The Friday before Thanksgiving I listened to Rudy Giuliani address the Federalist Society's national convention and was charmed—well, almost charmed.
It's hard not to like "America's mayor," and Rudy said all the right things at Washington, D.C.'s Mayflower Hotel. Indeed, it's hard to believe any GOP presidential candidate has addressed the annual gathering of the conservative legal community with greater depth on federalism and the proper role of judges in our legal system. He even used the term "originalism" to describe the judicial philosophy that he wants his court appointees to follow, and he named his model judges—Antonin Scalia, Clarence Thomas, Samuel Alito and John Roberts.
All Federalist faves. All speakers at this year's conclave. All reassuring if you believe, as Rudy said, that "there are at least 200 reasons why the next election ... is going to be a critical one"—the 200 federal judges the next president will pick.
Yet not entirely reassuring for social conservative or pro-life Republicans. If Rudy's going to close the deal—or stop them from going to a third party or staying home on Election Day—he'll have to say more than he's said so far.
The same day I took in Rudy's speech, Hadley Arkes' piece in December's First Things hit my in-box. "The nomination and election of Rudy Giuliani would mark the end of the Republican Party as the pro-life party ... ," wrote the Amherst College professor. Arkes thinks that, whether pro-lifers refuse to vote for Rudy, form a third party or join Rudy's coalition, his successful candidacy would "put the pro-life movement itself on the course of ultimate extinction." He also thinks pro-lifers might be better off losing to Hillary Clinton than winning with Rudy.
It's a bracing read, even after Rudy's Federalist speech—no, especially after his speech.
Why? Because Rudy said all the right things about judging, but one big thing was missing: any mention of Roe v. Wade. It was odd. He criticized "judges ... trying to legislate their social policy through judicial interpretation" and groups trying "to impose their thinking on everyone else through the courts." Yet at every turn he failed to mention the Supreme Court's minting a brand new abortion right in Roe.
"The difference (between the parties over judicial interpretation) may be usefully demonstrated with reference to Roe v. Wade ... ," Terry Eastland writes in the latest Weekly Standard. "The Democrats running for president don't object to the Court's methodology in Roe. The Republicans regard the decision ... as the sort no judge should have rendered, because the right to abortion is located in neither the text nor the history of the Constitution."
Rudy's Federalist remarks contained several natural points of entry to a discussion of Roe. Instead, he made Roe conspicuous by its absence and, thus, gave greater credence to Arkes' bleak vision.
Giuliani will need to say far more to bring around GOP skeptics. On abortion, he doesn't need to change his position on the core issue. He can say he's pro-choice as a policy matter. But he should, at least, say that Roe is bad, judge-made constitutional law. If he cannot, that will tell us all something.
If Rudy wins the nomination, the media will rush to say that the Republican Party is no longer the pro-life party. He should have none of it. He should go out of his way to say the GOP will—and should—stay a pro-life party under him, that he's committed to the individual worth and dignity of all people and that he will not tamper with the party's pro-life platform. Specific reassuring steps he could take are:
- Use the news that President Bush's ethical stem cell policy has been vindicated in the laboratory to announce he no longer favors federally funded embryonic stem cell research.
- Announce his opposition to all U.N. efforts to make abortion a universal right.
- Commit to having the federal government run public affairs announcements promoting adoption.
- Commit to naming a pro-life Health and Human Services secretary and ambassador to the U.N.
- Reiterate again and again his opposition to federal taxpayer funding of abortions or organizations promoting abortion at home and abroad.
Pulling this off may be tricky, but not impossible. It would be one time I'd like to see the incomparable Hadley Arkes proven wrong on an abortion issue.
