I'm very, very passionate about abortion and the whole issue of abortion. But it leads me to a conclusion that may be different than some, the same as others, which is I oppose it. That's a principle I've held forever, and I'll hold it forever. That's not going to change.Wallace is a softball interviewer. He does not push Giuliani with what is a crucial question here. This is what I would have asked: But can't Congress regulate abortion? The Supreme Court just upheld a federal statute limiting abortion. If there can be federal statutes, without federal abortion rights, we could end up with a federal ban on abortions, a federal murder statute. How can you assure us that the states would make the decision?
But I also believe that in a society like ours, where people have very, very different consciences about this, it's best for us to respect each other's differences and allow for choice.
So with regard to Roe against Wade, since I'm seeking the presidency of the United States and my view is that there shouldn't be a litmus test on Roe against Wade, it seems to me the best position to take is I don't want a litmus test for judges.
We didn't want Justice Roberts or Justice Alito to answer that question. They both answered that question they would consider it, they would look at it.
I'm going to select strict constructionist judges. They're free to take a look at Roe against Wade, take a look at the limitations. But I believe I should leave it to them to decide that.
WALLACE: But just to revise your answer last week, then, you personally, supporting choice, would not feel it's OK if the Supreme Court...
GIULIANI: What I meant to convey — if I didn't convey it correctly, I'll convey it again. The country could handle it. I mean, the country — we've got a federal system. What would happen is states would make decisions.
We're already doing that with the Hyde amendment. Federal funds for abortion are limited. States make their own decisions.
Here's what Wallace actually asked at this point: "But would you personally be disappointed?" What's that, the old "how does it make you feel" question? What difference does it make if he's "personally ... disappointed"? We're not electing a National Oprah to feel for us.
Giuliani, to his credit, essentially tells Wallace that's a lame question:
I don't think it's a question of being disappointed or being happy about it. I think it's a question of not wanting to make this a litmus test for judges, so that a judge feels free to listen to the facts, listen to the arguments, and come to the decision they think is the correct interpretation of the Constitution.This is the right way to answer the bad question. The key abortion-related job for the President is nominating Supreme Court justices, and he should give us confidence that he will select individuals who deserve and can be trusted with the vast power they will have in their hands.
Some strict constructionist judges are going to decide it was wrongly decided. Other strict constructionist judges may give more weight to the precedential value of it, the fact that it's been the law for this length of time.
And if you read Justice Kennedy's opinion for the court in the partial birth abortion ban, you can see the tension there between these two things. And I think the court should be allowed to decide this.
But again, I would want to say: Yes, about that partial birth abortion ban -- it is a federal statute, applicable in all the states, now, is it? How does that jibe with your enthusiasm for our federal system? And to make it interesting: Will you choose the kind of Supreme Court justices who, like Clarence Thomas, would find significant constitutional limitations on Congress's power? Do you think the Constitution reserves legislative power to the states on the subject of abortion? If Roe were overruled, would you veto any bill that intrudes on this power, whether it limits abortion or grants abortion rights?
Wallace allows Giuliani to go on generically about how one ought to want good judges and not use a "litmus test" about abortion.
I would consider the following about a judge. Are they someone who interprets the Constitution rather than legislates? Are they someone who seeks the meaning of the words of the Constitution?This is safe territory for Giuliani. Pointing to Laurence Silberman's opinion -- which you can read about here -- was a nice touch, a nice way to convey the sense that what you want from a court is pure quality and competence that will allow it operate independently from personal or political opinion.
A decision like Judge Silberman's decision in the D.C. Circuit is the kind of decision I'd point to where he found a constitutional right to bear arms, went way, way back to the framers, to the Federalist Papers, tried to figure out what did they mean when they put those words in the Constitution that the people have a right to bear arms.
That's the kind of judge I would want. I might not agree on every decision they make, but that's the kind of judge I would appoint.