Editor’s note: This piece appeared in the November 2, 2008, issue of National Review.
Candidate Rudy Giuliani pledges to appoint strict-constructionist judges who won’t make policy from the bench, because “making laws is the responsibility of an elected legislature.” He cites Justices Scalia, Thomas, Roberts, and Alito as model appointments. Plaintiff Giuliani had a wholly different view of the judge’s role. As mayor of New York City, he launched lawsuits that sought liberal rulings to punish gun manufacturers and to overturn legislation on immigration, welfare reform, and taxes. When elected legislatures made laws with which he disagreed, this Giuliani thought it was a judge’s responsibility to legislate from the bench.
In late September, Rudy Giuliani appeared at a National Rifle Association conference to assure the audience that he opposes any new restrictions on gun ownership and views the right to bear arms as “just as important a part of the Constitution as the right to free speech and the other rights.” On the same day, the nation’s biggest gun manufacturers filed an appeal to overturn a ruling that had allowed a suit brought against them by Mayor Giuliani to proceed.
That lawsuit was filed in 2000 against 26 gun manufacturers and distributors for their “intentional and reckless” practices allegedly leading to gun violence. Congressional Republicans saw it as an attempt to achieve in the courts what the anti-gun lobby couldn’t achieve through the legislative process. The gun-rights lobby fought back, and scored a victory when President Bush signed a law ordering the dismissal of lawsuits that attempted to hold gun manufacturers accountable for the actions of criminals. Candidate Giuliani now explains that the suit, which current New York City mayor Michael Bloomberg is still pushing, “has taken several turns and several twists that I don’t agree with.” Apparently he still endorses the suit as originally conceived.
The only Republican mayor to participate in lawsuits against the gun industry, Giuliani claims he was merely trying to use every available tool to reduce crime in his city — including a novel theory of culpability and an activist judge who agreed with it.
Giuliani’s misuse of the courts has not been limited to guns. When President Clinton signed long-overdue, GOP-style welfare reform in 1996, conservatives saw it as a triumph for the new congressional majority. But Mayor Giuliani declared, “We will not implement this law,” and sued the Clinton administration to overturn provisions he disagreed with.
The welfare reform prohibited local jurisdictions from passing laws to prevent their officials from voluntarily disclosing information about the citizenship status of aliens. This conflicted with a 1989 New York City executive order signed by former mayor Ed Koch, which barred city officials from reporting immigration status to the INS. Mayor Giuliani supported this order — and, although the welfare reform didn’t <i>mandate</i> that city officials report illegal aliens, he claimed that it would lead to their “indecent or inhumane treatment” by ending New York’s “zone of protection for illegal and undocumented immigrants.” He also challenged the constitutionality of a provision denying some welfare benefits to immigrants. In both cases, he lost: A federal court held that Congress has broad authority to legislate in the area of immigration.