If the GOP primary electorate were composed entirely of members of the Federalist Society, Rudy Giuliani would be the heavy favorite. Last Friday his opponents gave him an uncontested day before this conservative lawyers group celebrating their 25th anniversary.
A number of the leaders and founders of this esteemed organization including Steven Calabresi and Ted Olson make up his judicial advisory board (by Giuliani’s count no less than seven of his judicial supporters spoke at the three day conference) so it should have come as no shock that he was warmly greeted, interrupted frequently by applause and left to a robust standing ovation.
He began with a riff on Hillary: “And you didn’t invite one of the newest federalists. Well, she announced—
That the best way to deal with driver’s licenses for illegal immigrants, well now wait now. I’ve got to get this straight.
First she was for the idea and supported Governor Spitzer who wanted to give driver’s licenses to illegal immigrants. Then she was against the idea. Then she was for and against the idea and then finally she said it should be decided on a state-by-state basis.
This is the only time in her career that she’s ever decided anything should be decided on a state-by-state basis. You know something? She picked out absolutely the wrong one.
Right? I mean this is one of the areas that is given to the federal government to deal with under our Constitution, the borders of the United States, immigration. So maybe you were right not to invite her now that I think about it.”
Giuliani went on to argue that there are 200 reasons to be concerned about who is the next president. Those 200 are the number of federal judges that the next president will support in his or her first term. The core of his argument was that if a Democrat is elected, “ I think you’re going to see 200 decisions of judges who are like those judges who really began the reason for the Federalist Society in the first place. Judges who will be activists in the sense of trying to legislate their social policy through judicial interpretation. Let me assure you that if I am the President of the United States every single one of those decisions will be made very carefully, very deliberately with the advice of people like Ted [Olson] and the people on my judicial advisory committee because we’re seeking to find judges who understand the very, very important concept that judges exist to interpret the law, not to invent the law.”
As he has done before Giuliani specifically pledged to nominate judges in the mold of Justices Thomas, Roberts and Scalia.
The former New York mayor continued with a nod to “American exceptionalism” and the often expressed view that what binds America is its constitution and belief in freedom. One of his biggest applause lines: “America is not great because of its central government.” Pitching to his audience, Giuliani touted the benefits of federalism. Apparently in an effort to assure conservatives that he recognizes the rest of the country is not like New York he declared: “What works in Manhattan, New York is not necessarily what works in Manhattan, Kansas or in Manhattan Beach, California. They maybe all named Manhattan but they have different problems, different issues. The genius of our system is we have the flexibility to allow local governments and to allow states to respond to the different challenges in a different way. We don’t put a national centralized straightjacket on them.”
He of course reminded the crowd of his record of tax cutting and welfare reform in New York. He then returned once again to the topic of conservative judicial nominees, reminding the audience of the Democrats’ obstructionism in blocking the nominations of Miguel Estrada and Janice Rogers Brown, declaring: “And really, the next President is gonna have to call on the Senate to change its rules and ask the Senate to really take seriously what advice and consent means. What advice and consent means is that someone if sent there by the President should get an up or down vote within a reasonable period of time. .. If I’m President, you can be certain I will have the courage to present nominees that I believe in and am willing to stand behind. Well, the Senate should have the courage to vote yes or no but not to hide on those nominations.”
He wrapped up with kudos for Federal DC Circuit Judge Silberman’s recent ruling striking down the Washington D.C.handgun ban, a defense of religion in the public square and a Reagan like declaration of optimism about America’s prospects.
Giuliani’s key judicial advisor, former Solicitor General Ted Olson, said in an interview after the speech opined that the enthusiastic response was recognition that on legal issues near and dear to many in the crowd Giuliani “spoke from the heart.” He, as Giuliani had done, pointed to the mayor’s judicial advisory board, as an indication of the type of people he would consider for appointments if elected.
What to do about a filibustering Senate? Olson said sternly the next president “must take it to the American people” and make obstructionists “pay a fierce political price” for denying up and down votes to qualified nominees.
Other reaction in the crowd ranged from “exceeded all expectations” to dismay that he had not specifically addressed Roe.v Wade and committed to overturning that decision. Perhaps the most frequent observation: he had helped himself by appearing and Fred Thompson, another lawyer who often writes and speaks on issues of federalism, had missed an opportunity to make the case for his own candidacy.
I also spoke to Giuliani advisor and Federalist society founder Steven Calabresi on why these issues matter to non-lawyers. He responded simply: “Are we going to follow our constitution or disregard it?”
I asked him if he was troubled by the spate of tell-all books about the Supreme Court and whether this was a good thing for the courts. Calabresi explained that with Roe the court had “inserted itself in all areas of life and it became more and more important” and because of that who the judges were and the confirmation hearings became “mini elections” ratifying the results of public opinion polling during the hearings.
What to do? Calabresi said that “the only way to put the genie back in the bottle is for the Supreme Court to restrain itself” and that what we need is “more justices who believe in judicial restraint and originalism.” What about Democrats’ plea to appoint judges who will “look out for the little guy”? Calabresi explained that judges take an oath of office written by the first Congress and signed by George Washington “to render equal justice unto the rich and poor.” He says: “The job of a judge is to decide cases according to the law.” That is a sentiment all conservatives, regardless of their favored candidate, should be able to endorse.