Redstate

Rudy can make the case (it will be tough) that he will appoint constructionists to the bench, making sure to point out that although he is personally pro-choice, Roe was wrongly decided and that it should be over turned so that the states can go ahead and decide for themselves. Or he will appoint constructionists and there will be no litmus test on abortion (it being implied that constructionists would over turn the poorly decided Roe).

The guy's personal social views are irrelevant.  As long as he's a federalist, and thinks that social policy should be decided by the people and their elected representatives, at the state level as much as possible, he would be fine.

The trick is explaining all this to regular pro-lifers who aren't political junkies and who may have a hard time with the whole "personally pro-choice" schtick.  This is where Rudy's private assurances on the issue to Pat Robertson and Ralph Reed could help him garner grassroots support.

I disagree with the gravamen of your argument

for several reasons. First, I doubt very much

that the conservative base would nominate Rudy

and that the other candidates you mention are

to be so summarily dismissed. I think the next

S.C. nominee should be an original constructionist and to submit a litmus test

on a specific issue would only introduce an

unnecessary complication. It would place the

Republicans in the very untenable position of

being a single-issue party. You also assume that

the one person who is clearly pro-choice will

for some (inexplicable to me) reason  

reject his own principles and convictions to

join the faction that disagrees with him - and

he with them - in order to nominate a person

with whom he disagrees. Personally, I wouldn't

vote for ANY candidate if I thought his core

values were easily metamorphised.

First, your conclusion is flat wrong.  The most electable and most pro-life candidate is easily John McCain.  There may be many other reasons to oppose his nomination but he has a 82% rating from the National Right To Life Committee.  And as many polls have shown he leads Mrs. Clinton 55-38 and both have full name recognition already.  He and Guiliani both trounce the NY Senator, but Mr. McCain is actually strongly pro-life.

Second, if you think "reformed" pro-choicers like Bush I appoint poor Supremes, I can only suspect non-reformed ones to be worse.  And since the number of single issue abortion voters is rather small even inside the party (although not nonexistent), Rudy could easily win without "reforming."  It would assuage my worries if he would come out against Roe but personally pro-choice.  He could make a federalist argument instead of a moral one and that might even win over more supporters of overturning Roe.  That would be good but not exactly for the reasons you mention.

All that said, a very thoughtful diary.  Recommended.

He did appoint Thomas and with Souter he may have had reasonable expectations that Souter would be conservative too. Ditto for Reagan, especially in regards to Kennedy, who was solidly conservative.  

Here's the thing:  I think Rudy is in the driver's seat for the nomination right now because so many rank-and-file Republicans want to nominate him.  But that's far from saying he will convince social (and economic) conservatives that he's with us.

You outline some reasons why Rudy would be well-advised to promise to appoint conservative judges.  I would love that.  But what has he actually done yet?  And he has a lot of pro-Roe statements in the past, not just pro-abortion.  Plus, Rudy is a very awkward champion of federalism, given his record as US Attorney.  Not saying it can't or won't be done, but don't get carried away here.  I'm a huge Rudy fan - I've met him several times - but there's a reason I'm still uncommitted for 2008.

As for McCain, yes, he has a fine pro-life record.  Not only did he vote for Clarence Thomas, I believe he was one of the 40 Senate Republicans who voted for Bork in 1987, too, and of course he voted to remove Clinton from office, which was a tough vote.  (Then again, he made some comments in 2000 that were interpreted as approving of Souter).  But is he the same guy?  McCain has shown an uncomfortable willingness to run against the base rather than with it.

. . .is the main culprit in the Souter nomination--he was the one assuring everyone that Souter was "a home run" as a nominee.  Of course, considering the temper tantrums that Captain Teddy and the usual suspects among the interest groups threw over Souter's unwillingness to pledge fealty to Roe v. Wade, it looked as if he might have been right.  I sometimes wonder if Clarence Thomas would have gone down to defeat if the nuts on the left hadn't blown so much of their credibility by going after a milquetoast candidate like Souter just the year before.

does that mean you want any woman who has had an abortion charged with murder? And doctor or nurse who has ever performed or aided in an abortion to be charged with murder? And should anyone who has ever taken someone or paid for someone to get an abortion be charged as an accomplice to murder?

Or, do you just want it overturned and do you want to exempt those from charges as well?

And if you exempt those from charges, then aren't you saying that abortion is pardonable/forgivable?

Just wanting a clarification.

Re: does that mean you want any woman who has had an abortion charged with murder?

This would be impossible, unless someone also passes a constitutional amendment repealing the ban on ex post facto laws. It is not possible to prosecute people for actions the committed in the past when those actions were legal.

I agree with the general argument. Rudy is in a unique position to play his personal views (social "liberal" for want of a better tag) vs. a traditionally conservative originalist or constructionist judiciary. All the other candidates, on both sides, fall far closer to the ends-oriented views on the issue. Rudy can still argue the process while most others cannot.

The democrats have long ago devalued the "personally against but for the right" argument, and thus have no credibility with the right wing. Same goes for the self-identified "pro-life" republicans - who are clearly mistrusted by the left as anti-Roe, and anti-abortion.

Rudy can credibly argue the old states rights argument on the issue, without the civil rights baggage that normally brings, given his socially liberal views as recited on any number of issues.

He also has several advantages over McCain, not the least of which is age.

Curiously, we never hear of Senator Reid's pro-life views anymore.

Elise, for one thing, the Constitution in Article I in sections 9 and 10 prevents ex post facto ("from a thing done afterward") laws.  In other words, the federal government cannot prosecute people for acts that are now illegal, but were legal in the past.  Besides, I know of nobody prominent (or "unprominent" for that matter) in the pro-life movement advocating what you describe.

Another thing is that if Roe v. Wade is overturned , so to speak, then the abortion matter could return to the states for the state legislatures or referenda to decide.  Though, it is possible that the federal goverment may decide to pass abortions laws.

On the main sticking points of conservatives with Roe. v. Wade is that it was an unconstitutional act of an unelected Supreme Court that overturned democratically enacted laws of the states.

the GOP base doesn't trust McCain and I also think that the left leaning moderates who adore McCain aren't aware of the fact that he is mostly pro life (I think he gets like a 20%ish rating from NARAL).  This of course would come out during any primary and general election, and I don't know that McCain would hold the advantage he does.

And I can honestly say I don't trust him.  There is a lot about Guliani that I like as a conservative, but admit his position on abortion is very troubling for me, and I don't know that I could vote for him.  

But I do think Guliani has an appeal in the South that most people from his neck of the woods don't have, and he may be able to make a case for the nomination.

I do agree that the last thing I want to see is a nominally pro life candidate who mostly just tickles my ears with the words I want to hear, but then doesn't follow through on anything.

federalism?  If he is a strong federalist, his position on abortion may be moot anyway.

so close to the whole Bork attack, Souter seemed at the time to be a good choice.  I think the lesson learned is that you don't go for the stealth candidat-go for the one you know.

should be one for states to decide as it was before the Roe decision.

States can determine based on their own community standards what they believe about the issue of life, when it begins and under what circumstances abortion should be legal.

I honestly think that if Roe was overturned tomorrow, most states would not totally ban the procedure, but several would put some pretty strict conditions on when and under what circumstances you could get one.  

Sadly, I think the real number of "strong federalist" who have any shot at public office of any sort is approaching zero. It's hard to pander your way to a national office saying all the things you don't think you have the power to do.

This is one area where I think the conservative hatred of judicial activism will haunt us, we NEED an activist judiciary on federalism issues, to keep everyone else in line with the constitution.

Had it right.  You can't prosecute people for violations of law that were completed prior to the passage of any such law.

And yes, I want Roe overturned.  I think the people of this country and their elected representatives have the right to set policy on abortion.  I don't think it's a constitutional "right."  I just don't.  And as I often tell my pro-choice friends who deride me for voting Republican, a post-Roe world would not exactly be a pro-lifer's dream world, as there would still be tons of states where abortion on demand was still the law and most states would still keep some abortions legal --- pre-viability, in case of rape or incest, exceptions for mother's life or health, etc.  Without Roe, though, those decisions would be made by voters like you and your elected officials at the state level instead of a few judges in Washington.

For years we've been losing elections in soft red states to Democrats who are "personally" pro-life but then go to DC and vote against even the most moderate abortion restrictions, like the PBA ban.  Bill Clinton was a perfect example of this.  Rudy would be the opposite: a personally pro-choice individual who, as a federalist, thinks that people and states should get to decide the issue of abortion, not the federal government and certainly not the federal courts.  As such, he'd be in the unique position to appeal to those soft blue state voters who identify with his pro-choice personal views, such as suburban women in PA and NJ, while still basically promising to appoint originalist judges who will likely be opposed to Roe.

of the issue.

AT this point, debate on the issue of life is rendered moot by the courts.  When life does or doesn't begin and at what point life should be protected is pretty much moot, because the Supreme court said so.

At least with Roe gone, the debate could have some meaning outside the philosophical.

Exactly my point, except perfectly stated.

The question then becomes, could the social right-wing of the GOP accept a fragmented split of abortion restrictions? Heavily restricted in some states (e.g. only exceptions to a prohibition), somewhat restricted elsewhere (e.g. viability, no 3rd trimester) and status quo most places - no greater limits than now?

I think so, and I think that's the middle of the pendulum.

What Rudy can show is that while some may want the SCOTUS to declare life protected from conception, this opposite of Roe position will land us in the same pickle we're in now - a judicial decision that is neither democratic nor republican in their non-political senses.

This is a much easier sell.  Fiscal conservatives may be surprised to know that Rudy:

1. Cut taxes by 8 billion dollars in NYC, including a 21 percent cut for the top tax rate.
   
2. Allowed the city's spending to increase less than 3 percent annually, and even enacted actual cuts --- actual CUTS --- in spending in two of his budgets.
   
3. Slashed the city employee rolls by 17 percent while still hiring more cops and teachers.
   
4. Slashed welfare rolls by 58 percent.
   
5. Supported vouchers and charter schools, an indicator that he understands that to reform our big domestic programs like education, we have to make them work better and cost less by introducing market forces.  In other words, he'd probably be on the right side of the Social Security and Medicare reform debates.

Rudy's no moderate.  He's a fiscally conservative defense hawk who, if also a social federalist, would be perfect for all factions of the GOP.

It's true that McCain is also a candidate who would be good for the pro-life movement as president and can win a general election.  I don't doubt that McCain would have to make similar concessions, such as his promise in 2000 to Gary Bauer to appoint pro-life judges, and his voting record shows that he's much more pro-life than some believe.

My issue with McCain is one of electability.  Can he win the general?  Absolutely.  Can he win the primaries?  I'm skeptical.  Every poll I see shows McCain getting around 1/4 to 1/3 of GOP primary support.  That's all good and well in New Hampshire, but when you're down to, say, McCain, Rudy, and Allen in the later primaries, I still see McCain garnering that same third of Republicans while the other two-thirds go with the other guys.  In other words, I think McCain, who has near-perfect name recognition among Republicans, is demonstrating that he has a ceiling of about a third of Republican voters, and that would mean that he can't win the nomination.

But you're certainly welcome to prove me wrong, as he'd assuredly decimate Hillary.

fine with Roe just being overturned.

For one thing, I personally don't see the SCOTUS declaring a fetus to have a right to life-that is a leap, that I just don't see them making at this point.

But an overturn of roe would put the debate in the legislatures of the states, and that is really where the debate on this issue belongs.  Pro life and pro choice people should be debating and discussing where the law should be in their state.

Right now, there really isn't any room for debate in the state houses beyond some basic restrictions like parental notification laws-rather than over the real substance of the debate-when does life begin, and at what point is the state obligated to protect it.

But, to give one example, Rudy made a big splash as US Attorney by escalating the number of drug busts that got turned into federal cases - once a week, he would have everybody arrested in the city on a drug beef that day charged in federal court.  You can agree or disagree with the tactic, but it was one sign of his willingness to tilt the balance towards federal power.