Federalism incentives

Rudy Guiliani had this op/ed (HT: Patterico) discussing his view on judicial appointments. Go read it then come back; the following is only a half-formed through, but I'm going to throw it out there.

Guiliani's piece essentially reiterates a commitments to nominate Justices in the mold of Scalia and Thomas. A missing name here is Rehnquist. One of my first-order concerns is federalism. John Eastman's "end of federalism" piece a couple of years ago horrified me. What of the Supreme Court, where federalism's two most prominent modern advocates - Rehnquist and O'Connor - have departed?

Ann concluded some time ago that Justice Scalia isn't interested in federalism; while I think that overstates it, I agree it's hard to build a case that federalism is a primary interest for Scalia (if he could overrule one case, Hibbs or Lawrence, I'll bet it wouldn't be Hibbs), and it's almost inarguable after Raich that he favors borader and deeper federal power than did Rehnquist and O'Connor. What of the Dynamic Duo? At an ACS forum recently, JCG offered (MP3 at 54:50-55:11 the assesment that Roberts would be very like Rehnquist except Roberts "doesn't share" Rehnquist's views on federalism, or at least isn't as interested in it as his old boss. And then there's Justice Alito. If Alito's consideration of legislative history in Zedner sent shivers down my spine, the citation to Garcia in his United Haulers Assn. dissent this term (joined, mind you, by Justice Kennedy) chilled the blood.

"Much of the Constitution is concerned with setting forth the form of our government, and its primary protections of liberty are structural - as Benjamin Franklin put it when emerging from the Constitutional Convention, the drafters gave us a republic, if you can keep it. We keep it by respecting the Constitution's structures. First among these structural protections are the separation of powers, served vertically by federalism...."1 My first loyalties lie with the Constitution and federalism is not only a commitment demanded by fealty to the structure of the constitution, it also has significant normative virtue, as Althouse has explained in great detail throughout her corpus of work.2 The idea that the Court may be more conservative at the expense of being less interested in federalism strikes me as something short of ideal.

If I were picking Justices, I would want someone who had Scalia's approach to law, but with Rehnquist's focus on federalism. And here's the point of the post: I wonder if Guiliani might be more likely to deliver such a nominee than other, more socially-conservative candidates. Guiliani, much more than most other candidates, can be in this race only because of federalism. The basic pitch of his candidacy, it seems to me, is that "I'm liberal on issues that are beyond the ambit of the federal government," which surely gives him huge incentive to pick candidates who are, yes conservatives, but also federalists, who will narrow the scope of national power even if that means going against conservative interests?

Related:
Rudy on Judges III

1. 1. SF: Hein v. Freedom From Religion Foundation (internal quotation marks and footnotes omitted) (quoting New York v. United States, 505 U.S. 144, 187 (1992); Easterbrook, Alternatives to Originalism? 19 Harv. J.L. & P.P. 479, 479-80 (1996)).
2. 2. See, e.g., Variations on a Theory of Normative Federalism: a Supreme Court Dialogue, 42 Duke L.J. 979 (1993); Enforcing Federalism after United States v. Lopez, 38 Arizona L. Rev. 793 (1996); On Dignity and Deference: The Supreme Court's New Federalism, 68 U. Cin. L. Rev. 245 (2000); Why Talking about States Rights Cannot Avoid the Need for Normative Federalism Analysis, 51 Duke L. J. 363 (2001); The Vigor of the Anti-Commandeering Doctrine in Times of Terror, 69 Brook. L. Rev. 1231 (2004)).