It would be hard to imagine Hillary Clinton or Barack Obama
gaining points with the base of their party by unveiling a list of
liberal judges dedicated to the proposition that the Constitution
and liberal social policy coincide perfectly. Both presidential
candidates believe this, of course, but the effort would seem
gratuitous. They both would nominate and deliver another Ruth Bader
Ginsburg, their Democratic primary voters would say.
For the Democratic Party it is simply a given that the judiciary
is an extension of the left’s policy agenda — abortion,
affirmative action, and gun control to name a few. There simply is
no separation between what Hillary Clinton thinks is good policy
and what her prospective judges would consider constitutionally
required.
The Democrats aim in recent elections and in Supreme Court
confirmation fights has therefore been to scare voters into
thinking that those cold-hearted Republicans are intent on “rolling
back” the hard earned judicial fiats obtained through years of
misguided liberal jurisprudence. Their mode is defensive: we’ve got
the courts and we’re keeping them.
For Republicans, of course, it is a whole different ballgame,
which explains why Rudy Giuliani rolled out an impressive list of
prospective judges — the equivalent of the 1927 Yankees. A
judiciary stocked full of Miguel Estradas is tempting indeed for
both social and legal conservatives hoping to build upon the
Roberts and Alito additions to the Supreme Court.
For Giuliani specifically it is a savvy political move to assure
voters that his pledge to nominate strict constructionist judges is
not mere talk. With Fred Thompson in the wings and Mitt Romney
promising to clean up the cultural sewage of America, it is smart
politics to display what the legal landscape would look and sound
like in a Giuliani administration.
This tactic may work precisely because judges matter so dearly
to Republicans. This issue resonates on both a philosophical and
political level.
Most importantly, of course, the pledge to nominate such judges
shows commitment to conservatives’ belief that law making and
judging are two different things, properly relegated to separate
branches. Democratically elected legislatures, not judges, in the
eyes of conservatives are where policy is made and where
conservatives will stand the best chance of persuading the country
to follow conservative principles.
But it is more than just jurisprudence which is at stake. The
commitment to nominate conservative judges demonstrates that the
person who will make the nominations is ready to battle the liberal
media, Congress and public opinion when the fur starts flying as it
inevitably will when the nominees are sent to the Senate and the
special interest group PR machines gear up. The person committed to
such a course is saying he will take the abuse of the New York
Times and the civil rights lobby when they declare his
nominees racist or — that old favorite— “not on the side of the
common man.”
Had conservatives not been disappointed before with nominees who
never lived up to their conservative billing things might be
different. But conservatives — like Charlie Brown going after that
football — have been deceived before. O’Connor, Kennedy, and
Souter are not what conservatives have in mind. They want assurance
that their presidential nominee will be able to discern
intellectually principled judges from those who will go “soft”
after years on the Washington cocktail circuit.
It is uncertain whether Giuliani will dispel conservative
voters’ doubts on key social issues, but he certainly understands
what is at stake with regard to the courts. And the prospect of
Justice Miguel Estrada, and a president willing to fight for him
and like minded judges, is intriguing.
