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."
ROTFLOL! No doubt, they're prolly "conservative" for New York - I guess Rudy's experienced what some Republicans are saying, "You gotta pick the lesser among evils" and expects America to share the joy.
My God, folks just want to attack Guliani... did you not watch him clean up New York? For crying out loud, this guy too a city that was decaying from within from decades of liberal destruction and brought it back huge. He took on the teachers unions, he took on the welfare state and machinery, be took a city with a population greater than many states and turned it around... and he did it by instantiating policies from a conservative world view.
Yes, no one is going to confuse Rudy with Regan, but this stupid claims that Rudy isn't a conservative are utterly rediculous.
Yes he may not be as conservative on social issues as some folks like, but to say this mans world view isn't conservative, or that his policies were not based on that world view are just idiotic and ignorant.
Well, Mayor Bloomberg is a "Republican" in name, sort of. Anywhere else, he would be a Democrat, as he was for most of his life, before he decided to run for mayor. There are also two Republican City Council members in Staten Island, and one in Queens. So you are correct. I ought to have said "few" elected Republicans. My point stands, though. NYC is a profoundly Democratic area, and it is difficult for an elected Republican to promote anything like a conservative agenda there.
well said. sometimes it takes a slightly different approach under different circumstances. Improvise Adapt Overcome
You could say the exact same thing about Rudy Giuliani. Even while he was a sitting Republican mayor, he endorsed Democrats such as Cuomo and others.
I'm shocked that you posted this even though it's been posted before. :)
It is crazy to say Rudy had no one to choose from - what stupid spin. Of course he did, and he chose Democrats because they better reflected his own views.
Here is another writher that apparently fails to understand that the definition of "tolerance" is not "advocacy"
But to Schumer, who led the fight against Bush's appellate judges, Irizarry was a Republican he could live with.
Back in the pre-clintonian days, the democrats always insisted that the ABA ratings were the gold standard. But when Bush appoints a conservative or constructionist judge rated "highly qualified" it doesn't matter. However, if he happens to nominate an awful clown like Irizarry (I don't understand why he nominated her in the first place) that the ABA has rated "NOT QUALIFIED", Schumer pushes her nomination through in spite of it. The democrats are a foul, wretched bunch of LIARS and hypocrites.
And that's a good thing according to you? That the DUmmies are "mind-numbed robots" who would vote for the devil himself as long as he had a (D) after his name? And you would wish the same of conservatives that they become unthinking morons and vote for any (R) that the elite push?
Yeah. Where is this massive pool of Freeper-grade conservative New York City lawyers who were ready, willing, would have begged, pleaded, done just about anything to be judges, but Rudy wouldn't appoint them?
I think the people who are pushing this story believe we're all actually stupid.
Rudy appointed judges who were tough-on-crime, whether they were Democrats or Republicans. And don't forget thet judges have to be confirmed by some Democrat-dominated body in NYC.
Really? And what would the name of that "Democrat-dominated body" be? Feel free to admit you don't know what you're talking about right now before you dig yourself any deeper.
One of our fellow Freepers researched this subject and found that there was nothing significant about this.
"You obviously have no idea how federal judges are nominated. It's Republicans SENATORS (or senior reps if there are no Senators) who submit the names of district and appellate judges for the presidents to consider. The president only really pick Supreme Court judges on his own, and the bargain Giuliani has made with conservatives is that he will select Scalia-type judges."
Actually I do. I am sorry if Rudy's track record at appointments is abysmal. That is not my fault. If I interviewed for a job and one critical area of my experience was horrible, I wouldn't get hired. Same with Rudy. His appointments, not only for judges, have been predominantly democrat & liberal. I find that unacceptable.
You say that he will have zero influence with appointing federal judges. That is not even close to true. Lots of people are involved, but the current administration manages the entire process. One of Harriet Miers redeeming qualities was the caliber of judges that she pushed through the appointment process for President Bush. She did an excellent job in that regard. One thing that the RudyRooters really gloss over is Giuliani's well known reputation for micromanaging details within his administration. There should be no doubt that he would be intimately involved in the approval of any judges.
Please don't try to pass off Giuliani's shallow words about judges as some kind of ironclad agreement. You called it a "bargain with conservatives". It is not. Every candidate makes lots of campaign promises that mean exactly nothing after elected. Besides, Rudy loves to play on words. How do we know who he considers to be in the mold of Scalia? When talking about what he looks for in a judge, he has been quoted as saying "What's important to me is to have a very intelligent, very honest, very good lawyer on the court. And he [Roberts] fits that category, in the same way Justice Ginsburg fit that category." From the quote, how do I know that he doesn't consider Justice Ginsburg to be in the mold of Scalia? If he considers abortion is a constitutional right, as has been quoted saying, then Mrs. Ginsburg becomes a "strict constructionist" on the issue.
Perhaps a better claim would be to say:
"I will appoint only judges who are long term members of the Federalisrt Society. I will not appoint any judge who is or has been a member of the International Association of Lesbian and Gay Judges."
Al Gore considered himself a constitutionalist. I didn't believe him either.
I and a couple other FReepers investigated this and found that the FReeper that you're likely referring to was either wrong or lying.
Now, name the Democrat-controlled body in NYC that has to "confirm" the judges or admit you don't know what you're talking about.
Yea, lets see Look at NYC Pre Rudy and Post Rudy and you tell me what a "horrible" job he did.
I am amazed at the utter ignorance shown by folks here.
I will not say that I agree with all of Rudy's stands on social issues.. but to attempt to say Rudy is Hillary? Or Rudy is a RINO are just patently ignorant.
Rudy took a bastian of liberal corruption, decadence and decay and cleaned it up.... Is everyone here < 20 years old, or just completely ignorant? Do you remember what NYC looked like before RUDY? How you could not go to times square in the middle of the day without being accosted? etc etc etc?
Rudy took on the Teachers Unions in NYC, he took on the welfare and entitlement state, he instituted policies that helped turn NY, decaying from decades of liberal nonsense and helped transform it into what it is today.
A city of 8 Million people, entrenched in liberalism and he and his policies turned it around.
Policies BTW that were clearly motivated and inspired by the conservative world view. To call Rudy a RINO because he holds social stands you don't agree with it just ignorant. To say he's a Hillary.. someone who has accomplished absolutely nothing... is flat out retarded.
Rudy's got a track record of proven executive accomplishment, and has shown he does not view the world as government is the solution to the human condition. He's unequivacably shown he gets the WOT and won't back down on it.
You don't have to like the G man, that's fine, but to call him a RINO or to say he's not "conservative" is patently ignorant.
This is something the article doesn't address. It'd've been nice if the author had gotten a response from the Rudy campaign along the lines of, "I'd've liked to have have picked Scalia types back then, but I needed to GET folks CONFIRMED by an 80% plus left-liberal body. I did the best I could to pick sensible people, but short of leaving the benches vacant, I couldn't have gone further right." Dunno.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.