Posted on May 13, 2007

by

Daniel Clark

And people say that George W. Bush can't communicate. Next to Rudolph Giuliani's attempts to placate social conservatives, the president sounds as if he's speaking with a mouthful of Blarney Stones.

Supported by nervous conservatives who tout his perceived "winnability," the former New York mayor has tried to stave off criticism of his liberal positions on abortion and gun control by promising to appoint "strict constructionists" like John Roberts and Samuel Alito to the Supreme Court. This means that, insofar as his policies conflict with the plain language of the Constitution, he is going to use the federal courts to impede elements of his own agenda. That inherent contradiction ought to alarm all conservatives who are not too intoxicated by the "Rudy vs. Hillary" polling results to put things in perspective.

Why, for instance, would a man who has supported the Brady bill and the so-called "assault weapons ban," and who has said that gun ownership is an issue to be decided by state and local governments, wish to appoint a Supreme Court justice who would uphold the right of the people to keep and bear arms? As mayor, he even filed a nuisance lawsuit against gun manufacturers. He can't possibly mean that he's going to appoint judges who are predisposed to dismiss his case.

In an interview with CNN early last month, Giuliani declared, "There must be public funding for abortions for poor women." He arrived at this conclusion by spilling the following sentence out of a blender: "Ultimately, it's a constitutional right, and therefore if it's a constitutional right, ultimately, even if you do it on a state-by-state basis, you have to make sure people are protected." If he applied this same rationale to an actual constitutional right, like the right to own firearms, he'd have to conclude that the taxpayers must provide every poor person with a free gun.

There is no constitutional right to abortion, but Rudy elevates it beyond the status of a right, to that of an entitlement. Meanwhile, he takes a right that is clearly spelled out in the Second Amendment, and decides that states and localities have the power to revoke it. A strict constructionist would be diametrically opposed to him on both counts, so why should we believe he'd appoint one?

During the Republican presidential debate at the Reagan Library, Giuliani contradicted his previous statement, by telling moderator Chris Matthews that he opposed public funding for abortions. He then also contradicted that statement, explaining that the states should decide for themselves whether or not to fund abortions, and that he favored doing so in New York. However, he had indicated to CNN that each state should be compelled to fund them, in order to protect an alleged constitutional right. So the states have the right to decide, but only if their answer is yes. That sounds a little like "voluntary compliance" with the IRS.

In that same debate, Matthews asked whether the day that Roe v. Wade was repealed would be "a good day for America." Giuliani responded with a strangely tepid, "It would be okay." When prodded to elaborate, he explained, "It would be okay to repeal. It would be also if a strict constructionist viewed it as precedent and I think a judge has to make that decision."

A "strict constructionist" is one who strictly construes the Constitution, not one who discards it in favor of an unconstitutional precedent. Yet Giuliani draws an equivalence between those two outcomes, allowing judges to decide for themselves whether or not the Constitution matters.

Once, while he was in drag, Rudy jokingly described himself as "a Republican pretending to be a Democrat pretending to be a Republican." We are now supposed to trust that he's a strict constructionist pretending to be a judicial activist pretending to be a strict constructionist. To his supporters, any mention of his self-publicized cross-dressing is regarded as some sort of political dirty trick. Likewise, when it comes to his judicial philosophy, we are expected to be too polite to notice that his liberal slip is showing.

Giuliani may very well be serious when he says he will appoint justices like Roberts and Alito, but how would he recognize one if he saw one? His pronouncements on critical constitutional issues have been so confused that it's not clear whether he'd see any significant difference between Chief Justice Roberts and ultra-liberal Justice Ruth Bader Ginsberg. After all, the two of them do dress alike -- in court, anyway.

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