Friday, February 16, 2007

Rudi Giuliani, strict constructionist

Giuliani on the law:
KING: Yet you'll say you'll appoint judges who are strict constructionists. If that's the case, they're going to vote to overturn "Roe v. Wade," which you don't want.

GIULIANI: I don't know that. You don't know that.

KING: Well, what is strict constructionist?

GIULIANI: Well, OK, there are a lot of ways to explain that. I mean (UNINTELLIGIBLE)... KING: Do you still favor ""Roe v. Wade?""

GIULIANI: I am pro-choice, yes. But I -- I'm also, as you know -- always have been -- against abortion, hate abortion, don't like it, wouldn't personally advise anyone to have an abortion and -- but I believe a woman has a right to choose. And you can't have criminal penalties and I think that would be wrong.

I would select judges who try to interpret the Constitution rather than invent it, from my views as a lawyer. And I don't want to sound presumptuous, I'm not a constitutional lawyer, but I have argued in the Supreme Court and I have argued in many of the circuit courts.

I've spent more time in court than I have in politics.

And I just think it's very, very important that a judge have a judicial philosophy that says I am going to try to figure out what the framers of the Constitution meant when they wrote this or what the people who amended it meant when they put it in, not what I'd like it to mean, not what I feel it means.

I had that view about the criminal law. I thought a lot of the decisions of the Warren court were a mistake.
That would be this Warren court:
Warren was a much more liberal justice than had been anticipated. As a result, President Eisenhower later remarked that nominating Warren for the Chief Justice seat was "the biggest damned-fool mistake I ever made." Warren was able to craft a long series of landmark decisions including Brown v. Board of Education 347 U.S. 483 (1954), which overthrew the segregation of public schools; the "one man, one vote" cases of 1962–1964, which dramatically altered the relative power of rural regions in many states; Hernandez v. Texas, which gave Mexican-Americans the right to serve on juries; and Miranda v. Arizona, 384 U.S. 436 (1966), which required that certain rights of a person being interrogated while in police custody be clearly explained, including the right to an attorney (often called the "Miranda warning").
Some specifics rulings Giuliani doesn't like:
GIULIANI: I thought the exclusionary rule was a mistake. I thought, to some extent, "Miranda" was a mistake.

Now, here's what the court did with those. A lot of people thought that with the -- with the Berger...

KING: I know prosecutors who loved "Miranda." It made cases more solid.

GIULIANI: "Miranda's" OK, but when people -- if people, you know, don't give a "Miranda" warning quickly enough and somebody blurts out a confession, I still want to put that murderer in jail. And when a cop makes a mistake in finding a weapon or finding -- and finding drugs, I never liked the idea of giving it back to the criminal.

So here's what the court did. The two courts that came after -- the two conservative courts that came after, Berger and Rehnquist, people thought they were going to overrule "Miranda." They thought they were going to overrule "Escobedo," the exclusionary rule.

They didn't overrule it. They limited it.

KING: All right. And...

GIULIANI: And they limited it to a point where it is now quite rational.
The Exclusionary Rule is designed to provide a remedy and disincentive, short of criminal prosecution, for prosecutors and police who illegally gather evidence in violation of the Fourth and Fifth Amendments in the Bill of Rights, which provide for protection from unreasonable searches and seizure and compelled self-incrimination.

And here was Warren's reasoning in the Miranda decision:
The police did not effectively advise (Escobedo) of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible.

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