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 mandate 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.
In 1994, 59 percent of California voters approved Proposition 187, which denied a host of state benefits to illegal aliens. Within days, a court blocked the majority will, and four years later most of Proposition 187’s provisions were overturned. Former California governor Pete Wilson fought the courts by filing an appeal (later abandoned by his successor). Mayor Giuliani didn’t join the suit against Prop 187, but he hailed the judge’s decision to overturn it, telling immigration-rights activists, “Hopefully, the fate of Proposition 187 — both its passage and its most recent defeat in court — will be markers of the start and end of this most recent wave of anti-immigrant sentiment.”
When New York’s state legislature repealed a 33-year-old commuter tax on state residents who worked in New York City, Mayor Giuliani sued. He argued that lawmakers had wrongly deprived his city of revenue. When the state’s highest court upheld the tax repeal, Giuliani all but admitted he had mounted a frivolous challenge: “We expected that we would lose the case, so it doesn’t come as a surprise to me.”
In seeking to overturn legislation he opposed, Giuliani wasn’t acting as a private attorney hired to make a client’s case regardless of his personal views. Plaintiff Giuliani found enough merit in these suits to launch them in the first place. Candidate Giuliani explains that he now favors gun rights and tax relief, and he has taken a tougher position on immigration enforcement. What he hasn’t explained is how his judicial philosophy has changed since his days as a litigious mayor.
Conservatives don’t argue that it is always inappropriate to seek court action striking down laws passed by democratically elected bodies. In a recent debate, Mitt Romney criticized Giuliani for suing President Clinton over the line-item veto Congress passed in 1996. That time Mayor Giuliani won his challenge: In a six-to-three decision, the Supreme Court found that the president’s line-item-veto authority violated the Constitution’s separation-of-powers doctrine. Justices Scalia and Thomas were on opposite sides of the case.
But Plaintiff Giuliani didn’t take Clinton to court to vindicate an important constitutional principle. Clinton had used his line-item veto to strike a Medicaid-reimbursement provision that benefited New York City. Giuliani sued simply to protect his windfall, complaining that the veto “unfairly targets the city and state of New York.”
While Romney favors a version of the line-item veto that he believes would pass constitutional muster, Giuliani pledges to propose a constitutional amendment establishing a line-item veto. He explains, “The line-item veto is unconstitutional. You don’t get to ‘believe’ about it. The Supreme Court has ruled on it.” Here, Candidate Giuliani appears to endorse the proposition that, once the Supreme Court has spoken, an issue has been put to rest — in contrast with those who believe we are governed by the Constitution, not the Court. That position would have ruled out challenges to the Court’s abortion jurisprudence that saw a modified ban on partial-birth abortion upheld after a previous ban had been struck down.
Conservatives can only hope that President Giuliani — if such is our fate — can be counted on to appoint judges who would throw Plaintiff Giuliani out of court.