Ted Olson On Rudy And Judges
Over at National Review Online today, Ted Olson penns a beautiful piece on judges, and the role that the Congress and the president play in their selection to the federal bench. Granted, the beginning of it is nearly elementary -- knowledge that is already guaranteed by anyone with a brain. But the end is where it gets interesting:
That is one very important reason why this conservative Republican is supporting Rudy Giuliani for president. I know the qualities he will look for in the persons he will appoint to the Supreme Court and the lower federal courts: Individuals of talent, quality, experience, integrity, intellect and conscious of constitutional limits on judicial authority; men and women who will respect and defer to the wisdom of the framers of the Constitution and the rights of the citizens to make policy through their elected representatives. Jurists in the mold of Justices Scalia, Thomas and Alito and Chief Justices Rehnquist and Roberts.
I know this because I have known Rudy Giuliani for 25 years. We first met when we served together in the Justice Department in the early years of the Reagan administration, where Chief Justice Roberts and Justice Alito were young lawyers honing their conservative legal instincts, and where jurists such as Bork, Scalia, and Thomas were first being considered for judicial positions. We have been close friends and colleagues ever since.
Rudy holds our judiciary and the judges who serve our nation, in the highest esteem. Our courts are the envy of the world — independent, honest, and fair. They make tough, often controversial, decisions every day, and they must be respected and supported. At the same time, Rudy knows that grave damage may be done to our democratic institutions and principles by judges who exceed their authority and take decisions away from the political branches of government, the people, and the political process. Except where clearly limited by the Constitution, policy judgments must be debated and decided by citizens and the individuals they elect. Judges who reach out to decide things because they believe they know better or because they believe Congress is not doing its job are taking from the people their right to govern themselves, even if popular sentiment or congressional actions may occasionally be misguided.
As Justice Scalia said in a dissent from a decision holding single-sex colleges unconstitutional, “[t]he virtue of a democratic system . . . is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution [by judges] . . . . [O]ur ancestors left us free to change. That cannot be said” of judges who inscribe their own preferences “into our most basic law.”
Our next president will appoint at least one, perhaps as many as three, justices, and countless other federal judges. More than nearly any other consideration, the person we elect must be committed to finding and appointing the very best judges.
Rudy Giuliani, I am certain, will strengthen our judiciary and respect and preserve its independence by appointing judges who will equally respect the role of the judiciary and the limits on its authority.
Why do I bring this up? This past Thursday, I graduated from ASU with my BA, and this fall I will be heading right back to ASU to pursue a law degree. Readers of this site know that Thomas and I hold the law in high regard. We may not always like how the law is interpreted; indeed, Mr. Olson is correct about the controversial nature of the law, or at least in its interpreters.
Both of us have been roundly chastised by conservatives for many "pet, social" issues of the base such as abortion and gun control. Rudy is facing similar bare-knuckle brawls now. But to set the record straight, he has stated that Roe is bad law and that he does not like it. Were it overturned and the issue handed back to the states -- where it belongs, mind you -- he has said he would be happy with the decision. The same goes for gun control. As Mayor, he was obliged to follow the laws and use the laws to the best of his ability. He did not make up the laws.
But, detractors point to his choices for judges when he was mayor, and click their tongues. "The majority of those judges were liberal," they say. Perhaps, but choosing a Supreme Court justice is much different. They are not simply upholding one set of laws, but several sets. They are testing the Constitutionality of state and federal laws to determine whether or not they should stand. Considering the fact that Mr. Olson is Rudy's chief advisor on judicial matters, it stands to reason that Rudy would make the right choice for a jurist on the federal bench.
Is there a chance that we could end up with another O'Connor or Kennedy? Even worse, possibly another Souter? Of course there is. The same could be said of Thomas or myself if we were president. You can do all the background work on a potential nominee, and nine times out of ten, you will get it right. (I would like to note that both of President Bush's Supreme Court choices are doing just fine, as was expected, in their first full term together.)
President Reagan chose Sandra Day O'Connor, who went through a judicial evolution that took her from being center-right to center-leaning-left. Antonin Scalia has been a model of judicial restraint, and as close to a Constitutionalist as the court had seen in years. Justice Thomas, much like Justice Scalia, has similar textual views of the Constitution, and has also been a bright spot on the court. Souter, the "stealth" candidate was a put up: A political favor from President George H.W. Bush to his friend and chief of staff, John Sununu. Then-President Bush had no clue what Souter would be like. (It should also be noted here that a lone dissenter against Souter was Michael Luttig, an accomplished jurist, but the head-banging going on behind the scenes is likely why Judge Luttig was not nominated to either of the two USSC vacancies in 2005.)
Thomas and I trust those around Rudy to keep his perspective on the judiciary in check, so to speak. He is a former prosecutor out of the Reagan Justice department, and has a decent grasp of Constitutional jurisprudence. Alas, there are some who disagree, and that is fine. They may take more convincing than others. But we trust Ted Olson's opinion that Rudy would appoint the right sort of jurists to the bench. Those would be the ones that obey and interpret the Constitution, not make up the law out of thin air, or refer to foreign law for relevance or merit (as Justice Breyer is heavily in favor of).
Marcie
That is one very important reason why this conservative Republican is supporting Rudy Giuliani for president. I know the qualities he will look for in the persons he will appoint to the Supreme Court and the lower federal courts: Individuals of talent, quality, experience, integrity, intellect and conscious of constitutional limits on judicial authority; men and women who will respect and defer to the wisdom of the framers of the Constitution and the rights of the citizens to make policy through their elected representatives. Jurists in the mold of Justices Scalia, Thomas and Alito and Chief Justices Rehnquist and Roberts.
I know this because I have known Rudy Giuliani for 25 years. We first met when we served together in the Justice Department in the early years of the Reagan administration, where Chief Justice Roberts and Justice Alito were young lawyers honing their conservative legal instincts, and where jurists such as Bork, Scalia, and Thomas were first being considered for judicial positions. We have been close friends and colleagues ever since.
Rudy holds our judiciary and the judges who serve our nation, in the highest esteem. Our courts are the envy of the world — independent, honest, and fair. They make tough, often controversial, decisions every day, and they must be respected and supported. At the same time, Rudy knows that grave damage may be done to our democratic institutions and principles by judges who exceed their authority and take decisions away from the political branches of government, the people, and the political process. Except where clearly limited by the Constitution, policy judgments must be debated and decided by citizens and the individuals they elect. Judges who reach out to decide things because they believe they know better or because they believe Congress is not doing its job are taking from the people their right to govern themselves, even if popular sentiment or congressional actions may occasionally be misguided.
As Justice Scalia said in a dissent from a decision holding single-sex colleges unconstitutional, “[t]he virtue of a democratic system . . . is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution [by judges] . . . . [O]ur ancestors left us free to change. That cannot be said” of judges who inscribe their own preferences “into our most basic law.”
Our next president will appoint at least one, perhaps as many as three, justices, and countless other federal judges. More than nearly any other consideration, the person we elect must be committed to finding and appointing the very best judges.
Rudy Giuliani, I am certain, will strengthen our judiciary and respect and preserve its independence by appointing judges who will equally respect the role of the judiciary and the limits on its authority.
Why do I bring this up? This past Thursday, I graduated from ASU with my BA, and this fall I will be heading right back to ASU to pursue a law degree. Readers of this site know that Thomas and I hold the law in high regard. We may not always like how the law is interpreted; indeed, Mr. Olson is correct about the controversial nature of the law, or at least in its interpreters.
Both of us have been roundly chastised by conservatives for many "pet, social" issues of the base such as abortion and gun control. Rudy is facing similar bare-knuckle brawls now. But to set the record straight, he has stated that Roe is bad law and that he does not like it. Were it overturned and the issue handed back to the states -- where it belongs, mind you -- he has said he would be happy with the decision. The same goes for gun control. As Mayor, he was obliged to follow the laws and use the laws to the best of his ability. He did not make up the laws.
But, detractors point to his choices for judges when he was mayor, and click their tongues. "The majority of those judges were liberal," they say. Perhaps, but choosing a Supreme Court justice is much different. They are not simply upholding one set of laws, but several sets. They are testing the Constitutionality of state and federal laws to determine whether or not they should stand. Considering the fact that Mr. Olson is Rudy's chief advisor on judicial matters, it stands to reason that Rudy would make the right choice for a jurist on the federal bench.
Is there a chance that we could end up with another O'Connor or Kennedy? Even worse, possibly another Souter? Of course there is. The same could be said of Thomas or myself if we were president. You can do all the background work on a potential nominee, and nine times out of ten, you will get it right. (I would like to note that both of President Bush's Supreme Court choices are doing just fine, as was expected, in their first full term together.)
President Reagan chose Sandra Day O'Connor, who went through a judicial evolution that took her from being center-right to center-leaning-left. Antonin Scalia has been a model of judicial restraint, and as close to a Constitutionalist as the court had seen in years. Justice Thomas, much like Justice Scalia, has similar textual views of the Constitution, and has also been a bright spot on the court. Souter, the "stealth" candidate was a put up: A political favor from President George H.W. Bush to his friend and chief of staff, John Sununu. Then-President Bush had no clue what Souter would be like. (It should also be noted here that a lone dissenter against Souter was Michael Luttig, an accomplished jurist, but the head-banging going on behind the scenes is likely why Judge Luttig was not nominated to either of the two USSC vacancies in 2005.)
Thomas and I trust those around Rudy to keep his perspective on the judiciary in check, so to speak. He is a former prosecutor out of the Reagan Justice department, and has a decent grasp of Constitutional jurisprudence. Alas, there are some who disagree, and that is fine. They may take more convincing than others. But we trust Ted Olson's opinion that Rudy would appoint the right sort of jurists to the bench. Those would be the ones that obey and interpret the Constitution, not make up the law out of thin air, or refer to foreign law for relevance or merit (as Justice Breyer is heavily in favor of).
Marcie
posted by Syd And Vaughn | 12:33 PM
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