Bench Memos

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Rudy and Roe


I was going to say something about this NYT op-ed by Eric Johnston, a theology student at Catholic University, but Kathryn and especially Ramesh got there before me.  Johnston tries to make a case that Rudy Giuliani, precisely because he is a pro-abortion-rights candidate, could do more for the pro-life cause than any other candidate in the Republican field.  To the problems Ramesh sees with Johnston’s case, I would add this: Republicans have had no trouble electing pro-life presidents these last 30 years, yet Johnston seems to think that a pro-abortion GOP candidate would have a better shot at breaking some logjam or other in the public debate over the issue.  But the logjam has only secondarily been in the realm of public opinion.  First and foremost, as long as it asserts its hegemony over the issue by upholding Roe, the logjam has been in the Supreme Court.  And Rudy Giuliani is the least likely of all the leading GOP contenders to attend to this question (even tacitly while avoiding that allegedly awful “litmus test”) in choosing Supreme Court nominees.

Yes, he has pledged to nominate “strict constructionists.”  And he has declared that judges should “not amend the Constitution without the consent of the American people.”  But as Johnston cannot deny, Giuliani has not said that Roe v. Wade was such an illegitimate judicial “amendment” of the Constitution.  He has not said that for him, strict constructionism requires the overturning of Roe.  He has even said that judges could go either way on the survival of Roe as a precedent and it would be “O.K.” with him.  Gee, that’s some well-thought-out strict constructionism there.

There’s a lot to like about Rudy Giuliani on other grounds.  And this isn’t 1860, when there was just one issue in the election.  Still, I’m reminded of what Harry Jaffa says (in his great book on Lincoln, A New Birth of Freedom) of a moment in the late 1850s when some in the Republican Party dallied with the idea of making the Illinois Democrat Stephen A. Douglas its standard-bearer.  Douglas was to slavery then what Giuliani is to abortion now–the “don’t care” man, who declared that it mattered not to him which way people voted on slavery in the territories, just as Rudy shrugs at either outcome the next time Roe is tested in the Supreme Court.  As Jaffa puts it in describing this crisis moment for the Republicans and the country then:

The Declaration of Independence as the “sheet anchor of American republicanism” would have been abandoned, to be replaced by popular sovereignty.  There would have been no Gettysburg Address to memorialize the Founding in the minds of American citizens.  Lincoln’s argument that the principles of the Declaration contained a promise to all men everywhere would have perished from the earth.  What would have made the Union worth saving in such a case is hard to imagine.

At this moment it was essential for Lincoln, the party, and the country that he make Douglas unacceptable to the Republicans.  For the future of the right to life, it may be equally essential that Giuliani be made unacceptable to today’s Republican Party.  Eric Johnston, I’m afraid, has his political calculus exactly backwards.


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