Think about it carefully: it doesn't make sense to expect a man who favors abortion and sees stare decisis as a straightjacket to appoint justices who will overrule Roe v. Wade and other rotten fruit of judicial activism.
Predictably, much of the media reported with relish that Mitt Romney had made a big mistake by saying he would consult attorneys as to the scope of presidential authority, which is a safeguard that should be applauded, and ignored the great blunder by Rudy Giuliani: admitting that he really puts the legal doctrine known as stare decisis (essentially, fidelity to precedent) ahead of fidelity to the Constitution itself.
Reality: Mr. Romney simply said he would do what prior presidents have done--consult their attorneys--which is sensible and not otherwise remarkable, while Mr. Giuliani outed himself as a stare decisis slave who considers the victories of judicial activists unassailable.
Mr. Giuliani's problem: Mr. Giuliani has been trying very hard to win the Republican presidential nomination by assuring Republicans that even though he believes abortion should be a constitutional right, he will appoint justices like Antonin Scalia, who knows that abortion is a court-created constitutional right and is ready to overturn that egregious exercise in judicial activism when the opportunity presents itself.
Think about it carefully: it doesn't make sense to expect a man who favors abortion and sees stare decisis as a straightjacket to appoint justices who will overrule Roe v. Wade and other rotten fruit of judicial activism.
Trusting Mr. Giuliani to do that would be foolish. As to whether Mr. Giuliani can be trusted, just ask his first two wives and his two children.
Mr. Giuliani's idea of a strict constructionist is a slave to the judicial doctrine of stare decisis.
Challenged by Mr. Romney for filing a suit challenging the Line Item Veto Act, Mr. Giuliani could have simply said he had challenged because it was his duty as Mayor of New York and added that as President he would have a duty to the whole country instead of just New York City.
Instead, Mr. Giuliani said:
"You have to be honest people. And you can’t fool all of the people all of the time. The line item veto is unconstitutional. You don’t get to believe about it; the Supreme Court has ruled on it.
"So you can bang your head up against the stone wall all you want. I am in favor of a line item veto, except you have to do it legally. And as the mayor of New York, if I had let President Clinton take $250 million away from the people of my city illegally and unconstitutionally, I wouldn’t have been much of a mayor."
Truth be told, Mr. Giuliani was better than his predecessor, Democrat David Dinkins, but the bar was awfully low, and the City of New York won the case against President Clinton, but Justice Scalia correctly concluded that the Line Item Veto Act WAS constitutional.
Justice Scalia, with whom Justice O’Connor joined, and with whom Justice Breyer joined as to this point:
"....unlike the Court I find the President’s cancellation of spending items to be entirely in accord with the Constitution.
"The short of the matter is this: Had the Line Item Veto Act authorized the President to 'decline to spend' any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead–authorizing the President to 'cancel' an item of spending–is technically different. But the technical difference does not relate to the technicalities of the Presentment Clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The President’s action it authorizes in fact is not a line-item veto and thus does not offend Art. I, §7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union."
Justice Scalia was right.
Mitt Romney was right.
Mr. Giuliani really told social conservatives that he's not about to "bang [his] head up against the stone wall" he considers (wrongly) stare decisis to be, whether the line item veto or the right to life is at stake.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.
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