So what's Rudy's position on Roe again?

The blogometer had a section yesterday suggesting that "conservatives [are] grow[ing] tired of equivocations and [are] start[ing] to demand more a definitive defense of their beliefs from Rudy." In particular, there is suspicion of Guiliani's federalism defenses of issues where he disagrees with conservatives.

Some people have suggested that Giuliani's position on abortion is incoherent, because he has -- or so I'd thought, as I'll talk about below -- bolted on to the "personally pro-life politically pro-choice" position the tantalizing promise that he's also anti-Roe. That can surely only seem incoherent to someone who believes Roe is the only thing keeping abortion legal, but anyone who understands that overruling Roe will not criminalize abortion, and will merely make it possible for such laws to exist, subject to the normal democratic process (this is another reason why I think reliance interests don't attach to Roe-Casey for purposes of stare decisis, by the way), Giuliani's position makes a lot more sense. To put it another way, just because I believe that the Constitution doesn't decide the abortion issue, and leaves the issue to the states and their ballot boxes, that position says only that government has the power to make a certain law, a very different matter from saying that government should therefore use that power. If Guiliani shares my view on whether states have that power, as long as he's running for President not Governor of Indiana, I don't mind that he disagrees with me over whether they should use it.

(It's also worth noting that for me, federalism isn't a dodge: I would want to hear the same things about federalism from people who agree with me on issues like abortion. And so I've been pleased by what I had understood to be the federalism line I've heard from Giuliani, to the point that I've defended him against attacks on that front.)

Nevertheless, in view of the posts linked by the blogometer, I'd add that Ann Althouse was on Brian Lehrer's NYC radio show yesterday morning, talking specifically about Guiliani and abortion (recall that she's previously written an NYT op/ed on the subject, too); you can listen to her comments (the section's about thirty minutes, and if I don't transcribe it, that encourages you to listen to it alll, no?) in a neat media player in her post (eagle-eyes readers will also spot that I'm borrowing the payload of this post from my comment there).

Concededly, Ann is no more a neutral, disinterested voice in this than am I, but she sees Guiliani's position as being rather different to how I've perceived it. I had understood Giuliani's position to be that while he is in favor of legal abortion - as a state legislator he would vote against a law banning abortion, as President he would veto such a law - but that he doesn't necessarily agree that Roe was correctly decided. I took his remarks on the subject to be say that abortion was a right, not that it was a right protected by the Constitution of the United States. That is, while he would resist laws banning abortion, he would appoint judges who would make it a relevant question whether he'd resist such laws, because overruling the cases in which the court has constitutionalized a right to abortion would make it possible for such laws to exist (subject to federalism constraints). On that understanding, notwithstanding our differences on the issue, I can and would support Giuliani. But if what I understood to be Ann's characterization of Guiliani's position is correct, if I shared what I think is her assesment that he'd appoint judges who would uphold Roe, then I think Brian Lehrer's rejoinder to her is correct, the complexity basically disappears from Guiliani's position, and there'd be no way I could support him. Or at least, the relevant complexity; he may still have more nuanced views on abortion than, say, Nan Aron, but that's of no use to Republican primary voters.

The inescapable fact of the matter, as I see it, is that the issues of abortion and Roe (and contrary to the views of many, those are emphatically not the same issues, although the former is presently submerged in the latter) are going to haunt every presidential election until Roe and Casey are overturned; while on many levels I agree with Ann's observation that abortion really shouldn't be major player in presidential races (I don't believe abortion's an issue generally within the scope of federal power, although Ann doesn't agree with that; we disagree on this) as long as abortion is an issue in the Supreme Court's hands, it's going to be a major concern whose hands those are going to be. Abortion isn't an issue that going to go away - the choice is whether it's going to be a major player in Presidential elections or state gubernatorial and legislative elections. While Roe and Casey are still considered good law, it'll be the former; once they're overturned, it'll be the latter. And for that matter, quite aside from the dictates of constitutional law, surely even on a normative level, it's obvious that forcing states to discuss the issue and hash out compromises is far more likely to dial down the heat on this issue than is mandating an absolutist position from One First Street Northeast.

In the last analysis, I want to support Rudy, I had done previously, but if Ann's assesment is right (and if I understood her right), that's looking tenuous. It's one thing to say he'd appoint judges and justices in the mold of Scalia rather than Thomas (that is, who have a more expansive view of precedent, since as Ann points out, we aren't approaching these cases as a matter of first impression), but quite another to say that he'd appoint judges and justices who would uphold Roe.

Now, I've got to drive over to Indianapolis. Back later.

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