Says the man who once claimed that "Freedom... is about submitting to Authority." From AP via NY TIMES:

Giuliani Says Some Judges Hurt Democracy

RIVERSIDE, Calif. (AP) -- Republican presidential candidate Rudy Giuliani said Tuesday that judges who are not so-called ''strict constructionists'' threaten American democracy.

Giuliani, answering a question at a news conference about his support for abortion rights, veered into a broad criticism of the federal judiciary. He repeated his pledge to appoint strict constructionists to the federal bench.

''What 'strict constructionist' means is that a judge will interpret the Constitution in accordance with what someone else meant when they wrote those words and not try to legislate,'' the former New York mayor said. ''If you are not a strict constructionist, I believe you imperil the American democracy because you take the role of a legislator.''

As he has in the past, Giuliani said he would appoint judges in the mold of Chief Justice John Roberts and Justice Samuel Alito, President Bush's appointees to the Supreme Court and two justices embraced by conservatives.

Throughout the campaign, Giuliani has struggled to square what he calls his personal opposition to terminating pregnancies with his long record of support for a woman's right to choose.

He was asked at the news conference to explain how he could support reproductive rights but at the same time promise to install justices whose strict constructionist views could threaten the landmark Roe v. Wade decision that established a constitutional right to an abortion.

He never answered directly. Strict constructionist thinking, he said, ''goes way beyond any one issue. It goes beyond abortion, it goes beyond gun rights, it goes beyond free speech.''

Giuliani's position on judicial appointments appears aimed at reassuring conservatives who might be edgy over his left-leaning views on abortion, gay rights and gun control.

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And this guy is worried of being perceived as a moderate?

Ivor, The Court ruled, 7 to 2, that Abortion is a Constitutional right guaranteed by the Due Process Clause. The Court has the power to make such a ruling as per Marbury v. Madison 5 U.S. 137 (1803) LINK. In more than 200 years, the Legislative and Executive Branches have not availed themselves of their checks and balances over the Judiciary in this regard. Nor has anyone attempted to amend the Constitution to preclude Judicial Review, either in the Congress or by calling for a Constitutional Convention as provided for in Article V of the Constitution.

Roe is a Constitutionally valid decision, and, in my opinion, the right decision. If you oppose abortion, or the doctrine of Judicial Review, then you should vote for right wing candidates who would do away with both. That's how you can make your vote count.

Oh wait, that's right, you don't have a vote here, do you? Still, I'm impressed. I was not aware they taught American Constitutional Law in London. Were you a classmate of Terry Randall? Or Antonin Scalia?

EDIT: You may not be aware of this, Ivor, but the term "Strict Constructionist" doesn't mean what it says on it's face. It's a kind of code, like "Genteel Society," "A certain class of people," "a good school" "Restricted Club," etc. It's a term that's bandied about by Right Wing organizations like The Federalist Society to refer to judges that adhere to a certain ideology. They are no less activist in their rulings than Judges on the Left. Maybe more so, since they are attempting to undo all the progressive advances made by the Warren Court, and, to a lesser extent, the Burger Court. Like any other politician of either party, Judges use restraint when it serves their purposes and wax expansive when that course advances their agenda. It's all a game of whores, Ivor. The question is: which one do you want to get fucked by?

Jim,

Perhaps there is a plausible argument to interpret a privacy right in the constitution, but its a stretch. But where roe goes completely into legislation is deciding that the government does not have an interest during the first trimester, based on the courts evaluation of medical science. If thats not legislation, i don't know what is.

The court examined the statute and found it violative of the Constitution. If people don't like that, they can try to amend the Constitution.

In 204 years, neither the Legislative nor the executive branches have tried to challenge Judicial Review. The closest anyone came was when Andrew Jackson famously said "The Justices have made their decision. Now let them enforce it." He then proceeded to royally Fuck over the Cherokee Nation. If the other two branches have failed to exercise their Checks and Balances over the Judiciary, then this griping 35 years after Roe is nothing more than sour grapes on the part of Right Wing Abortion Foes.

Speaking of Right Wing Abortion Foes, where's your boy Rudy stand on Abortion these days? Nobody can get a straight answer out of him. He used to respect Roe. Is he going to abandon that principle, too? Isn't that what you're always accusing the Democrats of doing?

An easier option once available the foes of Abortiuon, Porn, Judicial Review, the Fourth Amendment and Freedom in General is this time honored tradition. The fact that they did not avail themselves of it during the period between 9/12/01 and 11/7/06 speaks volumes about the purported seriousness, stremgth and honesty of their convictions. From NY TIMES OP-ED:


Stacking the Court

Huntington, W.Va. -- WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight.

The framers of the Constitution did not envisage the Supreme Court as arbiter of all national issues. As Chief Justice John Marshall made clear in Marbury v. Madison, the court’s authority extends only to legal issues.

When the court overreaches, the Constitution provides checks and balances. In 1805, after persistent political activity by Justice Samuel Chase, Congress responded with its power of impeachment. Chase was acquitted, but never again did he step across the line to mingle law and politics. After the Civil War, when a Republican Congress feared the court might tamper with Reconstruction in the South, it removed those questions from the court’s appellate jurisdiction.

But the method most frequently employed to bring the court to heel has been increasing or decreasing its membership. The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress.

The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.

In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.

After Ulysses S. Grant was elected in 1868, Congress restored the court to nine. That gave Grant two new appointments. The court had just declared unconstitutional the government’s authority to issue paper currency (greenbacks). Grant took the opportunity to appoint two justices sympathetic to the administration. When the reconstituted court convened, it reheard the legal tender cases and reversed its decision (5-4).

The most recent attempt to alter the size of the court was by Franklin Roosevelt in 1937. But instead of simply requesting that Congress add an additional justice or two, Roosevelt’s convoluted scheme fooled no one and ultimately sank under its own weight.

Roosevelt claimed the justices were too old to keep up with the workload, and urged that for every justice who reached the age of 70 and did not retire within six months, the president should be able to appoint a younger justice to help out. Six of the Supreme Court justices in 1937 were older than 70. But the court was not behind in its docket, and Roosevelt’s subterfuge was exposed. In the Senate, the president could muster only 20 supporters.

Still, there is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt’s 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

Jean Edward Smith is the author, most recently, of “F.D.R.”