Friday, October 8, 2004

Second Bush/Kerry debate (1)

I'm sure there a lot of people who, like me, are very relieved to hear that President Bush is steadfast against appointing judges who would uphold the Dred Scott decision.

So as long as Bush is president, he won't appoint any judges who would allow slavery throughout the United States. What a relief! It's great to know our Chief Executive has such high standards for judicial appointments.

(You can read the actual decision at Findlaw.com.)

As goofy as it may have sounded to a lot of people, there is a weird and worrisome logic behind that comment from Friday's debate:

MICHAELSON: Mr. President, if there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who would you choose and why?

BUSH: ... I would pick somebody who would strictly interpret the Constitution of the United States. ...

I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.

BUSH: Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.

And so, I would pick people that would be strict constructionists.

The Christian Right often uses the Dred Scott case as a comparison to Roe v. Wade, the decision ruling that the Constitution did not allow the outlawing of abortion in the first two trimesters.

In a recent article, John Dean noted a couple of things that shed light on Bush's statements Friday: ( Crucial But Largely Ignored 2004 Campaign Issue: The Next President Is Likely to Appoint At Least Three Supreme Court Justices Findlaw.com 09/24/04):

In the 1968 presidential campaign, Richard Nixon made his promised appointment of "strict constructionists" to the high Court a central issue of his campaign. ...

Probably the most sensitive vote belongs to the oldest member of the Court, who voted with the majority on Roe v. Wade -- Justice John Paul Stevens, who is 84. While Stevens was nominated by President Ford (indeed, he was Ford's only nomination), he votes with the moderate block of the Court.

In the hopes of overturn Roe, the conservatives covet the chance to replace Stevens. (Replacing Stevens and O'Connor, for example, with anti-Roe justices, would give conservatives the 5-4 majority they would need to overrule Roe.) ...

In 1968, "strict constructionism" was the buzz-word of segregationists who opposed Supreme Court decisions expanding civil rights, such as those requiring the integration of schools. Nixon's promise in 1968 was a signal to conservative Southern whites in particular that he sympathized with their complaints, at least to some degree.

As Joshua Green notes of a 1994 judicial race in Alabama in which Bush's political guru Karl Rove was backing Republican candidates in an aggressive campaign, the term appeals not only to the anti-civil-rights crowd but also get-government-off-our-backs business conservatives and to anti-abortionists:

"The attraction of calling yourself a 'strict constructionis,' as Rove's candidates did, this [former Rove] staffer explained, "is that you can attract business conservatives, social conservatives, and moderates who simply want a reasonable standard of justice." ("Karl Rove in a Corner," Atlantic Monthly print edition, Nov 2004)

The anti-abortionists would clearly have understood Bush's reference to the Dred Scott decision as being an indication that he would look for judges to overturn Roe v. Wade. They would understand the "strict constructionist" label in the same way.

3 comments:

Anonymous said...

 I couldn't believe it when Bush made his statement about Dred Scott, and I'm kind of surprised that no one is placing the case in historical context.  Bush said that the Dred Scott judge (I think it was Chief Justice Taney) put his personal feelings before the law, because the Constitution doesn't permit slavery.  But Dred Scott was decided in 1857.  Back then, the Constitution did permit slavery, or how else could we explain why Art. I, sec. 2(3) of the Constitution counts slaves as 3/5 of a person?  So rather than putting his personal feelings before the law (though I have no doubt that the judge felt just fine about the ruling), the judge was interpreting the Constitution.  In fact, had he ruled otherwise, it would have marked a dramatic judicial intervention into an area of social policy that the nation was unable to resolve through the political process until after the South's defeat in the Civil War.  So rather than Dred Scott being an example of a judicial philosophy that puts personal feelings before the law, the case is actually an example of the very strict constructionism that Bush claims to endorse.  

Anonymous said...

You have some good observations there.  And I don't doubt that if Bush had been president in 1857 instead of James Buchanan, he would have been even more enthusiastic for the decision.

I wouldn't agree, though, that the Dred Scott case was rightly decided, even by the standards of constituional law in 1857.  The legality of slavery in the slave states was not at issue.  What that decision did was to remove the power of Congress to restrict slavery in the territories.  It also went beyond earlier law in declaring that black Americans were not citizens and could not become citizens. The Court was going considerably beyond the precedents.  It was rightly considered a naked power grab by what was appropriately called the Slave Power.

Thanks for your comments and thanks for reading. - Bruce

Anonymous said...

An historical footnote:  Justice Taney was originally appointed to the Court by Andrew Jackson, this blog's namesake.  Taney had served as Jackson's Secretary of the Treasury and was considered a radical, of the leftwing variety, because of his fight against the abuse of concentrated wealth by the Bank of the United States.  But by 1857, he had become an ornery old defender of slavery.