Rudy on Judges III

Justin Gardner notes a survey of Rudy Giuliani's judicial appointments while mayor of New York City. The story suggests, inter alia, that "of the 75 judges Giuliani appointed to three of New York state’s lower courts found that Democrats outnumbered Republicans by more than 8 to 1 ... Barry Kamins, a Democrat who chaired the panel of the Bar Association of the City of New York, which reviewed Giuliani’s appointments[,] [said] 'He picked a variety from both sides of the spectrum. They were qualified, even-tempered, academically strong.'"

(This post assumes the accuracy of the foregoing, and leaves investigations about whether the factual claim is correct to others).

This puts me in a bind. I'm more interested in a judge's judicial philosophy than their partisan identification, but I've made clear that there is no single issue of greater importance to me than the courts, and that I can live with Giuliani being liberal on social issues if he's also a federalist. See other posts and comments passim. Thus, I've argued, conservatives should be federalists, and should be willing to support a nominee who doesn't necessarily share their view on abortion as long as he has the right view on who gets to decide and will appoint judges who share that view. Federalism is not only the correct position, IMO (Giulliani is saying exactly what I'd want to hear from a pro-life contender), but on a purely pragmatic level, it's Giuliani's only choice: federalism is the only arrow in his quiver that can defeat the argument that he's too socially liberal for conservatives to vote for him, and he does that by saying "you can trust me to appoint the kind of judges that will let the mayor of New York to decide one way and the legislature of South Dakota decide another way."

The purpose of this story is, of course, to throw that into doubt.

Frankly, my initial reaction was, well, these aren't federal judges that he was appointing - how's it comparable? He's already made clear that at sub-federal levels, for the functions exercised by political authority at those levels, he's much more socially liberal than he is in terms of the functions and roles exercised at the federal level. I wouldn't even say that it's necessarily incoherent to believe that state judges should contrue state law more liberally than one believes that federal (and, concededly, state) judges should construe federal and constitutional law. I don't find that position compelling myself, but I could understand it. On the other hand, as Pat pointed out in an email, even at the level of the judges this story reports about,

they're still judges, and they heard all types of cases. Even at the state level, they're not supposed to be setting policy, just interpreting the laws the legislature passed and the constitution of the U.S. and New York. State trial-court level judges are not part of the "political authority," but part of the judicial authority.

(Pat also makes the point that the authors of the story are working with thin materials at best - so Rudy appointed as a judge someone who was "an officer of the International Association of Gay and Lesbian Judges. But that officer could, conceivably at least, be a textualist and have a relatively conservative judicial philosophy," which is the more important point).

I find myself conflicted, dear readers - not pleased by this news, but not quite ready to throw my hands in the air and jump off the train. That view is strengthened by a point Chuck Todd made on NPR this evening, which is that any candidate is going to be a compromise - he was talking about social conservatives, but it applies to me too. I would worry about Newt's judges - I've read his book. They would be conservative, sure, but Harriet Miers was a conservative. Not good enough. Ditto Duncan Hunter and his sonogram test (don't you get it, Duncan? The test for what the Constitution says about abortion isn't how strongly you feel one way or another!).

What do you think?

UPDATE by Pat: Just saw this ABC News blog entry which provides Rudy's response. As Simon notes, I suspected there might be more to the story than met the idea. The Giuliani camp's response is that the mayor is not entirely free to make appointments; he must appoint only from a list of candidates recommended by a selection committee. Ben Smith of the Politico, who did the original story of Rudy's judicial appointments, responds with more details here.

Update 2 (by Simon): not exactly an update, but something else to go in the mix: per Volokh, Ted Olson just got aboard Giuliani's campaign. It's kind of a situation where you're thinking "look, if Olson's getting on board, then he obviously buys what Rudy's saying, and he wouldn't get on board if he weren't sold, so it's not just a question of trusting Rudy, it's a question of trusting Ted's judgment."

Related: Rudy on Judges II

Post facto:
Federalist Society Student Symposium '08: "the people and the courts" (3/11/08)