Wednesday, November 7, 2007

Pat Robertson, Rudy and Strict Constructionist Judges

This post is going way outside my areas of knowledge. I am not an lawyer, nor do I play one on TV, and no I did not stay at Holiday Inn last night. Most of you will already know and understand what I am about to say, good for you. For those who don't, find an honest lawyer, hi Brian, and get him to explain the problems. I first heard about this subject during an interview of Robert Bork on the Mickelson show, (did you hear me today? I talked about this subject with Jan.)

I believe that the Left side of the Republican party is attempting to run a scam on the right wing of the party. I've heard Rudy Giuliani, and Mitt Romney both claim that if they are elected president, that they will appoint strict constructionist judges to the Supreme Court. I have had discussions on the web with many well meaning folks who think we should vote for Rudy because he can beat Hillary, and he will appoint "str. con." judges.
First, I don't believe that Rudy can beat Hillary, because people like me will never vote for a pro-baby killer, no matter what party he or she is in. Besides why vote for the lesser of two evils when you can get the exact same policies from evil personified? Vote for the more evil of the two evils if thats your choice, you don't settle for second worst on most other things in life, go for the worst you can get.
Secondly, you have to actually trust the candidates making these promises, a rather questionable assumption in my opinion. If the one can't keep his marriage vows, twice, why should I believe a promise to appoint str. con. judges?? The other was pro-baby killing up until 15 months ago, why should I believe a man who suddenly changed his mind on the issue of life, just weeks before he declared himself a candidate for President? The Bible talks about not appointing a novice as a leader, heres a guy who didn't know what he believed was wrong less than two years ago??
Thirdly, and this is the main point here, I believe the Strict Constructionist thing is a scam, a ruse to fool the rubes, a gambit intended to convince the uninformed that the justices that these guy will appoint will overturn Roe vs, Wade, when in fact they have just the opposite in mind.

I'm sailing off the edge now, so hang on. From the Manchester Union-Leader.

"Rudy Giuliani today said social conservatives could achieve most of their objectives under his presidential administration, despite his pro-choice stance.

The former New York City mayor said he would appoint strict constructionist judges to the Supreme Court in the mold of Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas — all conservatives nominated by Republican Presidents.

There are as many as 200 federal judicial appointments which are at stake in the 2008 election, Giuliani added. “If you get Hillary, there are 200 liberal judges,” he said. “If you get me, there are 200 conservative judges.”

The following is taken form Wikipedia, I realize that it is not an authoritative source but for the purposes of this post it will do.

Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. In the United States the phrase is also commonly used more loosely as a generic term for conservativism among the judiciary.

Strict sense of the term

In its strict sense, strict construction requires a judge to apply the text as it is written and no further, once the meaning of the text has been ascertained (perhaps using tools such as originalism or purposivism). That is, judges should avoid drawing inference from a statute or constitution.[1] Thus, for example, Justice Hugo Black argued that the First Amendment's injunction that "Congress shall make no law," should be construed strictly: the term "no law," Black thought, admitted virtually no exceptions. However, "strict construction" is not a synonym for textualism or originalism, and many adherents of the latter two philosophies are thus misidentified as "strict constructionists."

The term is often contrasted with the pejorative phrase "judicial activism", used to describe judges who seek to enact legislation through court rulings, although the two terms are not actually opposites.

Common use

"Strict constructionism" is also used in American political discourse as an umbrella term for conservative legal philosophies such as originalism and textualism, which emphasize judicial restraint and fidelity to the original meaning (or originally intended meaning) of constitutions and laws. It is frequently used even more loosely to describe any conservative judge or legal analyst.[2] This usage is pervasive, but in some tension with the legal meaning of the term. On the campaign trail in 2000, for example, President George W. Bush promised to appoint "strict constructionists in the mold of Justices Rehnquist, Scalia, and Thomas," though Thomas considers himself an originalist, and Scalia leans more toward textualism on statutory questions rather than true strict constructionism.

The meaning of "strict construction", then, may turn on who uses it in what context; an appellate judge asking counsel at oral argument whether the statute should be construed strictly is likely using the term in its legal sense; a candidate on the campaign trail who promises to appoint or oppose strict constructionists is likely using the term as a surrogate for a broader set of conservative legal views.


The term has been criticized, especally from the left, as being a misleading or meaningless term.[3][4] Few judges self-identify as strict constructionists, due to the narrow meaning of the term. Antonin Scalia, the justice most identified with the term, has said that he is "not a strict constructionist and no-one ought to be,"[5] and has called the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute." In contrast, he claims to look for the ordinary meaning of words, not their "strict" meaning.

To a conservative this may sound good, I think that this is why Pat Robertson endorsed Rudy today because he believes that Rudy will appoint conservative judges who will overturn Roe vs Wade. In fact he said something to that effect in his endorsement speech, from Newsday, Robertson said he was willing to overlook Giulani's pro-abortion rights stance because he takes him at his word that he will appoint "strict constructionist" judges to the Supreme Court and federal bench a widely accepted term for judges likely to overturn the landmark Roe v. Wade abortion rights ruling.

Here's the scam. Rather than try to put it in my words, which would be very unclear, I'm going to quote from a piece by Charles Krauthammer from May 11th, then I'll elaborate.

Legalizing abortion by judicial fiat (Roe v. Wade) instead of by democratic means has its price. One is that the issue remains socially unsettled. People take to the streets when they have been deprived of resort to legislative action.

The other effect is to render the very debate hopelessly muddled. Instead of discussing what a decent society owes women and what it owes soon-to-be-born infants, and trying to balance the two by politically hammering out regulations that a broad national consensus can support, we debate the constitutional niceties of a 35-year-old appallingly crafted Supreme Court decision.

Just how tangled the issue gets is illustrated by the current brouhaha over Rudy Giuliani's abortion response in the first Republican presidential debate. Spokesmen for the other candidates have gleefully seized upon what they deem to be Giuliani's gaffe -- not only defying Republican orthodoxy but appearing to want to have it every which way.

On repealing Roe v. Wade:

Giuliani: It would be OK to repeal. It would be also (OK) if a strict constructionist judge viewed it as precedent and I think a judge has to make that decision.

Moderator: Would it be OK if they didn't repeal it?

Giuliani: I think the court has to make that decision and then the country can deal with it. ... states can make their own decisions.

Giuliani's response has been almost universally characterized as a blundering two-way pander. I think not. I've actually heard Giuliani elaborate his position on abortion. His debate answer is an overly concise version of it, which makes it so open to ridicule.

Democrats are pro-choice and have an abortion litmus test for judges they would nominate to the Supreme Court. Giuliani is pro-choice but has no such litmus test. The key phrase in his answer is "strict constructionist judge.'' On judicial issues in general he believes in "strict constructionism,'' the common conservative view that we don't want judges citing penumbral emanations and other constitutional vapors to justify inventing new rights they fancy the country needs.

However, one strict constructionist might look at Roe v. Wade as the constitutional travesty it is and decide to repeal it. Another strict constructionist judge could, with equal conviction, decide that after 35 years the habits and mores shaped by Roe v. Wade are so engrained in society that it should not be overturned.

And there is precedent for strict constructionists accepting even bad constitutional rulings after the passage of time. The most famous recent example is Chief Justice William Rehnquist for years opposing the original 1966 Miranda ruling as "legislating from the bench," but upholding it in 2000 on the grounds that it had become so engrained in American life that its precedental authority trumped its bastard constitutional origins. (He used different words.)

In a country with a rational debate about abortion, Giuliani would simply have been asked how he would regulate (up to and including banning) abortion. That's not a relevant question here because neither presidents nor legislatures nor referendums decide this. Judges do. All presidents do is appoint judges.

Giuliani's answer on how to go about picking such judges is perfectly reasonable. It appears to be a dodge about the abortion issue itself simply because -- thanks to Roe -- every such debate becomes tangled with otherwise irrelevant issues of constitutional doctrine and
stare decisis.
sta·re de·ci·sis
–noun Law.
the doctrine that rules or principles of law on which a court rested a previous decision are authoritative in all future cases in which the facts are substantially the same.

stare decisis
the principle in common law of adhering to precedent when deciding a legal case Latin 'decided matters' law; v phr 'to be bound by precedents'

American Heritage
stare decisis
A Latin phrase that literally means “to stand on the decisions.” It expresses the common law doctrine that court decisions should be guided by precedent.

Merriam-Webster's Dictionary of Law
sta·re de·ci·sis
New Latin, to stand by things that have been settled
: the doctrine under which courts adhere to precedent on questions of law in order to insure certainty, consistency, and stability in the administration of justice with departure from precedent permitted for compelling reasons (as to prevent the perpetuation of injustice)

When Rudy talks about appointing strict constructionist judges, he is talking about judges who will honor stare decisis. He and many like him,(I think Romney as well) believe that Roe vs Wade is settled law, and that unless there is some compelling reason, the court will never overturn itself, even if there are 9 conservative judges on the bench. Rudy wants Pat Robertson and you to believe that when he says he will appoint strict Constructionist judges he's talking about judges who will overturn Roe vs Wade, when in reality he is talking about judges who because of stare decisis will leave Roe vs Wade just as it is.

So that's the scam. Kind of a heads I win, tails you lose sort of deal.

If you would like to read more on stare decisis, here is a good article.

another interesting article is here,

Well that's our law lesson for today.