Captain's Quarters -

The Los Angeles Times visits the bubbling controversy over Rudy Giuliani's judicial appointments to the municipal bench while mayor of New York City, an issue that has some conservatives concerned over his presidential aspirations. Giuliani has sworn to nominate strict constructionists to the federal appellate bench if elected President, but the Times finds four appointments -- out of 127 -- that fail to fit that mold. And Tom Hamburger and Adam Schreck manage to miss a critical fact about judicial appointments in their supposedly comprehensive look at Giuliani's appointments:

Rudolph W. Giuliani, in an effort to temper his support for abortion rights and his other socially liberal stances, has been assuring conservatives that as president he would appoint "strict constructionists" to the federal bench, in the tradition of Supreme Court jurists Antonin Scalia, Clarence Thomas, Samuel A. Alito Jr. and John G. Roberts Jr.

But now, some prominent conservatives are saying that Giuliani's record as mayor undermines that promise. In his eight years leading New York City, they say, Giuliani appointed a number of judges who did not appear to fit the conservative mold.

Giuliani, who has surged to a double-digit lead in polls in the race for the GOP presidential nomination, appointed or reappointed 127 municipal judges. He has cited that experience to conservative audiences to drive home the importance he places on judicial nominations. Municipal judges sit in family court, hear misdemeanor cases in city criminal courts and hear civil court claims of less than $25,000.

"Rudy's judges were mostly liberal," said Connie Mackey, a former New Yorker who now serves as vice president of FRC Action, the legislative and political arm of the conservative Family Research Council. "Any pro-lifer who believes they are going to get the kind of judge out of Rudy Giuliani that we see in either Roberts or Alito is probably going to be disappointed."

Some constitutional law experts disagree with that conclusion. But there is no question that Giuliani's appointment record has already drawn concern from some conservatives.

In support of this thesis, Hamburger and Schreck look at a total of four appointments -- less than 4% of the total number of appointments Rudy made. Of these four, two get flagged for having sympathies for the gay community, one for being pro-choice, and the other for just being incompetent. One of his appointments, the openly gay Paula J. Hepner, got married in a civil ceremony in Canada.

While that may be enough for the Family Research Council to get the vapors, it ignores two salient points. First, municipal judges do not decide cases on issues of constitutionality. Hepner, the only one of the four judges to respond to the LAT, makes this point when she states that she never had to consider the text of the Constitution during 17 years on the municipal bench. Why? Because municipal judges deal in cases involving city laws, for the most part.

The second point is that the Times is apparently too lazy to research the appointment process in New York City. As I reported during CPAC, the mayor does not select the candidates himself. An independent panel selects three potential candidates for each judicial appointment, and the mayor has to select one of the three. That process is designed to keep personal politics at a minimum in the decision to appoint judges to the bench in the city. Hamburger and Shreck make no mention of this in their article, nor how that impacted the selection of judges by Giuliani.

It seems to me that a newspaper article that purports to investigate an issue should look at all of the facts relevant to the story, especially process-related facts. That requires actual research, however, something the pair apparently skipped. Most of the information in this article came from The Politico, which published its exposé on Rudy's judges more than a week ago. It only took me about thirty seconds of Googling to come up with this website, which lists the members of the Mayor's Advisory Committee on the Judiciary.

Journalists would have taken some time to understand the process, but it looks like the LA Times doesn't have any on staff.