One judge approved by Giuliani, Rosalyn Richter, had been executive director of a gay rights organization, Lambda Legal Defense and Education Fund, before being named to the bench. After her initial appointment by former Mayor David N. Dinkins, Richter changed the questions asked of potential jurors to be more welcoming to gay and lesbian couples. She was later reappointed by Giuliani.One answer from the Giuliani side is that NYC municipal judges don't do any significant constitutional interpretation. Since they only handle family matters, criminal misdemeanors, and small civil claims, their approach to constitutional law didn't matter.
The problem with that answer is really what is a problem with the "strict constructionist" rhetoric in the first place. I wrote about that last month in a NYT column, where I was somewhat sympathetic to Giuliani's attempt to speak in terms of appointing "strict constructionists," but ended with the crucial concession:
[T]hat doesn't mean we should be naïve. The next president will select real individuals to be judges, and no matter how diligent they are, they will bring something of their humanity to their interpretation of the law, a version of humanity that will express something of the president's cast of mind.Presidents will all -- one hopes -- pick scrupulous, excellent individuals to be judges, but they won't pick the same individuals. Even within the category of those who can be portrayed as "strict constructionists" -- they all claim to follow the law! -- judges lean in different directions.
In this light, it doesn't matter that Giuliani's municipal judges did no constitutional interpretation. Giuliani is not a social conservative, and we shouldn't expect whatever "strict constructionists" he nominates to channel the values of social conservatism. By the same token, we shouldn't fall for it when socially conservative presidential candidates use the term "strict constructionists" to cloak their agenda. They aren't just looking for judicial excellence, they are trying to infuse the courts with their values.
If a President has the appointment power and names extremely well-credentialed persons like John Roberts, Samuel Alito, Ruth Bader Ginsburg, and Stephen Breyer, they will be confirmed, despite the entirely appropriate suspicions that the President is trying to make the Court conservative or liberal. If you don't like it when that happens, my answer will be: Tough, we elected a President.