Bench Memos

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Sorry, No Sale


The WSJ’s features an interview today by James Taranto of Theodore Olson, with the subhead “Can the lawyer who won Bush v. Gore win over social conservatives for Rudy Giuliani”?  Surprisingly little of the article, however, is devoted to Giuliani’s problems with social conservatives (read: abortion opponents); in fact, a lot of it has nothing to do with Giuliani at all, instead focusing on Olson himself.  Here is the sum total of Olson’s appeal to social conservatives on Giuliani’s behalf, as far as Taranto tells us:

Sitting in Mr. Olson’s law office during our early-morning interview, I ask how his candidate can reassure social conservatives. Mr. Olson points to the judiciary: “Judges have taken some of those decisions off the policy table, taking them away from the people by constitutionalizing these issues. The only thing that someone elected president can do about those things is appoint good, solid judges who will act as judges–interpret the law, not make it up; not create new rights that weren’t there in the Constitution. I am convinced . . . that Rudy knows how important it is to appoint the right kind of individuals as judges, and that he will do that.”

That’s my emphasis on Olson’s claim that the “only thing” a president can do “about those things” (presumably abortion but maybe other “things” too, like marriage) is to appoint judges.  But this is plainly wrong.  The maintenance of the Hyde Amendment, the Mexico City policy, a tough line on cloning and embryo destruction, on euthanasia and assisted suicide, not to mention protection of marriage and related issues–all these things require much more from a president than merely judicial appointments.  They require rhetorical devotion, legislative leadership, executive-branch appointments, attention to administrative rule-making, advocacy from the Justice Department–in short, the whole toolkit of executive power and influence.  What we get from Giuliani on these matters is mostly . . . shrugs.

Even on that “only thing” that isn’t the only thing, Olson does no more than repeat that he is “convinced” that Giuliani will appoint good judges.  But Olson supplies the rest of us with no reason to be convinced ourselves, other than the currency of his own credibility.  This is solid coin, but unfortunately of low value here, so long as Giuliani sticks to his so-far consistent line that a good judge, in his view, could go either way on the status of Roe v. Wade.


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