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.