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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  November 28, 2007
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Topic category:  Other/General

Mitt Romney, Yes; Rudy and Others, No

"'The Boss,' as his aides call him, inspired extraordinary loyalty and repaid it. He elevated a streetwise N.Y.P.D. detective named Bernard Kerik through the ranks of city government eventually making him corrections commissioner and then police commissioner. Kerik...compares entering Giuliani's inner circle to becoming 'a made man in a Mafia family'....Kerik says [of Rudy], 'He's not supposed to have a heart. He's an animal, he's obnoxious, he's arrogant. But you know what? He gets it done.

The latest Zogby poll shows both Mitt Romney and Rudy Giuliani leading Hillary Clinton, 43 to 40, so Rudy's notion that only he can beat Hillary appears to be wishful thinking, at best; values voters need not feel tempted to choose Rudy, reluctantly, as the only viable Republican presidential candidate and a significantly lesser evil than Hillary; and therefore Rudy's recent attack on Mitt for appointing a judge who made a bad decision was a very bad Rudy.

The record shows that Rudy not only chose to support abortion when New York's Liberal Party had him choose between being pro-life and supporting capital punishment, ran New York City as a "sanctuary city" and lived an immoral life, but also made a horrendous recommendation of Bernard Kerik, who considered himself one of Rudy's "made men," for the critically important position of Secretary of Homeland Security and then shamelessly pretended that Mitt is another Michael Dukasis.

Hugh Hewitt's recent interview of Mitt covered Rudy's attack on Mitt and exposed it as foolhardy and Rudy as the one whose judgment was fundamentally flawed:

HH: Okay, this judge issue, Mitt Romney, is it going to plague you in New Hampshire, is it going to hurt you in Iowa?

MR: You know, thereíll be an attempt by some to suggest that all of the judges that someone appoints or votes for are somehow, that their decisions are somehow your responsibility. I just donít think thatís the case. If you select somebody who is a known liberal, and they do liberal things, why, thatís maybe a different matter. But you have people in the United States Senate that voted for Ruth Bader Ginsberg that would certainly not want to be responsible for all of her decisions. And I donít think it rises to that kind of level. And frankly, it was Mayor Giuliani who tried to do that. And of all the people who might have raised a question of judgment on selecting someone, Mayor Giuliani was not the one to do it, given the fact that he nominated someone to be the secretary of Homeland Security, who he knew was under investigation, and who has since pled guilty to crimes, and is under federal indictment on sixteen other potential crimes.

HH: Should the Bernie KerikÖor when Rudy urged Bernie Kerik on President Bush, should that a be a concern about his judgment for other people? And will that raise a question about whether or not youíll get Soutered if [you] canít pick judges in Massachusetts?

MR: You know, I didnít make any comment about Bernie Kerikís connection to Rudy Giuliani. I made no comment about Rudy Giulianiís judgment in that regard. But when he came out and attacked me for a decision of a judge, that was a very different setting, and I responded that he was the last person I would have expected to make that kind of a statement. And I agree with Senator McCain on this, that it showed very bad judgment on Mayor Giulianiís part to have somebody who had been implicated for political corruption being recommended to the President of the United States as the Secretary of Homeland Security.

Ironically, perhaps the best evidence of how close Rudy and Bernie were is contained in Times's 2001 Person of the Year issue honoring Rudy. The cover shows Rudy standing atop a building in Manhattan, next to his name and the words "TOWER OF STRENGTH."

Inside, the article about Rudy quoted the then generally respected Bernie Kerik comparing Rudy's "inner circle" to "a Mafia family." (Earlier, the article had described Rudy as "[a] child of Brooklyn who was raised in a family of fire fighters, cops and criminals--five uncles in the uniformed services, an ex-con father and a mob-connected uncle who ran a loan-sharking operation.")

Time article: "'The Boss,' as his aides call him, inspired extraordinary loyalty and repaid it. He elevated a streetwise N.Y.P.D. detective named Bernard Kerik through the ranks of city government eventually making him corrections commissioner and then police commissioner. Kerik...compares entering Giuliani's inner circle to becoming 'a made man in a Mafia family'....Kerik says [of Rudy], 'He's not supposed to have a heart. He's an animal, he's obnoxious, he's arrogant. But you know what? He gets it done."

Should the Presidency of the United States be entrusted to an obnoxious, arrogant "animal" who tried to make his "made man" the Secretary of Homeland Security and pretends that a governor who appoints a judge automatically is responsible for every bad judgment the judge thereafter makes?

Definitely not!

As Alexander Hamilton explained in The Federalist No. 78, an independent judiciary is critical and "nothing can contribute so much to [the judiciary's] firmness and independence, as permanency in office" and "this quality may therefore me justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security."

A judicial appointment should be held against a person who makes the appointment only if the person appointed was known to be unqualified, or should have been known to be unqualified, when appointed.

Those like Rudy who would blame Mitt for a judge's decision after he appointed the judge need to show that he supported that decision or should have foreseen that the judge would make it in order to have a reasonable basis for the criticism.

Mitt criticized the decision and called upon the judge to resign. That's not supporting the decision.

As for foreseeability, where's the evidence that Mitt should have foreseen the judge's decision?

Rudy hasn't provided any.

This is not Willie Horton Two.

Wikipedia: "William R. Horton... is a convicted felon who was the subject of a Massachusetts weekend furlough program that released him while serving a life sentence for murder, without the possibility of parole, providing him the opportunity to commit armed robbery and rape. A political advertisement during the 1988 U.S. Presidential race was critical of the Democratic nominee and Massachusetts Governor Michael Dukasis for his former support of the program."

The well deserved criticism of Mr. Dukasis was based on his support of the parole program for convicted murderers, not his appointment of a judge or any other public official. Mr. Dukasis had supported the furlough program as a suitable method of criminal rehabilitation.

Wikipedia: "The State inmate furlough program was actually signed into law by Republican Governor Francis W. Sargent in 1972. After the Massachusetts Supreme Court ruled that this right extended to first-degree murderers, the Massachusetts legislature quickly passed a bill prohibiting furloughs for such inmates. However, in 1976, Governor Dukakis vetoed this bill. The program remained in effect through the intervening term of governor Edward J. King and was abolished during Dukakis's final term of office on April 28, 1988. This abolition only occurred after the Lawrence Eagle Tribune had run 175 stories about the furlough program and won a Pulitizer Prize. Dukakis continued to argue that the program was 99% effective; yet, as the Lawrence Eagle Tribune pointed out, no state outside of Massachusetts, nor any federal program, would grant a furlough to a prisoner serving life without parole, as Horton was."

Mr. Dukasis was rightly blamed for a foreseeable consequence of his deliberate decision to support furlough for a prisoner serving life without parole, definitely demonstrated by his veto.

Mitt did not have a role in the judge's decision beyond appointing him and all who believe in an independent judiciary would not want him to have had one.

As Hamilton said in The Federalist No. 78, "the courts of justice are to be considered as the bulwarks of a limited constitution" and "independent spirit in the judges...must be essential to the faithful performance of so arduous a duty."

Mitt, yes. Rudy, no.

Mitt, yes. Fred Thompson, no. Fred opposes a constitutional amendment to protect the unborn.) Pro-Life News Report 11/27/07 #4177: "A leading advisor for Republican presidential candidate Mitt Romney...said the former Massachusetts governor's position on abortion is more consistent than fellow GOP contender Fred Thompson's. Jim Bopp, a top pro-life attorney, said Romney backs a human life amendment. Bopp responded to some pro-life advocates who are wondering if Romney is being inconsistent by saying he supports the amendment but also supports overturning Roe. 'He wants Roe v. Wade overturned so that states will be able to protect innocent human life and when there is a sufficient consensus for a human life amendment then he wants to see a human life amendment,' Bopp told CBN News correspondent David Brody. But, Bopp says the difference between the two candidates is that Romney supports an amendment eventually while Thompson has said he doesn't back one. 'The difference between Thompson and Romney is that Thompson said that he opposes a human life amendment period,' Bopp said."

Mitt, yes. Mike Huckabee, no. Mike's little known tolerance of illegal immigration is a disqualifier.

Mitt, yes. John McCain, no. John's well known tolerance of illegal immigration is a disqualifier.

Michael J. Gaynor

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Biography - Michael J. Gaynor

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,,, and 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.

Gaynor's email address is

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