Posted on 03/01/2007 8:24:02 AM PST by Mr. Brightside
Giuliani-Appointed Judges Tend to Lean to the Left
By: Ben Smith
February 28, 2007 06:30 PM EST
Former New York City Mayor Rudy Giuliani addresses a Hoover Institution luncheon at the Willard Hotel in Washington DC. (Patrick G. Ryan)
When Rudy Giuliani faces Republicans concerned about his support of gay rights and legal abortion, he reassures them that he is a conservative on the decisions that matter most.
"I would want judges who are strict constructionists because I am," he told South Carolina Republicans last month. "Those are the kinds of justices I would appoint -- Scalia, Alito and Roberts."
But most of Giuliani's judicial appointments during his eight years as mayor of New York were hardly in the model of Chief Justice John Roberts or Samuel Alito -- much less aggressive conservatives in the mold of Antonin Scalia.
A Politico review of the 75 judges Giuliani appointed to three of New York state's lower courts found that Democrats outnumbered Republicans by more than 8 to 1. One of his appointments was an officer of the International Association of Lesbian and Gay Judges. Another ruled that the state law banning liquor sales on Sundays was unconstitutional because it was insufficiently secular.
A third, an abortion-rights supporter, later made it to the federal bench in part because New York Sen. Charles E. Schumer, a liberal Democrat, said he liked her ideology.
Cumulatively, Giuilani's record was enough to win applause from people like Kelli Conlin, the head of NARAL Pro-Choice New York, the state's leading abortion-rights group. "They were decent, moderate people," she said.
"I don't think he was looking for someone who was particularly conservative," added Barry Kamins, a Democrat who chaired the panel of the Bar Association of the City of New York, which reviewed Giuliani's appointments. "He picked a variety from both sides of the spectrum. They were qualified, even-tempered, academically strong."
That is the kind of praise that will amount to damnation (not necessarily faint) among some of the people Giuliani will be trying to impress in Washington on Friday, when he addresses the Conservative Political Action Conference. The group is filled with social conservatives, for whom the effort to recast the ideological orientation of the federal judiciary has been a generation-long project. Giuliani already faced a high threshold of skepticism from many of these activists because of his comparatively liberal record on such hot-button issues as abortion rights, tolerance of gays and gun control.
Giuliani's judicial appointments continue to win good reviews in New York legal circles for being what conservatives sometimes say they want: competent lawyers selected with no regard to "litmus tests" on hot-button social issues. Many of these people were in the mode of Giuliani himself: tough-on-crime former prosecutors with reformist streaks and muted ideologies.
"He took it very seriously -- he spent a lot of time with these candidates," recalled Paul Curran, a Republican and former U.S. attorney who chaired Giuliani's Commission on Judicial Nominations. "He was looking for judges who were willing to enforce the laws."
The mayor of New York appoints judges to three of the state's lowest courts, the Criminal Court and Family Court, which deal with lower-grade crimes than the state's Supreme Court, the main trial court and the Civil Court, which deals in relatively small financial disputes.
When Giuliani took office in 1994, he inherited a system of judicial appointments created by one of his predecessors, Ed Koch, and designed to insulate the courts from political influence. Under the system, the mayor appoints members of an independent panel. Aspiring judges apply to the panel, which recommends three candidates for each vacancy. The mayor chooses among the three.
Giuliani, a former U.S. attorney, and top aides who remain close to him, Dennison Young and Michael Hess, reviewed the applications.
Giuliani cast himself in New York not as a conservative (he had actually run on the Liberal Party line) but as a reformer. Though at least 50 of his 75 appointees were registered Democrats (only six were registered Republicans), Giuliani also won praise for, some say, appointing fewer judges with ties to local Democratic politics than his predecessors.
"It was not people coming out of the clubhouses, which is what I'd seen earlier," said Charles Moerdler, a member of the Commission on Judicial Nominations who had served other mayors in the same capacity. "I did not support Rudy (the first time he ran) because he was too conservative for me, so I was very alert to that, but I didn't see any litmus tests on his part," he said.
Giuliani's judges serve across New York's courts, where they're more likely to encounter misdemeanant celebrities -- Boy George and Naomi Campbell have appeared recently in front of his appointees -- than they are to tangle with the Establishment Clause. Some, like a Family Court judge who ruled that an unmarried couple couldn't adopt, would please national conservatives. But many of their occasional forays into jurisprudence would likely make Scalia wince.
Charles Posner, a Brooklyn judge appointed by Giuliani, made the kind of decision that keeps conservatives up nights when he was asked to levy a fine against a shopkeeper, Abdulsam Yafee, who had illegally sold beer at 3:30 a.m. on a Sunday. In an unusual, lengthy 2004 ruling, Posner found that "there is no secular reason why beer cannot be sold on Sunday morning as opposed to any other morning."
Noting that Sunday is only the Christian Sabbath, Posner continued, "Other than this entanglement with religion, there is no rational basis for mandating Sunday as a day of rest as opposed to any other day."
Giuliani was out of office at the time of the decision and, in any case, had no say over his appointees' rulings. His spokeswoman, Maria Comella, declined to comment on the difference between the judges he appointed and those he promises to appoint.
Another Giuliani appointee reached a socially conservative verdict by a means that might not please strict constructionists. Judge Michael Sonberg denied a motion by two Bronx strip-club owners to dismiss prostitution charges against them that were based on dancers' offering "lap dances" to an undercover officer.
Sonberg ruled that the changing "cultural and sexual practices" of the previous two decades permitted him to alter the definition of prostitution.
"Statutory construction cannot remain static while entrepreneurial creativity brings forth heretofore unimagined sexual 'diversions,' " he wrote in a ruling that would have pleased social conservatives while, perhaps, alarming strict constructionists and strippers alike.
More troubling to some of the social conservatives Giuliani is courting, however, would have been Sonberg's other affiliation: When he was appointed in 1995, he was already an officer of the International Association of Lesbian and Gay Judges, a professional group. After his appointment, he became the group's president.
Laboring in the state's lower courts, few of Giuliani's other appointees show signs of ideological leanings. Two, however, were appointed to federal district courts -- one of them, Richard Berman, by President Bill Clinton. The other, Dora Irizarry, was a Bush nominee considered so liberal that Schumer pushed her nomination through.
Irizarry, appointed by Giuliani to the Bronx Criminal Court in 1996, had disclosed that she considers herself "pro-choice" during her 2002 campaign for New York state attorney general. Her appointment to the federal bench was almost derailed when the American Bar Association ruled her "not qualified" on the grounds that as a state judge, she had been "gratuitously rude and abrasive" and "flew off the handle in a rage."
But to Schumer, who led the fight against Bush's appellate judges, Irizarry was a Republican he could live with.
"Temperament is not at the top of my list," Schumer explained at the time, when asked why he supported the former Giuliani appointee. "Ideology is key."
Actually, as of 2002-present, the mayor only appoints a minority of the advisory committee (9 of 19). Do you have information indicating that, during Giuliani's day, the mayor appointed all (or even most) of the committee?
See! There is hope for you yet!
No, but I understand they serve 2 year terms and he was mayor for 8, so he had some input, even if 9 of 19. I suppose the test would be the composition of the approved pool, and how Rudy made his apointments to the panel, but it's not worth the time to me to research it.
he is actually proud of his judges overall. He wasn't looking for (R)'s he was looking for people to help him clean up the city and he did one hell of a good job.
Rudy is very smart you need to give the man some credit and put that conversation into context, Rudy was trying to get John Roberts confirmed to the Supreme Court. That makes Rudy a good guy, NOT a bad guy. IF he has to say off the ball remarks to get the goal I don't care, thats what politicians are paid to do.
Dear pogo101,
"2) to have pursued this thread/issue aggressively, BUT ONLY UNTIL someone else pointed out that NYC's mayor has relatively little say over whom (as local, not state) judges he can pick."
But that's not really true at all.
New York's mayor gets to directly appoint nearly HALF of the commission that recommends judges. These commission members are HIS POLITICAL CREATURES. If he can't get these nine folks to automatically accept any reasonable candidate he might intimate he'd like to be nominated, then he's a very poor politician.
If these commission members can't persuade one other member of the commission to go along with more candidates acceptable to the mayor, then they're incompetent, and the mayor ought to replace them.
In contrast, federally, the president doesn't get to directly anyone in the Senate. Each one of these folks, whether of his party or another party, has their own personal and political agenda. They don't directly owe their political office to the president.
Yet, federally, that's what a president must deal with.
As well, as I read it, New York's mayor can reject the candidates presented to him by the commission, and ask for other nominations.
If Mr. Giuliani had wanted other, more conservative, more Republican folks for these positions, starting with a rock-solid base of nine out 19 votes, he could have instructed his members to have done what they could, persuade, make deals, etc., to come up with a better mix of potential judges.
But that apparently wasn't important to Mr. Giuliani, to get more conservative, more Republican judges. He got the judges that he wanted.
Seeing what Mr. Giuliani did with judges while mayor, I shudder to think what he would do as president, where arguably, he'd have even less power.
sitetest
Look: I don't know that I would want to be judged by 18-year old campaign literature (most of which is never seen by the candidate), or by other people quoting me or interpreting what I said, second-hand. People have been known to change their views and/or moderate their opinions. I just want to hear the guy's unfiltered, current opinions, because after what he did for New York City before, during, and after 9/11, I think he deserves a fair hearing from conservatives. If he's not our guy, so be it.
Essentially this is a poliltical issue. As I noted before it would be interesting to see the makeup of the commission and candidate pool. Obviously he could appoint all Rs to the comission and change the makeup, but I'm sure it would have entailed a political battle. Then again, local judiciary might not have been a battle he chose to fight. The apointments to the comission would be interesting to know.
I stand corrected. You absolutely right.
Can you believe the number of conservative or allegedly conservatives considering supporting Giuliani? It's hard to believe there is much hope for conservatism making any gains when so there are so many dumb and deluded conservatives wanting to believe a liberal Republican will advance their cause.
Dear SJackson,
"Obviously he could appoint all Rs to the comission and change the makeup, but I'm sure it would have entailed a political battle."
That's fine. I understand.
But it's Mr. Giuliani who has proudly pointed to his record of judicial appointments, and from my perspective, it seems that he was either quite happy with what he got (ugh!) or he didn't want to fight to get folks he really wanted.
I have no basis to believe he would act differently as president. In that Mr. Giuliani is quite liberal on any number of issues, and believes things about the Constitution that most conservatives don't, it seems to me that he would likely rather nominate someone like Mrs. Ginsburg, and get very little fight about it, as opposed to nominating someone like Mr. Roberts, and having to fight about it.
His prior record shows that the former course is more likely, regardless of what he's telling us now.
sitetest
And the important thing to remember is that the burden of proof is on the Giuliani campaign and his supporters to demonstrate that Giuliani's record of nominating judges is consistant with his (hollow) CampaignSpeak(tm) statements providing (fake) assurances that he'll nominate the kind of judges that the conservative base of the Republican party demands.
GOOD! IF we could get Roe overturned maybe we could actually get back to what he wants, "States Rights"
You're right. I admit I might not be overly concerned about municipal judgeship apointments. If he appointed competent jurists, particulary tough on crime, I don't think party matters much at that level.
But as you point out, he brought it up so he has the obligation to demonstrate the relevancy. Same standard a Kerry and his "reporting for duty" stunt.
Dear SJackson,
"I admit I might not be overly concerned about municipal judgeship apointments."
Strictly in their own context, I'm not overwhelmed with concern, either.
However, I'll say this. As I get older, I get less tolerant about electing/appointing/nominating/otherwise placing the "wrong" folks to any level of office at all.
Here's why: folks gotta start somewhere.
So, my senior US Senator is Barbara Mikulski (YIKES!!). She got her start on the Baltimore City Council, back when the voters of Baltimore weren't quite as nutty liberal as they are today. Even today, Baltimore still has a significant Catholic minority. Mrs. Pelosi wasn't the exception for Baltimore City. A lot of voters back then were Democrats, but weren't pro-abort. That's still the case even today, but even more so a few decades ago.
But Ms. Mikulski was pro-abort. Always was. Always will be. This concerned a lot of Catholic Democrats.
But what difference did it make, folks would say. She's sitting on the City Council! But then, she got elected to higher office - the US House, and then to the US Senate.
Now she gets to vote on judicial nominees for the entire United States, including for the Supreme Court.
If folks had taken those "irrelevant" but highly-negative political stances of hers more seriously back in the days when she was running for City Council, maybe she wouldn't be in the US Senate now.
The thing is - the Dems know this. That's why NARAL will oppose a pro-lifer running for dog catcher. It seems obsessive.
But it works.
Unfortunately, we're not as clever or ruthless.
sitetest
I see. Previously you said the mayor appoints the members; now you appear to be asserting that the fact that it's only 9 of 19 doesn't change anything, or that the difference between the two scenarios, which I find rather significant, is insignificant to you. Just getting a handle on your analysis.
You are being disingenuous. The members of the Mayor's Advisory Committee are not selected by the Mayor. They are nominated by the political bosses at the local level in the various election districts that dot NYC. (My recollection is that there is a person on the Advisory Committee from each State Assembly District in NYC.) Yes, Rudy could have rejected every judicial nominee from the Democratic Party, but then there is REALITY. The Advisory Committee would have simply nominated another Democrat if only because NYC is something like 9 to 1 Dems to Pubs. In the mean time, the judical seat would have remained empty while the bosses play politics, which would have resulted in an even larger backlog of cases in the largest criminal and family court system in the Country.
Also, at this level of justice, judicial philosphy is irrelevant because these judges are not deciding cases that involve deep Constitutional questions or the interpretation of complicated statutes and regulations. Their primary job is to keep the system moving and that means criminal arraignments, bail hearings, plea bargains, orders of protection, and on rare occassions, listening to testimony and making evidentary determinations. No one with even slightest knowlege of the NYC justice system even cares whether a judge at this level is the next Antonio Scalia or the reincarnation of William O. Douglas because these judges don't have the time or power to make that kind of a difference.
It's my understanding he appoints some members, another poster stated 9 or 19, it could be 8 or could be all, for two year terms.
They're not two different scenarios, they're two different actions.
On the one hand I don't consider the political party of municipal apointments particularly important if they're tough on crime. But Rudy brought the topic up, so it's relevant. Hopefully someone will post his nominations to the commission. 8 years as mayor, 2 year terms, even if he gets 9 slots that's several dozen apointments.
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