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I attended the Giuliani campaign press conference announcing his judicial team. Ted Olson presided with Miguel Estrada and Steven Calabresi chiming in, among other members. One notable point came when a reporter asked whether they were going to try to talk Giuliani into taking a harder line in opposition to Roe v. Wade. In response, Olson, Estrada and Calabresi emphasized that they didn't think it would be appropriate for a president to have a litmus test on a single case. What is important is appointing judges who have the correct judicial philosophy, and who believe in interpreting the law rather than rewriting it. Estrada said, "I cannot imagine that there is anyone running for president on the Republican ticket, including the most vociferous enemy of Roe v. Wade, who could on a principled basis say that they would pick somebody for the Supreme Court on the basis of that or any other issue." Calabresi concurred, pointing out that 6 of the 9 Supreme Court justices will be over 70 when the next president takes over. "I believe that [Giuliani] will in fact appoint judges who will interpret the law and not make it, and I don't expect him to, and don't think it would be appropriate to impose a litmus test."

I'd also add that even though conservatives would prefer for Giuliani to come out and emphatically say that Roe was wrongly decided and should be overturned, and even though they squirm when he suggests that a strict constructionist could theoretically vote to uphold it by determining it has become precedent, if he changed his rhetoric to please conservatives, it would make the judicial confirmation process a lot more difficult were he elected president, especially with Democrats in control of the Senate.

It's understandable that conservatives would want Giuliani to emphatically come out against Roe -- and perhaps be even more demanding than with other candidates -- given his support for abortion rights. Nothing that Giuliani says now could make up for the fact he is pro-choice. However, lining up an impressive list of conservative judicial advisors can help him make conservatives who may otherwise be inclined to support him, comfortable enough that he would appoint good judges, to look beyond his views on abortion. When it was just Olson out there defending him, people could chalk it up to the fact that they are old friends. But rolling out this team shows that the Olson endorsement was not an outlier.

topics:
Abortion, Law, Supreme Court