There has been a lot of discussion about the Courts and judges today in the blogoshpere (Hugh, NRO Editors, Andy McCarthy, Marc Ambinder, Ramesh Ponnuru, Andy McCarthy again, Mark Levin, and Brad Smith). This is definitely one of the subjects where there is a difference between Romney, McCain, and Giuliani. Being a law student (my last semester, thankfully), this is a subject that I am passionate about. I have written before about what kind of judges each of these candidates would nominate. I find the most telling indicators are the issues that these candidates have gone to the courts to advocate.

Rudy went to the Supreme Court to fight against the line item veto. Some may yawn at the line item veto issue, but coupled with statements that Giuliani has made about his view of “strict constructionist” judges, a very troubling trend emerges. I wrote back in October:

Second, and I think even more illuminating, is who Rudy thinks is a “strict constructionist”. Apparently Rudy’s idea of a “strict constructionist” is someone who could come out either way on abortion, finds that the constitution mandates taxpayer funding of abortions, and agrees that the line-item veto is unconstitutional. This “strict constructionist” judge of Rudy’s looks more and more to me like John Paul Stevens, who was nominated by a Republican President, Gerald Ford. Of course Justice Stevens would be nobody’s idea of a “strict constructionist”, routinely finding in favor of race-based school classifications, abortion rights, and other “rights” found nowhere in the Constitution’s text. Certainly Rudy’s idea of a “strict constructionist” is not what Republican voters are looking for.

McCain fought against Wisconsin Right to Life to preserve the limitations on speech imposed by campaign finance reform. Campaign finance reform turns the First Amendment on its head, prioritizing the regulation of money over the freedom of speech and the political advocacy it was designed to protect. I wrote back in June:

McCain should be embarrassed for supporting such a blatant infringement of the First Amendment. While his concern with political corruption is laudable, silencing political speech is directly prohibited by the First Amendment, and certainly is not the method to avoid corruption. That McCain would choose to sacrifice free speech for the sake of political candidates is indefensible.

Romney went to the court to defend traditional marriage. After the ruling by the Massachusetts Supreme Court declaring gay marriage a right, Romney went to the court to force the legislature to allow the citizens of Massachusetts to vote on the issue. The Washington Post describes Romney’s efforts:

Romney said he will ask a justice of the state's Supreme Judicial Court to direct the secretary of state to place the question on the ballot if lawmakers do not vote directly on the question Jan. 2, the final day of the current session.

Romney has criticized lawmakers since they refused earlier this month to take up the question during a joint session, voting instead to recess, all but killing the measure.

"A decision not to vote is a decision to usurp the Constitution, to abandon democracy and substitute a form of what this nation's founders called tyranny, that is, the imposition of the will of those in power, on the people," Romney said earlier. "The issue now before us is not whether same-sex couples should marry. The issue before us today is whether 109 legislators will follow the Constitution."

Labels: John McCain, judges, rudy giuliani

I just wanted to follow up on the Bork endorsement. Being a law student, such an endorsement is especially meaningful to me.

I assume that most are aware of his nomination to the Supreme Court in 1987 by Ronald Reagan. After elevating William Rehnquist from Associate Justice to Chief Justice, upon the retirement of Warren Burger, and filling the new vacancy with Antonin Scalia in 1986, Ronald Reagan was given another chance to fill the court with conservative jurists. With the vacancy from Lewis Powell's retirement in 1987, Reagan nominated Robert Bork. Of course that nomination was famously rejected by the Senate, leading to the later elevation of Anthony Kennedy to the Supreme Court (who subsequently upheld Roe v. Wade in Planned Parenthood v. Casey, and wrote the opinion in such decidedly illogical cases such as Lawrence v. Texas and Romer v. Evans).

Bork is famously remembered for his failed nomination, but Bork was and has been much more influential in conservative thought. Indeed, Yale professor of law and political science Bruce A. Ackerman wrote in 1988 in the Harvard Law Review:

I begin where Chief Justice Burger ended [in his testimony to the Senate Judiciary Committee]: when judged by normal personal and professional criteria, Robert Bork is among the best qualified candidates for the Supreme Court of this or any other era. Few nominees in our history compare with him in the range of their professional accomplishments -- as public servant, private practitioner, appellate judge, legal scholar. Few compare in the seriousness of their lifelong engagement with the fundamental questions of constitutional law. Of course, Bork's answers to these questions are controversial. But who can be surprised by that? Even those, like myself, who disagree with Bork both can and should admire the way he has woven theory and practice, reason and passion, into a pattern that expresses so eloquently our deepest hopes for a life in the law. The Republic needs more people like Robert Bork. 101 Harv. L. Rev. 1164

The endorsement of such an accomplished and influential person in conservative thought and conservative circles is deeply telling about the candidacy of Mitt Romney. Not only does it indicate the type of principled jurists that Romney could be expected to nominate for the Supreme Court and the lower federal courts, but it also is telling about the intellectual underpinnings of Romney's view of conservatism.

Labels: endoresements, judges, Robert Bork

Kristi L. Remington, who served as deputy assistant attorney general at the Department of Justice, and Jamie E. Brown, who served as special assistant to the president for legislative affairs, have penned an article over at NRO about why Romney would be great at appointing judges. Both were core members of the team that achieved the confirmations of Chief Justice Roberts and Justice Alito to the Supreme Court. Thus, they understand what a judge should be. They write:

For that reason, it is critically important to consider what type of individual a presidential candidate would nominate to the bench. We are confident that if elected as president, Governor Romney would appoint individuals to the federal courts who respect the appropriate role of the judiciary in our democratic system.

It is interesting that these experts did not choose another man who was involved in the nomination of Chief Justice Roberts: Fred Thompson. I think this article, by implication, underscores the role that Fred had in the Roberts nomination: social as opposed to substantive. Perhaps that's some people's idea of preparation for the presidency, social host, but some of us see the Presidency as a more serious endevour.

Labels: judges

Today’s Supreme Court decision today, Gonzales v. Carhart, emphasizes two things of political importance. First, and this was echoed in John McCain’s statement about the decision, is the importance of having the right judges on the Court. There is little doubt that the federal law in question would have been decided differently had Justice O’Connor still been on the Court. The additions of Justices Roberts and Alito were pivotal in, as Mitt stated today, “upholding a ban on a practice that offends basic human decency.” For GOP contenders, the easy conclusion is the need to appoint “strict constructionist” judges.

Is that the only conclusion? No. This case stemmed from Congress’ and the President’s pro-active decision to test previous abortion decisions through passing legislation, specifically the Partial-Birth Abortion Ban Act of 2003. Conservative legislators partnered with a conservative Executive to challenge the prevailing legal atmosphere through reasonable restrictions on abortion. Thus, the change brought about today was not purely a judicial phenomenon. The President had an important role in signing legislation that furthered his view on abortion. Had the President not been willing to sign such a bill, the current case would not have been brought, and thus the successful change in abortion law would not have occurred. Therefore, appointing “strict constructionist” judges is hardly sufficient for a Presidential candidate. A President who simply deferred to the judiciary would abdicate a pivotal role in bringing about appropriate changes in the law.

This is one reason why Romney’s statement below is so important.

Update: Here's a good follow-up in the American Spectator.

Labels: abortion, judges, pro-life

Social Conservatism: People, not robes

Labels: cpac, gay marriage\, judges, social conservatism, video

Rudy Giuliani has promised to appoint judges in the mold of Roberts and Alito. This is to assuage conservative fears over his pro-abortion and pro civil union views.



The Politico took a look at his 75 appointments to the judiciary in New York City.



Their findings are interesting.
Bullets from the article:

• Democrats outnumbered Republicans by more than 8 to 1
• One of his appointments was an officer of the International Association of Lesbian and Gay Judges.
• Another ruled that the state law banning liquor sales on Sundays was unconstitutional because it was insufficiently secular.
• A third, an abortion-rights supporter, later made it to the federal bench in part because New York Sen. Charles E. Schumer, a liberal Democrat, said he liked her ideology.

Further, Giuliani won praise from NYC NARAL head, Kelli Collin:

"They were decent, moderate people," she said.

In the mayors defense, he had to choose from only 3 candidates. From the article:

Under the system, the mayor appoints members of an independent panel. Aspiring
judges apply to the panel, which recommends three candidates for each vacancy.
The mayor chooses among the three.

Yet, surely, the mayor could have avoided those applicants whose records and pedigrees were that of extreme judicial activists.

Giuliani's pledge to appoint judges like Roberts and Alito comes under question when you consider his record of appointing extreme judicial activists onto the New York courts.

Consider that one judge:

Charles Posner, a Brooklyn judge appointed by Giuliani, made the kind of
decision that keeps conservatives up nights when he was asked to levy a fine
against a shopkeeper, Abdulsam Yafee, who had illegally sold beer at 3:30 a.m.
on a Sunday. In an unusual, lengthy 2004 ruling, Posner found that "there is no
secular reason why beer cannot be sold on Sunday morning as opposed to any other
morning."
Noting that Sunday is only the Christian Sabbath, Posner continued,
"Other than this entanglement with religion, there is no rational basis for
mandating Sunday as a day of rest as opposed to any other day."

Yet another:

Sonberg's other affiliation: When he was appointed in 1995, he was already an
officer of the International Association of Lesbian and Gay Judges, a
professional group. After his appointment, he became the group's president.

Two were appointed to federal seats:

one of them, Richard Berman, by President Bill Clinton. The other, Dora
Irizarry, was a Bush nominee considered so liberal that (Chuck) Schumer pushed
her nomination through....
"Temperament is not at the top of my list," Schumer explained at the time, when asked why he supported the former Giuliani appointee. "Ideology is key."

Giuliani spent a great deal of time with his nominees:

"He took it very seriously -- he spent a lot of time with these candidates,"
recalled Paul Curran, a Republican and former U.S. attorney who chaired
Giuliani's Commission on Judicial Nominations.

Yet he allowed these wreckless nominees through? This is troubling and hopefully answers can be provided when he speaks tomorrow at the CPAC conference.

Labels: Giuliani, judges