Sunday, February 11, 2007

Wisconsin Right to Life knows judicial philosophy matters

Cory Liebmann is sure that Supreme Court candidate Annette Ziegler must have told Wisconsin Right to Life how she will vote on issues related to abortion in order to garner the group's endorsement. She must have, he thinks, promised that "she would be a conservative judicial activist for their extreme interests. "
This, he concludes, betrays the commitment of conservatives to something called "judicial restraint."

I have no idea of what Annette Ziegler told Wisconsin Right to Life, although I would be shocked if she (or, for that matter, Linda Clifford) said anything about how she would decide a particular case. Contrary to Cory's assumption, Wisconsin Right to Life - or any other pro-life group - are perfectly able to endorse a judicial candidate based upon an understanding of that candidate's judicial philosophy.

The recognition of a constitutional right to abortion is an inherently "activist" position. This is so because judges committed to restraint are, at minimum, "textualists," i.e., they believe that a judge ought to limit herself to the text of the law that she is interpreting. Neither the right to an abortion, nor the larger right to privacy of which it is said to be a part, are referred to in the Constitution. You can read more about that here.

This is why the left has called Rudy Giuliani's statement that he will appoint judges who are "strict constructionists" a promise to appoint "anti-choice" judges. A strict constructionist (or "restraintist") would, in all likelihood, not find a constitutional right that is not in the constitution.

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