We’re seeing some awfully complicated positions on abortion from some of the presidential candidates. It’s easy to hoot with derision.
Rudy Giuliani did an elaborate dance the other day. Speaking in South Carolina, he said that “as a lawyer,” he liked having “strict constructionists” on the federal courts. But he didn’t specify what he wanted those “strict constructionist” judges to do with Roe v. Wade. Instead, he shifted to talking about how it’s “part of our freedom” for the legislatures in the various states to make their own decisions about law.
More recently, on Larry King’s show, Giuliani said he was pro-choice, though he hates abortion, and retreated again into ideas about the sort of judges he would appoint. King dogged him for blunter answers, and Giuliani must have sounded evasive to most people.
When King assumed that “strict constructionist” judges would overrule Roe v. Wade, Giuliani said, “We don’t know that.” When King asked, “Would it hurt you if they overturned it?” Giuliani turned the focus away from himself: we need good judges, and then there are always the states.
Meanwhile, Ruth Marcus of The Washington Post is pointing at a contorted pose that Mitt Romney struck, explaining something he said when he ran for governor of Massachusetts: “What I said to people was that I personally did not favor abortion, that I am personally pro-life. However, as governor I would not change the laws of the commonwealth relating to abortion.
“Now I don’t try and put a bow around that and say what does that mean you are — does that mean you’re pro-life or pro-choice, because that whole package — meaning I’m personally pro-life but I won’t change the laws, you could describe that as — well, I don’t think you can describe it in one hyphenated word.”
If you’re already opposed to Giuliani or Romney, I’m sure the ridicule practically writes itself. Something so convoluted has got to be manipulation. Right? Compare them with straight-talking John McCain, who said: “I do not support Roe v. Wade. It should be overturned.” That’s harder to mock.
But it is the candidate who sets out to deceive us who has the most reason to keep it simple. By contrast, complexity may signal that the candidate is actually trying to tell us something about how he thinks. He may have a sophisticated grasp of the role of the executive in relation to the courts and the legislatures. We might do well to tolerate some complexity.
What should a candidate say about abortion? To represent what the country as a whole thinks, the president ought to take account of the deep beliefs Americans have about both reproductive freedom and the value of unborn life. To deserve the trust embodied in appointment power, the president should have a sound understanding of the judges as independent decision makers who follow an interpretive methodology that operates differently from political choice.
So instead of smirking, we should welcome the kind of complicated statements we’re hearing from Romney and Giuliani. Any individual who is offering to wield presidential power should resist assuring us about what his judicial appointees will do. To do otherwise is to tip us off that he means to populate the judiciary with politicos.
If we listen with a decent sympathy, the things Giuliani and Romney say about abortion make sense. When Romney ran for governor, he made a commitment to Massachusetts voters not to attack the law he knew they supported. That was politically expedient, of course, but it also took an admirably limited view of executive power and acknowledged the independence of the legal system.
Similarly, Giuliani respects the distinctive work of judges and the separate role of the state legislatures. If Roe were overruled, those legislatures would decide how to regulate abortion. And decentralized legislation really is fairly called “part of our freedom” because the Constitution’s framers saw the balance of power between the national government and the states as a safeguard against tyranny.
So I’d like to see a little more patience with what Romney and Giuliani are saying. But that doesn’t mean we should be naïve. The next president will select real individuals to be judges, and no matter how diligent they are, they will bring something of their humanity to their interpretation of the law, a version of humanity that will express something of the president’s cast of mind.
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