiscal conservatism.)

Giuliani has said he challenged the law as a matter of legal principle. "The line-item veto is unconstitutional," he said in the Tuesday debate held in Dearborn, Mich. "I took Bill Clinton to the Supreme Court and beat Bill Clinton. It's unconstitutional. What the heck can you do about that if you're a strict constructionist?"

Yes, Giuliani says that he will appoint "strict constructionists" to the courts. The problem is that he clearly does not have the faintest idea what the term "strict constructionist" means.

Most people actually don’t think Romney can win, and it’s possible John could.


But why do people think this way? That is the question. It seems so irrational.

And what does it say about us if we are willing to go with a man who has made clear his contempt for all sorts of consrvatives? That we are driven by a craven lust for power at any price?

Well, John, for starters, unlike some of his opponents he actually understands the import of the phrase "living Constitution." The response on this website - universal defense of Huck and criticism of Thompson - stands in pretty stark contrast to the response on websites actually run by conservative lawyers. Check out the Volokh Conspiracy posts and comments and Huckabee, and then compare them with the Huck lovefest over here. As for Giuliani, he routinely speaks on judicial nominations before and after debates, and it is clear that he knows what he is talking about. He gave a great speech in November to hundreds of members of the Federalist Society. Maybe you don't believe him (I made it clear that I do not). He is saying all the right things though.

If you want a list and you have access to Google, I presume you can find them yourself in about 2 minutes. Your choice of the line-item veto is a strange one though. Giuliani was right about that. The line-item veto was unconstitutional. This doesn't even pass the laugh test. The Constitution, strictly construed (which is what you claim to want in a judge), requires laws to pass both houses of Congress in identical form then be signed or rejected by the President. It does not allow one branch to unilaterally pass or reject different portions of legislation. Your example suggests that you don't really want a "strict constructionist." You want a judge who will agree with you. That's no different than what the liberals want.

anon

The question of whether the line item veto is constitutional or not is not at issue. The point is that Giuliani described "strict constructionist" as being the same thing as "the court said so". And he has done this an a few occasions. He gives the impression that "strict constructionist" means pretty much " a judge who agrees with me". I assume I don't need to point out to you the numerous times he lost in court.


I'm not defending Huck, so that tack of yours is off point.

He gave a great speech in November to hundreds of members of the Federalist Society.

I'm glad to hear it. Do you have a transcript?

Maybe you don't believe him (I made it clear that I do not). He is saying all the right things though.

I don't believe him. And I don't think he is saying all the right things. For instance, he still says that a "strict constructionist" justice could either uphold or strike down Roe v Wade. Again, I get the impression the term, to him, means whatever he wants it to mean.

I think the Romney team of legal advisors is the most impressive of any candidate. Plus, he has been endorsed by Robert Bork.

John, you raise several good points. Romney's list of legal advisors is the most impressive (or at least I think so). You are obviously right about Roe v. Wade. But keep in mind I was not saying Giuliani was the best choice. I was responding to Peter, who basically claimed that no conservative lawyers support Giuliani unless they are swept up in anti-McCain hysteria. That's just not true.

I thank John for reminding me of this impressive list, which includes the authors of the Con Law textbook I use and the best around, Doug Kmiec and Stephen Presser.

I will add that at this point I do think Romney is unelectable.

Ironically, I suppose, crossing the border is illegal, but being here illegaly is not (unless you commit some other crime then you have a high chance of getting deported).

Now, regarding the GOP candidates, I am still underwhelmed, but a Democrat President, especially among this group, scares me.

I will gladly agree w anon that my post was an overstatement, for several reasons. Someone might be for Rudy vs. Mc simply because Rudy is a lawyer.
And many cons legal experts are less interested in Roe etc. than other issues--federalism etc. And in fact may cons legal experts are actually closer to libertarian Randy Barnett--wanting an activist Court that's both pro-Lochner and pro-Roe. Plus, I will glad add in favor of anon--the truth is that Romney, Huck, and Rudy all seem to have reflected more on the actual const. than McCain. I'm actually on the extreme side of judicial restraint--thinking it best that the court do less across the board, I'm like Scalia only maybe more so. In short: I think that when it comes to what the Court should do, Randy Barnett is almost always wrong.
Having just had this dialogue with myself, I'm close to concluding that McCain is the least constitutional candidate, and affirming that in a less than deranged way might be perfectly reasonable. (One final point--lists of advisors are pretty much pr moves, Rudy has shown no awareness of the real issue when it comes to Roe, McCain had, at least, someone write him a letter that was on the money.)

What Julie said, if you scratch out the word "enthusiastically."

Pro-lifers, don't forget that McCain was for the funding of embryo-destroying stem cell research. Maybe a non-issue in the future, but relevant in that it was the prospect of such research that hardened Romney's pro-life instincts. Although none of us can peek into these candidates' souls and know for sure, it's far more likely that McCain is the mere mouther of pro-life positions than is Romney. Wherever McCain is, I believe Romney is being sincere on this.

And, see above, the journalists must ask the Voegeli question!

Robert may be right in saying that Romney isn't electable, though I'm not nearly as confident of that. But to my mind, in this primary that doesn't give much direction in thinking about which candidate we should support in the primary. It is possible that McCain might have a slightly better chance in the general, but given his past history, I suspect he could be a truly bad President for conservatives, so much so that his election could actually be worse for us in the long run than if Romney runs and loses in the general election.

Despite that, I think Romney has a decent shot in November. The problems in the Republican Party are substantial, but not overwhelming. The Democratic Party may be in the midst of more fundamental problems. They have relied on a nasty brand of identity politics for 30 years or more and it's not biting them badly. This catfight between Obama and Hillary isn't going away anytime soon.

As to Prof. Lawler's original point on judges, I don't think there's any real question here - Romney's advisors and own beliefs on judges are much, much better than McCain's. And unlike McCain, he won't be obsessed with what the NYT's will think about his appointments.

So after Carl and Caleb, who both make good sense: Even though from a Roe-centric point of view I must rank McCain over Giuliani, Romney would easily be better than both for we constitutionalists.

I don't know what people are basing the "electability" argument on. If it's the polls, keep in mind that they have a near perfect track record of being wrong. Carter should have beaten Reagan if the polls were infallible. Gore should have beaten Bush. Dukakis should have beaten the other Bush.

You are probably better off picking the candidate the polls show as losing rather than winning, if electability is your prime concern.

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