Rudy and Roe, yet again

Ann's not convinced that Guiliani's recent manouvering about abortion amounts to anything, but I admit that it's still making me nervous.

Specifically, if "he [i]s open to seeking ways to limit [abortion] ... [but] not open to limiting the right to have it," there might be something new (and potentially disabling) in that statement if what he means is that he believes that overruling Roe-Casey falls into the category of "limiting the right to have [an abortion]."

That is, if he means only that he strongly supports keeping abortion legal, that's (to borrow his term) okay. If, on the other hand, by "there has to be a right to choose" he means "there has to be a right to choose and that means Roe-Casey has to stay," then I'm not okay with that. At the risk of flogging a dead horse some more, it's not a question of demanding that judicial nominations on a commitment to overruling a single case. Rather, a nominee's view on Roe says a lot about their views on law more generally. It's "a very good litmus test for a judicial nominee[,] [because] [a]sking about Roe will at once provide a candidate with an opportunity to discuss two matters which ... [are particuarly] important to textualists: their view on substantive due process (or, indeed, any other grounds they feel they might rest unenumerated ... [rights] upon), and their views on stare decisis, and when (or if) it might protect a decision that was wrongly decided as an original matter." That case is so plainly wrongly-decided, such a corrupting influence on surrounding law, and fosters no reliance interests1 that it's hard to imagine a nominee - I guess there are a couple of exceptions to that rule - who I'd be happy with who had a view of law in which Roe-Casey could be sustained.

I guess what I want to hear from Guiliani is a fairly unambiguous statement of what I had believed his position was: he supports abortion rights, but he does not believe the Federal Constitution protects that right (there being many rights that the Constitution of the United States does not protect), he does not agree with Roe v. Wade as an initial matter, and even if he will veto laws banning abortion and will use the bully pulpit to urge states to keep abortion legal and restriction free, he will appoint judges who will overrule the illegitimate decisions requiring those states to do so. That understanding is certainly consonant with his public pronouncements on the subject, but on the other hand, I worry that it may simply reflect wishful thinking on my part. If that's his position, Guiliani is a viable nominee. If it isn't, I guess I'm waiting on Fred.

Post facto:
Bolling v. Sharpe reconsidered: precedent, original meaning, and prudence (part 1) (2/21/08)

1. 1. In my view, at least: the reliance interest usually held out is on legal abortion, not Roe. Overruling Roe-Casey will not ipso facto result in any change in substantive law at all, which I regard as a threshold question for asessing reliance. Legal abortion and abortion's status as a Constitutional right are separate issues; it is (so to speak) "the big lie" that they are one and the same. Thus, Guiliani can be pro-choice and I can still support him. But he can't be pro-Roe and expect me to go along, at least in the primary.