As Republican candidates Mike Huckabee, John McCain, and Mitt Romney gather the lion's share of votes in the early primaries, former New York Mayor Rudy Giuliani has made a poor showing, coming in sixth in Iowa and fourth in New Hampshire. His polling leads have vanished.
The pro-choice Giuliani wagered that he could persuade the pro-life Republican base if he depicted himself as a strong judicial conservative. But mere judicial conservatism does not necessarily advance the pro-life cause, and social liberals like Giuliani cannot win the Republican nomination without taking more specific steps to the right on abortion.
Giuliani's central pledge on the social front is to appoint Supreme Court justices who are “strict constructionists.” Leading legal conservatives prefer the term “originalist” since they seek to discover the Constitution's original meaning, not its strict meaning. Touting “strict constructionists” might be a sloganeering necessity, but it also betrays a sloppy understanding of judicial restraint.
Pundits interpret “strict constructionist” as code for opposing Roe v. Wade, because in Roe the court “legislated from the bench” by inventing a right to abortion. Nevertheless, judicially conservative lawyers need not favor overturning Roe. This is true because of another phrase, “stare decisis” — or as Senator Arlen Specter likes to call it, “super-duper precedent.”
Stare decisis defers to past cases for many reasons, including consideration of the practical, societal effects of overturning a decision. A judicial conservative can disagree with Roe's judicial activism but still refuse to overturn it, believing that doing so may cause greater harm.
Roe itself was sustained in Casey because the justices considered it bad to upset abortion's entrenched societal status. And the Supreme Court left intact Miranda's “you have the right to remain silent” warning because police have adapted to the rule.
Therefore, what one thinks about abortion in itself, viewing it either as a grisly procedure, or a necessary evil, or a liberating choice, is a crucial factor in deciding whether to overturn Roe, even if a justice thinks that Roe's reasoning is nonsense.
One can be a judicial conservative without being a social conservative. Both views will at least indirectly affect the outcome of abortion decisions. This is widely recognized, but its significance to presidential politics is often overlooked.
GIULIANI IS, BY ALL accounts, no social conservative. He calls abortion a “constitutional right,” which raises the question of what he means by someone who would “strictly construe” the constitution.
Because of this “big tent” judicial conservatism, Giuliani could, without breaking any campaign promises, appoint numerous justices who vote to uphold Roe.
Giuliani has left himself other loopholes. Nowadays he elaborates that his strict constructionists would be “similar to” Justices Scalia, Thomas, Alito, and Chief Justice Roberts. Scalia and Thomas, however, seem to be late additions to the list.
In early campaign statements, Giuliani mostly mentioned Alito and Roberts, who have not expressed any public view about Roe. In February, when Sean Hannity pressured Giuliani to add Scalia to his list of exemplary judges, Giuliani complied but qualified his view by predicting that Scalia and the court would “limit [Roe] rather than overturn it.”
Giuliani also advertises the conservatism of his
Professor Charles Fried has opposed overturning Roe. Pro-life groups have been hostile to the new Attorney General Michael Mukasey, a prominent committee member, while liberal court activists have warmed up to him. Supreme Court papabile Miguel Estrada and Maureen Mahoney are judicial but not social conservatives, according to renowned Supreme Court insider Jan Crawford Greenberg, who says that President Bush's advisors didn't consider Mahoney for the high court because “they didn't believe she was conservative enough.” Committee chairman Ted Olson seems to spend a lot of his time insisting that Giuliani's judicial conservatism “doesn't mean overturning Roe is part of that agenda.” Professor Steven Calabresi is reportedly participating in the committee despite, not because of, his own opposition to abortion.
Distinguishing social from judicial conservatism could pave the way for more substantive campaign promises about judges. Pro-lifers who ask a candidate what his nominees would think about Roe are typically silenced with responses like, “I have no abortion litmus test,” and, “judges cannot promise how they will vote.” But pro-lifers can avoid these trump cards by insisting that they are not asking how nominees would vote on Roe, but whether or not nominees would think abortion kills an innocent human being and poisons society.
Just like the promise of strict constructionism, how a nominee views legal abortion is a factor in the stare decisis analysis, but is not a definitive promise how to vote. If a presidential candidate is willing to forswear “legislation from the bench,” he has no principled reason not to say whether judges will hold basic social conservative views on abortion, rather than merely judicial conservative views. Where a politician himself sympathizes with abortion, an added promise like this is all the more necessary to protect the pro-life movement's interests and sway pro-life voters.
Matt Bowman is an attorney based in Washington, D.C., where he litigates pro-life and First Amendment cases.