Tuesday, February 06, 2007

Giuliani Cont'd.

I think the difference, if any, between Scalia on the one hand and Roberts and Alito on the other will become clearer in just a few weeks once the Supreme Court rules on Gonzales v Carhart.

I confess I am not optimistic in re Gonzales v Carhart: at best I expect a sui generis ruling which will somehow hold that the finding within the law in question--that partial-birth abortion is not medically necessary--will serve as the bypass around the "health of the mother on the broadest conceivable terms" consideration required by Doe v Bolton.

This, however, would in fact serve to concentrate power in the federal judiciary, as the O'Connor doctrine of "I-know-it-when-I-see-it" on unjust racial preferences has, by requiring every state law on the matter to survive the arbitrary and capricious sensibilities, divorced from any predictable or concrete principle, of the 9 current members of the Supreme Court. This judgment-by-whim is the exact opposite of jurisprudence and makes a mockery of our claim to be a state governed by laws and not men.

Leaving the particulars of Gonzales v Carhart, the entire collapse of sexual and family jurisprudence of the last 40 years has created a huge vacuum in the social order of the country which various politicians have attempted and are attempting to fill by sheer force of personality and emotional posturing rather than rational moral analysis. If abortion must be safe and legal, why is it necessary that it be rare? It is true that Giuliani's positions on the legal standing of various sexual questions reflect the incoherence of the American public at large on these issues quite well, and are therefore no threat by themselves to his political prospects.

However, to run in the Republican primary Giuliani will have to reach an accomodation with those who support the traditional (i.e., pre-1960's) understanding of the nature and importance of family law within the constitutions of the various states. Giuliani seems to want to do this mostly by refusing to consider the underlying questions, except in a few cases (such as domestic partnerships) where he is in fact willing to use the power of the government to push the nontraditional understanding. This will remain a persistent vulnerability throughout the primaries, but not perhaps a fatal one, given his other strengths. Merely acknowledging that he can win is different from agreeing that his position is correct, coherent or politically viable over the long term on this issue, though.

More generally, I don't take comfort from the proposition that, since the traditionalist wing of the party has received mere lip service on most aspects of the abortion issue , that wing of the party should therefore embrace a candidate who won't even offer lip service. The bottom line is that there is nothing Giuliani has proposed to do to advance the concerns of those within the party concerned about these issues.

Maybe this is all a clever ploy by a cunning crypto-Catholic seeking to subvert the Sexual Revolution from within, but those of us outside the purported conspiracy have yet to see any spark of activity from his camp in support of those concerns.

As the Editor says, Giuliani has not disqualified himself to the Republican primary voters who care about these issues, but given the publicity surrounding this announcement in a completely friendly venue, Giuliani's incoherence spoke volumes.

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