Giuliani’s all-star judicial team is quite a coup and will indeed help him reassure many conservatives. But I think the team also illustrates the limits of the judicial strategy in reaching out to social conservatives.
While it would be nice if the electorate was dominated by principled originalists, we’re kidding ourselves if we don’t acknowledge that many voters hear “conservative judges” as code words for their policy preferences on abortion, affirmative action, religion in the public square, and crime. To the extent that Giuliani’s legal team has to explicitly disavow any necessary inclination to reach those desired policy outcomes, the benefit of the judges issue might be mitigated.
There are, as Phil notes, strong political and strategic reasons to not be too emphatic about one’s opposition to Roe during the presidential campaign. But past Republican presidential candidates have been able to get away with avoiding litmus tests because they were seen as broadly sympathetic to pro-lifers and thus inclined to appoint anti-Roe judges on that basis. It will be harder for Giuliani to appeal to these voters by promising to appoint conservative judges who may or may not uphold Roe, especially when judges nominated by presidents to his right on abortion have disappointed.
Take Charles Fried, for example. As solicitor general under President Reagan, Fried defended his boss’s position that Roe should be overturned. President George H.W. Bush called Fried back to argue for the reversal of Roe in 1989’s Webster v. Reproductive Health Services. But Fried is personally pro-choice and emphasized his support for legal abortion to skeptical Democrats when he was nominated to the Massachusetts Supreme Judicial Court.
People who like conservative judges because they prefer a stricter construction of the Constitution would have good reason to be pleased if President Giuliani nominated Fried to the U.S. Supreme Court. People who like conservative judges because they are pro-life would have good reason to ask serious questions about where Fried would actually come down on the cases that matter most to them.
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