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."
And that is my point, we need to be able to back our Republican candidate no matter what his political bent. Most of Perot's support came from convervatives who were out to show Bush senior their displeasure.
Unlike most U.S. Attorneys who delegate the trial and other courtroom work to Assistant U.S. Attorneys, Rudy G. actually appeared in court himself from time to time in high profile cases. If I recall correctly, he personally prosecuted one of the the more famous political corruption cases involving the NYC Parking Violations Bureau. He was the lead trial attorney. Because of publicity, the case was moved to New Haven, CT. One of the defense attorneys was Gerald Leftcourt, who is one of the most skilled criminal defense lawyers in the NYC Bar. Result: Guilty.
That may be wise advice, but we'll worry about that after the primaries. A large swath of conservatives are going to work awfully hard to see that Rudy gets the boot.
Good find!
Similarly, I don't think he's "pro-homosexual" in the radical sense, meaning support for Gay "marriage" as a right and moral approval of all homosexual behavior. He just doesn't hate gay people and is willing to accept them as friends and colleagues. I dare say most conservatives would not be uncomfortable with such a position, especially since most of us have friends, acquaintances and, yes, family members who are of that persuasion. Acceptance is not the same thing as approval. I'd like to hear more of Guiliani's thoughts on the matter before I reach a final conclusion.
As for global warming, hate crimes, and gun control, I do seriously disagree with his positions on all of these, and consider them now as strikes against him. Spending is another matter, as his financial management of NYC was not bad at all, especially given the lack of conservative fiscal supporters and influences in New York. Once again, I'd like to hear him out.
I know, I know: where is Ronald Reagan when we need him?
I don't want "conservative" judges. I want judges who read the constitution and apply what is there, not what they think is there.
Activists are bad on both sides...see Gonzalez vs Reich.
Ping in case you missed this.
Thanks. I'm pretty much getting pinged to all the threads now.
I have an interesting scenario that my cousin experienced
back in late '06 concerning a particular Guiliani campaign worker.
My cousin owns and operates a local transportation service
and was called to pick up a fellow from one of the local hotels and deliver him to CBN (Pat Roberson's complex).
As they headed towards CBN my born-again cousin mentioned his faith and his passenger reacted with utter dismay & contempt.
After a predictable silence, the passenger received a cell phone call from someone and proceeded to have a loud obscene chat concerning their sexual proclivities ad nausem.
Additionally there was vile and mocking talk about how his intended audience being nothing but religious dupes .
Turns out this fellow was a Guiliani front guy sent to CBN to speak before a large Christian audience consisting of 700 club members and Regent law school students.
As he departed the cab, my cousin realized that he had carried a direct enemy of his faith and he's certain his fare felt the same way because of his lack of faith.
I have heard that many Christians have bought the Guiliani campaigns repackaging efforts.
With the knowledge I possess, I for one DO NOT!
That will be fine, so far I haven't seen any conservatives that can beat Hildabeast.
Whoever wins the GOP nomination will crush old crusty. She is a pathetic candidate. I don't even think the Clinton Inc team will get her the dem nod.
This is off topic, but the Politico has an article discussing the judges Giuliani appointed while mayor of NYC. The article claims those judges have tended to lean left, and thus Giuliani’s past record of appointing judges conflicts with his present claims that he would appoint judicial conservatives.
This article is quite misleading. Anyone with even a slight understanding of NYC politics and NYC courts understands that the legal community in NYC is overwhelmingly liberal. The panels chosen to investigate and approve judicial candidates are controlled by the local borough Democrat parties. Thus, in general, the only candidates “approved” by these panels are overwhelmingly liberal Democrats. Ultimately, the mayor has almost no practical effect on the process, and is left to choose from the best of the worst, so to speak. Genuine merit or legal acumen rarely factors into the panels’ approvals. Tus, there is an enormous difference between who Giuliani was able to pick in NYC and who he would be able to pick as president.
Another important consideration, which is mentioned in the article, is that the judges the mayor appoints hear and decide low level cases that rarely involve any of the issues a federal judge would hear. In fact, these issues are so banal and tedious they are rarely heard by the NY Supreme Courts, which are the trial level courts in NY, much less the Appellate Divisions and the Court of Appeals. The judges the mayor is involved in selecting sit in City criminal courts (mostly misdemeanor and petty stuff), the family courts, and the Civil Court, which is essentially small claims court. Needless to say, these judges rarely deal with constitutional issues, with major statutory cases, or with issues that have major social/cultural implications.
In conclusion, there is almost nothing to infer from Giuliani’s NYC judicial appointments when attempting to guess who or what he might look to when selecting federal judicial nominees. The article is misleading and is an attempt to make conservatives (both judicial and social) doubt Giuliani and his commitment to place judicial conservatives on the courts.
Right on. As an ex-New Yorker I know how libs dominate that city.
Thank you. I'm keeping that one.
That answers my $64,000 question (as I'd put it) from earlier in the thread.
So this judges thing is a misleading issue vs. Rudy. (Which I don't understand, considering the number of more genuine issues for conservatives to be concerned about him, like border non-enforcement, Gore-bal warming hysteria, and 2d Amendment.)
I so hope you are correct, I despise that woman.......!
I already knew the answer. I've posted about it before. I was trying to point out the LtdGovt doesn't know what the heck he's talking about.
Now, who appoints the people on that committee? (I already know the answer to this one too and I've posted about it before.)
Giuliani said homosexuality is "good and normal." quoting Ray Kerrison New York Post, July 7, 1989.
Now Rudy Giuliani has jumped on the bandwagon, pressing the state Republican Party to release a gay-rights bill to the Senate floor for a vote. Marching in Sunday's [Gay Pride] parade, he has enlisted in the struggle to destroy the family. What a perfectly abominable springboard to seek high political office. Ray Kerrison New York Post, June 30, 1993
That does not make him "pro-abortion" in the sense that NOW is "pro-abortion"
Rudy Guiliani on abortion: "I'd give my daughter the money for it [an abortion]."
On Abortion: Leaflets distributed by the Giuliani campaign .... said that he opposes restrictions to Federal Medicaid financing for abortions and opposes the Hyde Amendment, which is intended to deny support for that financing. New York Times, June 18, 1993.
As mayor, Rudy Giuliani will uphold a woman's right of choice to have an abortion. Giuliani will fund all city programs which provide abortions to insure that no woman is deprived of her right due to an inability to pay. He will oppose reductions in state funding. He will oppose making abortion illegal. New York Times, August 4, 1989
Instead of quizzing that other fellow, could you please explain or link, please, how the Advisory Committee is appointed? (I found out how it's done 2002-present, but nothing about how it was done previously.)
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