Rudolph W. Giuliani, in an effort to temper his support for abortion rights and his other socially liberal stances, has been assuring conservatives that as president he would appoint “strict constructionists” to the federal bench, in the tradition of Supreme Court jurists Antonin Scalia, Clarence Thomas, Samuel A. Alito Jr. and John G. Roberts Jr.
But now, some prominent conservatives are saying that Giuliani’s record as mayor undermines that promise. In his eight years leading New York City, they say, Giuliani appointed a number of judges who did not appear to fit the conservative mold.
Giuliani, who has surged to a double-digit lead in polls in the race for the GOP presidential nomination, appointed or reappointed 127 municipal judges. He has cited that experience to conservative audiences to drive home the importance he places on judicial nominations. Municipal judges sit in family court, hear misdemeanor cases in city criminal courts and hear civil court claims of less than $25,000.
“Rudy’s judges were mostly liberal,” said Connie Mackey, a former New Yorker who now serves as vice president of FRC Action, the legislative and political arm of the conservative Family Research Council. “Any pro-lifer who believes they are going to get the kind of judge out of Rudy Giuliani that we see in either Roberts or Alito is probably going to be disappointed.”
Some constitutional law experts disagree with that conclusion. But there is no question that Giuliani’s appointment record has already drawn concern from some conservatives.
One judge approved by Giuliani, Rosalyn Richter, had been executive director of a gay rights organization, Lambda Legal Defense and Education Fund, before being named to the bench. After her initial appointment by former Mayor David N. Dinkins, Richter changed the questions asked of potential jurors to be more welcoming to gay and lesbian couples. She was later reappointed by Giuliani.
Another judge, appointed by Giuliani to the criminal bench in 1996, Dora Irizarry, has called herself pro-choice and was later elevated to the federal bench with strong support from Democratic Sens. Charles E. Schumer and Hillary Rodham Clinton of New York.
A family court judge reappointed by Giuliani, Sheldon Rand, was excoriated on the conservative-leaning New York Post editorial page last week for ruling that city funds be used to pay for a sex-change operation for an indigent New York resident.
And a fourth judge, Paula J. Hepner, appointed initially by Dinkins in 1995, issued a ruling that allowed a lesbian to adopt her partner’s child. Four years later, Giuliani reappointed Hepner to New York’s family court bench. Hepner was subsequently married to another woman in a ceremony in Canada.
Hepner declined to discuss Giuliani’s appointments but said in an e-mail that it would be “inappropriate” to draw conclusions about a judge based on a single opinion, or to rely on municipal court appointments to test a presidential candidate’s commitment to appointing federal judges of a certain philosophy.
“The concept of ‘strict constructionist’ is generally used in the context of constitutional analysis and interpretation which I have not once had to do as a family court judge in my 17 years on the bench,” Hepner wrote. She also said: “My reappointment was based on merit and reflects, I believe, an acknowledgment by Mr. Giuliani that diversity in the judiciary is important.”
The other judges did not respond to requests for comment.
The mayor’s record of judicial appointments, first described last week in the Politico newspaper, has already made a splash in the conservative blogging and talk radio community. “Rudy Giuliani needs to respond in detail” to questions about his judicial appointees, wrote conservative pundit Hugh Hewitt, in a column during last week’s meeting of the Conservative Political Action Conference.
Phyllis Schlafly, leader of the conservative Eagle Forum, said the Giuliani surge in public opinion polls would be short-lived and that Giuliani’s pledge to appoint conservative jurists would not win over the GOP base.
“The grass roots are more sophisticated than that,” she said in a recent interview.
Among abortion rights advocates, Giuliani’s record is viewed more charitably. “On balance, the great majority of Giuliani appointees were moderates,” said Kelli Conlin, executive director of NARAL Pro-Choice New York. “I didn’t notice a pattern of conservatives, and I certainly didn’t notice a pattern of appointing strict constructionists.”
The Politico noted that most of the appointees were Democrats. That is not a surprise in New York, an overwhelmingly Democratic city. Many also had prosecutorial experience, which matched the mayor’s crime-fighting priorities at the time.
“He was guided by concerns of competence, and he tended to favor what through a New York prism would be called ‘law and order,’ meaning an enlightened prosecutorial crowd,” said New York University law professor Stephen Gillers.
He called it “nonsense” to cite municipal judges, who deal with misdemeanors and small claims, as predictive of how a candidate would approach appointments to the Supreme Court.
Giuliani’s campaign spokeswoman Maria Comella made a similar point, insisting that Giuliani would indeed appoint “strict constructionists” if elected president.
Giuliani says he personally opposes abortion but does not want to lead a fight to overturn Roe vs. Wade, the 1973 Supreme Court decision that legalized the procedure. That case is often cited as a case of judicial activism in which the judges invented new rights with no textual basis in the Constitution.
“I’d like to see abortion reduced, I’d like to see it ended, but ultimately I believe that a woman has a right to choose,” Giuliani said last week in Spartanburg, S.C., where he came in two votes behind Sen. John McCain of Arizona in a straw poll of Republican voters.
Many of those attending the Conservative Political Action Committee meeting in Washington said that judicial selection was the second-most important issue of concern to conservatives, after national security.
Former U.S. Solicitor General Theodore B. Olson, who recently threw his support behind Giuliani, said the controversy was insignificant. He called Giuliani’s record of judicial appointments in New York “a nonstory. It’s making a mountain out of a molehill,” he said. “It’s not even a molehill. It’s an anthill.”
Olson said Giuliani, as associate attorney general in the Reagan administration, was involved in high-level discussions about judicial appointments and other issues on a day-to-day basis. Olson described the process as a “collaborative effort” that involved Olson himself, then-Atty. Gen. William French Smith, his chief of staff Kenneth W. Starr and others.
“The people we were looking for were top-quality judges ... and individuals who viewed their role as judges as limited to applying the law as it was written by Congress or enacted by the Constitution -- not as a way to make policy, but to respect the role of the legislatures and other policy-making officials,” Olson said.
Charles G. Moerdler, a member of a panel that reviewed judicial candidates during Giuliani’s tenure, said Giuliani’s appointments were based on merit. “I could not find any instance at all where I could find a political or ideological bias,” Moerdler said. “He went through a painstaking process of vetting.”