Giuliani on Obama’s laughable judicial philosophy
posted at 11:15 am on May 7, 2008 by Ed Morrissey
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Continuing the conversation on judicial nominations, Rudy Giuliani appeared on Fox yesterday to review John McCain’s Wake Forest speech. He gave McCain high marks, but laughed out loud at Barack Obama’s response. Giuliani questioned whether the constitutional law professor even knows what role judges are supposed to play and the difference between the judiciary and the legislature:
KELLY: Well, it didn’t take long for Obama’s camp to fire right back. At that, we’ll get to the Obama campaign reaction in a minute. First, we want to get the mayor’s reaction to John McCain’s accusation saying that Obama — and he actually took aim at Clinton, too, having an elitist view of judges.
GIULIANI: I would say that’s a very legitimate difference, rather than a charge or an accusation. John McCain is going to appoint judges who are conservative. Barack Obama will appoint judges who are left-wing. He will appoint activist judges who are activist judges in the sense of trying to take the Constitution and move it into solving social problems rather than feeling stuck with the words of the Constitution.
KELLY: It’s funny you should mention that, Mr. Mayor, because Barack Obama in a statement responding to John McCain’s point today said and I quote, “Barack Obama has always believed that our court should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.”
Why the laughter?
GIULIANI: Well, the laughter because that is not what a judge in the American legal system is supposed to do. That is not a really responsible definition of a judge. The judge is supposed to interpret the law. And the law is written by other people. It’s written by members of the Congress. It’s written by framers of the Constitution. It’s written by the people when they amend the Constitution.
And then a judge has to have a certain, I would say, dedication to trying to interpret what other people mean and sometimes cannot put their social views into action. This is a very fair issue. John McCain would appoint judges who are more, I would call, originalists in terms of trying to define the meaning that other people had.
I think Senator Obama has made the case very strongly that John McCain has made that, he will appoint social activist judges, judges who tend to try to solve social problems rather than trying to figure out what does the law mean?
In our earlier threads, some of our commenters insisted that there would be no difference between McCain and Obama on judicial appointments. Obama himself made the difference clear; he wants judges who would impose social policy rather than interpret and enforce existing law. This makes sense from a legislator who has done nothing to propose social policy in his three years in the Senate. He would rather take the shortcut on which liberal activists have grown to rely when they realize that their radical plans have little chance of success in the legislative process.
Of all the candidates, I believed that Giuliani would have nominated the best judges. As a prosecutor, he understood the need for originalism and judicial modesty. He also had Ted Olson as his chief adviser on the judiciary, a man who spent years arguing cases at the Supreme Court and also saw the need for originalism up close and personal. Olson has now become an unofficial adviser to the McCain campaign after endorsing him in February after Giuliani’s withdrawal from the Republican primaries.
Giuliani doesn’t believe that McCain and Obama would pick the same kind of jurists for important federal bench openings. Given that we can expect at least two Supreme Court openings in the next term, that philosophical difference — as outlined by Obama himself — should indicate the stakes in this election to conservatives. Giuliani is laughing today, but if President Obama fills those slots with a Democratic majority in the Senate, conservatives won’t be laughing then or for the next twenty years afterwards.
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Between Obama and McCain, I don’t see how any conservative sane person can think that Obama would end up being better for America. Or that McCain would be worse.
At least I understood the logic behind Bush Derangement Syndrome, because sufferers were all democrats. At least a few of these people admit that they will actually vote for McCain. At least there are a few.
wise_man on May 7, 2008 at 5:27 PM
Not until 2010 at least, when they have to answer to the voters, not all of whom are Vermont-style granola eaters.
flenser on May 7, 2008 at 5:28 PM
Then you need to engage your brain. McCain seems to hate conservatives as much as Obama does, perhaps more.
flenser on May 7, 2008 at 5:29 PM
Rudy was my pick in the Primaries from the start, he’s very smart he should have gotten the nomination.
Chakra Hammer on May 7, 2008 at 5:38 PM
O’RLY? Obama Voted AGAINST John Roberts and Alito.
Chakra Hammer on May 7, 2008 at 5:40 PM
Looks like I got my answer.
wise_man on May 7, 2008 at 6:17 PM
The judges is the single reason why I will vote for McCain in November. No, I’m not happy about his scolding of Repub. Party ads in N. Carolina, and no, I am not happy he is going to speak to the racist La Raza organization (though I hold out a slim hope that he’ll deliver a speech that calls for following the laws of the land regarding immigration). But as others have said, Obama’s judges will absolutely be extreme leftist activist judges, and McCain’s rhetoric suggests his won’t. I literally lie awake at night despairing at the loss of basic freedoms we will suffer should Obama or Clinton appoint the next 3 Supreme Court justices. Opposition speech? Illegal! Talk radio? Illegal! The Electoral College? Get rid of it! The 2nd Amendment? Well, you can’t rob people of their fundamental, inalienable rights if they’re armed, so we’ll be turning in our guns. The far left cannot win its agenda in the voting booth. They must force it upon the nation via the courts. This is not hyperbole. Look at Ruth Bader Ginsburg’s opinions on the most pressing issues of the day, and then imagine that she were in the majority. It will be the beginning of the end, and those of us who revere the Bill of Rights and the US Constitution will be made criminals for our devotion to what Obama, Clinton and their ilk view as a racist, xenophobic, anachronistic document.
Rational Thought on May 7, 2008 at 6:23 PM
Why would anyone want to know Rudy’s opinion on how conservative McCain would be?
At least Rudy won’t be appointing any judges.
I was at the Federalist Society conference last Fall when Olson introduced Rudy.
Notwithstanding Olson’s intro, Rudy elicited a tepid, measured response.
I wondered why someone as seemingly conservative as Olson could promote a Rudy candidacy, so I chalked it up to personal friendship.
But when I saw that Olson jumped on the McCain bandwagon, I discerned that he is simply a party man.
A fine man, no doubt, but I can no longer value his opinion on these types of matters.
molonlabe28 on May 7, 2008 at 6:56 PM
paul006 on May 7, 2008 at 2:57 PM
Thanks for the links!
VolMagic on May 7, 2008 at 6:56 PM
Judges can’t “impose social policy,” and that’s not even what the statement said. I really don’t see how you can spin the words “stand up for social justice” into “imposing social policy.”
Judges by their very nature have the power to change American law. Sorry if you don’t like that.
Nonfactor on May 7, 2008 at 8:58 PM
Thank you.
No, they have the power to interpret the law, to some degree. Or at least, that is what they should be doing. Traditionally, “social justice” has been, in the main, the imposition of policy through improper means, such as judicial activism.
Federal judges do NOT write or make law, except for in rare “Bivens” type (federal common law remedies) situations and in a few other rare exceptions. Therefore, when Obama says “stand up for social justice” what he quite obviously means is that he wants judges who will ignore legislative intent, stare decisis and plain meaning in favor of an outcome that the justice feels will be beneficial to a subgroup. These are legislative decisions, not judicial. If you think otherwise, then you should reconsider whether you want to live in this democratic republic under our Constitution.
exlibris on May 7, 2008 at 9:35 PM
Nice non sequitir. So what? That has nothing to do with the issue of imposing social policy, which activist judges more than certainly do. When the Massachussetts Supreme Court ordered the legislature to enact legislation that the court mandated, that was imposing social policy.
When the Blackmun decision invented a bogus right to kill a living infant from the theoretical “right to privacy” in Roe vs Wade, they imposed social policy on the country. It happens all the time, and no, it is not what judges are supposed to do.
Just another reason why Obama is an idiot, and a failure at the one thing he is supposed to be good at: constitutional law. What, exactly, is this douchebag good at, besides making speeches that liberal lemmings cry over?
Jaibones on May 7, 2008 at 10:17 PM
A judges job is to stand up for LEGAL justice as written in our laws and in the constitution. Standing up for social justice was the basis of the Bolshevic Revolution that transformed Russia into the Soviet Union…and we all know how well the social justice there turned out.
BadMojo on May 7, 2008 at 10:18 PM
Either you need to start drinking earlier, or stop drinking earlier. Tool.
Jaibones on May 7, 2008 at 10:18 PM
I’ve now moved past my frustration with the left. I am now in the “Holy crap… Obama is not just a liberal that I disagree with, he’s truly a danger to our country and our way of life.”
With McCain acting the fool it is truly possible that Barack and Michelle will be ruining our life.
cannonball on May 7, 2008 at 10:19 PM
While I’m not disagreeing with Giuliani regarding Obama and his likely path when it comes to chosing USSC Justices and such but it’s just odd hearing a liberal like him going off about someone else not being conservative enough.
Yakko77 on May 7, 2008 at 10:26 PM
There is absolutely NO basis for thinking that McCain would appoint liberal judges. None. On that issue, he has been consistently conservative his whole career — MUCH more consistent than lots of other conservatives (e.g. Romney)
Some of you folks need to trade in your fantasies for some rational analysis. No matter how ticked you are at McCain for some UNRELATED issue, don’t translate that into an idiotic position on this one.
Pythagoras on May 7, 2008 at 11:01 PM
I wonder if Obama will be hoisted on the petard of his own honesty. Earlier he said he wants to increase the capital gains tax even though it will cut revenues and slow growth, because it’s the fair thing to do. Now he says he’ll appoint judges that effect social policy, even though the Constitution says that’s the role of the legislature. He represents his intended policies with clarity and honesty. Most people should be able to see his policies clearly and honestly are bad for the country. Redistribution of wealth in the name of fairness, but a system with much less wealth to distribute. Hijacking the judiciary to bypass the will of the people to make new laws. It’s wrong. Even Obama knows that. He says that.
Paul-Cincy on May 8, 2008 at 12:40 AM
Fred Thompson is a solid federalist and would have done well here also.
electric-rascal on May 8, 2008 at 3:25 AM
I’m sorry what did he say? Megyn Kelly was on, so I was distracted.
LtE126 on May 8, 2008 at 7:17 AM
I require clarification on this issue. Certainly a president Obama would appoint legislative-based judges who most certainly would be liberal in ideology. However, when it comes to McCain, I wonder if it is a sense of meaning when he talks about appointing conservative judges. When McCain speaks of appointing conservative judges, is he defining what most people would understand as conservative, or is it more that the appointed judge would be more conservative, relativistically, to Obama’s choice? In other words, McCain may appoint a judge that is not so liberal as Obama’s and would, perhaps most of the time, interpret the law as it was written, rather than, if I may be so blunt, pull it out of their ass.
Weebork on May 8, 2008 at 11:56 AM
Good question…look at his record of support, and Obama’s record of support (or dissent). That will answer your question.
He doesn’t talk about conservative judges in the political sense, he states he wants judges to interpret the laws, not make law. Making law is reserved for congress. Obama wants the judges to make law.
right2bright on May 8, 2008 at 12:32 PM
I don’t believe that his record supports your assertion, but no matter - I’m much more interested in how disturbingly hot MK looks in the librarian getup.
Jaibones on May 8, 2008 at 1:39 PM
Perhaps you can correct an apparent misconception of mine. Seemingly a few dictionaries’ misconception as well:
Judicial:
1 a: of or relating to a judgment, the function of judging, the administration of justice, or the judiciary b: belonging to the branch of government that is charged with trying all cases that involve the government and with the administration of justice within its jurisdiction — compare executive, legislative
Legislative
1 a: having the power or performing the function of legislating b: belonging to the branch of government that is charged with such powers as making laws, levying and collecting taxes, and making financial appropriations — compare executive, judicial
Seems as though the legislative branch would “legalize same-sex marriage” if that was to happen. The judicial branch would judge the law if challenged in court.
MoCoM on May 8, 2008 at 8:29 PM
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