DISTINGUISHING

I have to believe Frank Rich knows better than this:

Even leaving aside the Giuliani record in New York (where his judicial appointees were mostly Democrats), the more Democratic Senate likely to emerge after 2008 is a poor bet to confirm a Scalia or Alito even should a Republican president nominate one. No matter how you slice it, the Giuliani positions on abortion, gay rights and gun control remain indistinguishable from Hillary Clinton’s.

Look, I like to gloat as much as the next guy, but let’s not do it at the expense of reality. And Rudy Giuliani has indeed gotten more traction than many (myself included) thought he ever could, despite James Dobson et al’s significant discomfort with him. But he’s not a pro-choice candidate (he’s not a pro-gay rights or pro-gun control candidate either). He believes abortion is immoral, and he’s made it clear to anyone who’s paying attention that he’ll appoint judges who will make abortion illegal. The intermediate question of whether he has nice things to say about laws banning abortion is a detail (he’s also reversing himself on laws that make it more difficult for women to access the right to choose). While the Senate on a good day can hold back particularly crazy nominees, the only people who come their way for confirmation are the ones the president sends over. And in case you haven’t noticed, drafting strategies on how to overturn Roe isn’t enough to deny you confirmation votes from Democrats.

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MSNBC reports that Justice Scalia is touring the country promoting himself and his “dead constitution” jurisprudence:

Executing someone under 18 was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid, it may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea.

Among those rolling in their graves over Scalia’s insistence on originalism must be Frederick Douglass, who declared in a speech in Glasgow in 1860:

…the intentions of those who framed the Constitution, be they good or bad, for slavery or against slavery, are to be respected so far, and so far only, as will find those intentions plainly stated in the Constitution. It would be the wildest of absurdities, and lead to endless confusion and mischiefs, if, instead of looking to the written paper itself for its meaning, it were attempted to make us search it out, in the secret motives, and dishonest intentions, of some of the men who took part in writing it. It was what they said that was adopted by the people, not what they were ashamed or afraid to say, and really omitted to say.