Over the last couple of days I have heard talk radio hosts and their listeners discussing an interview by Sean Hannity with Rudy Giuliani and the question about abortion. (transcript) The section of note was the following:
HANNITY: Where does Rudy Giuliani stand on abortion? And do you think Roe v. Wade is a good law, a bad law?
GIULIANI: Where I stand on abortion is, I oppose it. I don't like it. I hate it. I think abortion is something that, as a personal matter, I would advise somebody against.
However, I believe in a woman's right to choose. I think you have to ultimately not put a woman in jail for that, and I think ultimately you have to leave that to a disagreement of conscience and you have to respect the choice that somebody makes.
So what I do say to conservatives, because then, you know, you want to look at, well, OK, what can we look to that is similar to the way we think? I think the appointment of judges that I would make would be very similar to, if not exactly the same as, the last two judges that were appointed.
Chief Justice Roberts is somebody I work with, somebody I admire, Justice Alito someone I knew when he was U.S. attorney, also admire. If I had been president over the last four years, I can't think of any, you know, that I'd do anything different with that.
And I guess the key to it is -- and I appointed over 100 judges when I was the mayor -- so it's something I take very, very seriously -- I would appoint judges that interpreted the Constitution rather than invented it, understood the difference between being a judge and being a legislator. And having argued a case before the Supreme Court, having argued in many, many courts is something I would take very, very seriously.
HANNITY: So you would look for a Scalia, a Roberts, an Alito?
GIULIANI: Scalia is another former colleague of mine and somebody I consider to be a really great judge. I mean, that would be -- you're never going to get somebody exactly the same. You're never -- and I don't think you have a litmus test. But I do think you have sort of a general philosophical approach that you want from a justice, and I think a strict constructionist would be probably the way I'd describe it.
HANNITY: Is "Roe" a bad law?
GIULIANI: I think that's up to the court to decide. I think that it's been precedent for a very, very long time. There are questions about the way it was decided and some of the bases for it. At this point, it's precedent. It's going to be very interesting to see what Chief Justice Roberts and what Justices Scalia and Alito do with it.
I think probably they're going to limit it rather than overturn it. In other words, they'll accept some of the limitations that different states have placed on it or the federal government has placed on it.
The big to-do is over his "I'm personally opposed but..." followed by a statement that he would appoint justices like Scalia, Alito and Roberts.
Dennis Prager called his response "masterful" and caller after caller kept saying that they believe Giuliani on this. The problem is that his position, if he really holds it, is logically divergent and sounds simply like an attempt to have both positions. Consider the following:
- He says he hates abortion.
- He says that abortion is up to the individual's conscience.
- He says that he would appoint justices that are constitutionalists.
Now, if he means constitutionalists like pro-lifers have meant constitutionalists, that means he would appoint judges who would overturn Roe and outlaw abortion. And yet, he also says that he believes that women should have the right to an abortion. You can't have it both ways. Either you believe abortion is a right or that it should be overturned. When push comes to shove, you can't trust that someone who can't be mentally coherent will make the right choice about justices.
Further, when he was asked if Roe was bad law, he said that that is up to the courts to decide and that it has a very long precedent. Now, I don't know about you but I don't need a court to tell me when a law such as Roe is bad law. Do you think if he had been asked about the "final solution" that was made law by the Nazis he would have punted it to the courts?
The second argument made in his defense was that the only effect a president can have on abortion is through the appointment of justices, therefore, it doesn't matter if he eats babies for breakfast as long as he appoints justices who will overturn Roe. If this were actually true I guess it would be a decent argument but it isn't true. The president is responsible for appointments including the head of Health and Human Services, Secretary of Education, UN representatives and the FDA. These departments decide what drugs (over the counter abortifacients) are going to be approved, what is going to be taught about chastity in schools, what will be fought and proposed at the UN and many other abortion related issues. Do you really think that someone who believes that abortion is a right would appoint people who have opposing views to such positions?
The final argument which was repeatedly made was that Giuliani would appoint justices who would overturn Roe giving the decision on abortion to the states where it belongs. This is the argument that Dennis Prager made on his show yesterday. Okay, let's assume that Rudy is true to his mental incoherency and appoints justices who will overturn a decision that Rudy believes is a right. Now, abortion goes back to the states for a vote. Is this really what we are fighting for? Do we really just want abortion to be left up to the states or do we want the killing of the innocent completely outlawed?
Let me ask the question another way. If you were living in Germany in the late 1930's would you have argued that exterminating the Jews should be left up to the individual provinces in Germany and as long as the people voted on it, whatever they decided was okay? Or how about slavery? Are you against the 13th Amendment because it took the decision about the legality of slavery out of the states' hands? Evil is evil regardless of votes.