October 13, 2004

THEY DO TAKE AN OATH THAT PRECLUDES ROE:

Why Bush Opposes Dred Scott: It's code for Roe v. Wade. (Timothy Noah, Oct. 11, 2004, Slate)

In the Oct. 8 debate, President Bush baffled some people by saying he wouldn't appoint anyone to the Supreme Court who would condone the Dred Scott decision. Dred Scott was, of course, the famous 1857 Supreme Court decision that affirmed slaves remained the property of their owners even when taken to free territories and that prohibited even free African-Americans from becoming U.S. citizens. Since the Civil War and the subsequent passage of the 13th and 14th amendments, Dred Scott v. Sandford has been a dead letter in American jurisprudence. Yet Bush felt compelled to reassure TV viewers that he wanted no truck with its legal reasoning:

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. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.

And I suspect one of us will have a pick at the end of next year—the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.

What was the meaning of this borderline-incoherent ramble? Apparently, it was an invisible high-five to the Christian right. "Google Dred Scott and Roe v. Wade," various readers instructed me, and damned if they weren't on to something. To the Christian right, "Dred Scott" turns out to be a code word for "Roe v. Wade." Even while stating as plain as day that he would apply "no litmus test," Bush was semaphoring to hard-core abortion opponents that he would indeed apply one crucial litmus test: He would never, ever, appoint a Supreme Court justice who condoned Roe.


Abortion Foes Call Bush's Dred Scott Reference Perfectly Clear (Peter Wallsten, October 13, 2004, LA Times)
President Bush left many viewers mystified last week when, answering a question in his debate with Democratic challenger John F. Kerry, he invoked the 1857 Dred Scott decision that upheld slavery.

The answer seemed to be reaching far back in history to answer the question about what kind of Supreme Court justice Bush would appoint. But to Christian conservatives who have long viewed the Scott decision as a parallel to the 1973 Roe vs. Wade ruling legalizing abortion, the president's historical reference was perfectly logical — and his message was clear.

Bush, some felt, was giving a subtle nod to the belief of abortion foes, including Supreme Court Justice Antonin Scalia, that just as the high court denied rights to blacks in the Scott case it also shirked the rights of the unborn in Roe, which many conservatives call the Dred Scott case of the modern era.

"It was a poignant moment, a very special gourmet, filet mignon dinner," said the Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition, a prominent conservative advocacy group based in Washington. "Everyone knows the Dred Scott decision and you don't have to stretch your mind at all. When he said that, it made it very clear that the '73 decision was faulty because what it said was that unborn persons in a legal sense have no civil rights."

Sheldon, who said he confers frequently with Bush and his senior campaign advisors on outreach to religious conservatives, though not in this instance, credited the use of Dred Scott with raising the abortion issue to "a very high level" and "back to the front burner."

"It didn't just slip out by accident," Sheldon said.

Douglas Kmiec, a Pepperdine University constitutional law professor who served as a lawyer in the Reagan and first Bush administrations, said the reference instantly struck him for its appeal to abortion opponents, advocates for judicial restraint and even civil rights advocates who regard the Scott case as the court's all-time worst moment.

"I thought it had so many constituencies that could applaud that comment; it was one of the most intelligent things that I heard in the debate," he said.


MORE (David Cohen writes):
This is bopping around the lefty sites and nicely demonstrates how out-of-touch the left has become.

1. The President doesn't have to speak in code about abortion. The President and the Republican party oppose Roe v. Wade and want to make abortion illegal. Far from speaking about it in code, the President and the party are perfectly up front about this.

This is what the platform says:

As a country, we must keep our pledge to the first guarantee of the Declaration of Independence. That is why we say the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution and we endorse legislation to make it clear that the Fourteenth Amendment’s protections apply to unborn children. Our purpose is to have legislative and judicial protection of that right against those who perform abortions. We oppose using public revenues for abortion and will not fund organizations which advocate it. We support the appointment of judges who respect traditional family values and the sanctity of innocent human life.

Our goal is to ensure that women with problem pregnancies have the kind of support, material and otherwise, they need for themselves and for their babies, not to be punitive towards those for whose difficult situation we have only compassion. We oppose abortion, but our pro-life agenda does not include punitive action against women who have an abortion. We salute those who provide alternatives to abortion and offer adoption services, and we commend Congressional Republicans for expanding assistance to adopting families and for removing racial barriers to adoption. We join the President in supporting crisis pregnancy programs and parental notification laws. And we applaud President Bush for allowing states to extend health care coverage to unborn children.

We praise the President for his bold leadership in defense of life. We praise him for signing the Born Alive Infants Protection Act. This important legislation ensures that every infant born alive – including an infant who survives an abortion procedure – is considered a person under federal law.

We praise Republicans in Congress for passing, with strong bipartisan support, a ban on the inhumane procedure known as partial birth abortion. And we applaud President Bush for signing legislation outlawing partial birth abortion and for vigorously defending it in the courts.

In signing the partial birth abortion ban, President Bush reminded us that "the most basic duty of government is to defend the life of the innocent. Every person, however frail or vulnerable, has a place and a purpose in this world.” We affirm the inherent dignity and worth of all people. We oppose the non-consensual withholding of care or treatment because of disability, age, or infirmity, just as we oppose euthanasia and assisted suicide, which especially endanger the poor and those on the margins of society.

We support President Bush’s decision to restore the Drug Enforcement Administration’s policy that controlled substances shall not be used for assisted suicide. We applaud Congressional Republicans for their leadership against those abuses and their pioneering legislation to focus research and treatment resources on the alleviation of pain and the care of terminally ill patients.

And here's what the Platform says about Judges and abortion:

In the federal courts, scores of judges with activist backgrounds in the hard-left now have lifetime tenure. Recent events have made it clear that these judges threaten America’s dearest institutions and our very way of life. In some states, activist judges are redefining the institution of marriage. The Pledge of Allegiance has already been invalidated by the courts once, and the Supreme Court’s ruling has left the Pledge in danger of being struck down again – not because the American people have rejected it and the values that it embodies, but because a handful of activist judges threaten to overturn commonsense and tradition. And while the vast majority of Americans support a ban on partial birth abortion, this brutal and violent practice will likely continue by judicial fiat. We believe that the self-proclaimed supremacy of these judicial activists is antithetical to the democratic ideals on which our nation was founded. President Bush has established a solid record of nominating only judges who have demonstrated respect for the Constitution and the democratic processes of our republic, and Republicans in the Senate have strongly supported those nominees. We call upon obstructionist Democrats in the Senate to abandon their unprecedented and highly irresponsible filibuster of President Bush’s highly qualified judicial nominees, and to allow the Republican Party to restore respect for the law to America’s courts.

The sound principle of judicial review has turned into an intolerable presumption of judicial supremacy. A Republican Congress, working with a Republican president, will restore the separation of powers and restablish a government of law. There are different ways to achieve that goal, such as using Article III of the Constitution to limit federal court jurisdiction; for example, in instances where judges are abusing their power by banning the use of "under God" in the Pledge of Allegiance or prohibiting depictions of the Ten Commandments, and potential actions invalidating the Defense of Marriage Act (DOMA). Additionally, we condemn judicial activists and their unwarranted and unconstitutional restrictions on the free exercise of religion in the public square.

Somehow, I doubt that Tim Noah has heretofore been under the impression that the President was going to be nomination pro-choice justices.

2. Why, exactly, is this secret code so secret? The slavery/abortion analogy has been around at least since I was in law school almost 20 years ago. For those who believe that blacks and fetuses are people, the analogy is seamless. I understand that Noah does not so believe, but is it really the President's fault that someone who's job is to follow politics is ignorant of one of the most powerful arguments being made by one of the two sides of one of the most important political issues of our time?

The analogy between Roe and Dred Scott is also well-established and powerful. (Justice Taney's opinion in Dredd Scott is well-worth reading, if horrifying.) The nearest one can come to an actual holding is that Dred Scott, even if free, could not bring suit in federal court because he was the descendent of slaves imported into the United States. Taney decides, without any citation to any governing constitutional language, that slaves and their descendents could not be citizens based upon his preference for that result. The analogy to Roe is painfully clear.

3. Why else would the President mention Dred Scott? Two reasons pop to mind. First, it is entirely appropriate to note that, in choosing Supreme Court justices, he would attempt to avoid proponents of the legal philosophy used in Dred Scott and Roe.

Second, and once again, if I were Tim Noah, I wouldn't boast about not knowing this, the President might have noticed that he, his administration and his party are constantly being accused of pining for the days of Dred Scott. For example:

Jesse Jackson continues accusatory rhetoric: Compares Bush victory in Supreme Court to Dred Scott decision ("On Wednesday, Jackson clarified his earlier statement, saying, "When the Supreme Court issues a ruling calculated to deal a setback to the causes of civil rights in this country, the people respond." He compared the 5-4 decision to the 1857 Dred Scott case in which the court ordered Scott, who had petitioned for freedom, to remain a slave. Jackson also compared the pro-Bush decision to Plessy v. Ferguson, in which the court made its historic "separate but equal" declaration."); Scalia's view likened to slavery ruling: His anti-sodomy dissent echoed reasoning given in the Dred Scott case in 1857, some scholars say; Dred Scott, Revisited: Decision in redistricting case maintains a dismal Texas tradition.

Posted by Orrin Judd at October 13, 2004 9:33 AM
Comments

He doesn't seem to know much about the Dred Scott case, but I'm glad he's agin the verdict

Posted by: Harry Eagar at October 12, 2004 9:26 PM

Next up: Noah explains how the name Nikita Khrushchev was actually a secret code name for Don Zimmer on WEEI in Boston during the Red Sox' 1978 collapse against the Yankees.

Posted by: John at October 12, 2004 9:36 PM

Curses. Preempted again.

This is bopping around the lefty sites and nicely demonstrates how out-of-touch the left has become.

1. The President doesn't have to speak in code about abortion. The President and the Republican party oppose Roe v. Wade and want to make abortion illegal. Far from speaking about it in code, the President and the party are perfectly up front about this.

This is what the platform says:

As a country, we must keep our pledge to the first guarantee of the Declaration of Independence. That is why we say the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution and we endorse legislation to make it clear that the Fourteenth Amendments protections apply to unborn children. Our purpose is to have legislative and judicial protection of that right against those who perform abortions. We oppose using public revenues for abortion and will not fund organizations which advocate it. We support the appointment of judges who respect traditional family values and the sanctity of innocent human life.

Our goal is to ensure that women with problem pregnancies have the kind of support, material and otherwise, they need for themselves and for their babies, not to be punitive towards those for whose difficult situation we have only compassion. We oppose abortion, but our pro-life agenda does not include punitive action against women who have an abortion. We salute those who provide alternatives to abortion and offer adoption services, and we commend Congressional Republicans for expanding assistance to adopting families and for removing racial barriers to adoption. We join the President in supporting crisis pregnancy programs and parental notification laws. And we applaud President Bush for allowing states to extend health care coverage to unborn children.

We praise the President for his bold leadership in defense of life. We praise him for signing the Born Alive Infants Protection Act. This important legislation ensures that every infant born alive including an infant who survives an abortion procedure is considered a person under federal law.

We praise Republicans in Congress for passing, with strong bipartisan support, a ban on the inhumane procedure known as partial birth abortion. And we applaud President Bush for signing legislation outlawing partial birth abortion and for vigorously defending it in the courts.

In signing the partial birth abortion ban, President Bush reminded us that "the most basic duty of government is to defend the life of the innocent. Every person, however frail or vulnerable, has a place and a purpose in this world. We affirm the inherent dignity and worth of all people. We oppose the non-consensual withholding of care or treatment because of disability, age, or infirmity, just as we oppose euthanasia and assisted suicide, which especially endanger the poor and those on the margins of society.

We support President Bushs decision to restore the Drug Enforcement Administrations policy that controlled substances shall not be used for assisted suicide. We applaud Congressional Republicans for their leadership against those abuses and their pioneering legislation to focus research and treatment resources on the alleviation of pain and the care of terminally ill patients.

And here's what the Platform says about Judges and abortion:

In the federal courts, scores of judges with activist backgrounds in the hard-left now have lifetime tenure. Recent events have made it clear that these judges threaten Americas dearest institutions and our very way of life. In some states, activist judges are redefining the institution of marriage. The Pledge of Allegiance has already been invalidated by the courts once, and the Supreme Courts ruling has left the Pledge in danger of being struck down again not because the American people have rejected it and the values that it embodies, but because a handful of activist judges threaten to overturn commonsense and tradition. And while the vast majority of Americans support a ban on partial birth abortion, this brutal and violent practice will likely continue by judicial fiat. We believe that the self-proclaimed supremacy of these judicial activists is antithetical to the democratic ideals on which our nation was founded. President Bush has established a solid record of nominating only judges who have demonstrated respect for the Constitution and the democratic processes of our republic, and Republicans in the Senate have strongly supported those nominees. We call upon obstructionist Democrats in the Senate to abandon their unprecedented and highly irresponsible filibuster of President Bushs highly qualified judicial nominees, and to allow the Republican Party to restore respect for the law to Americas courts.

The sound principle of judicial review has turned into an intolerable presumption of judicial supremacy. A Republican Congress, working with a Republican president, will restore the separation of powers and restablish a government of law. There are different ways to achieve that goal, such as using Article III of the Constitution to limit federal court jurisdiction; for example, in instances where judges are abusing their power by banning the use of "under God" in the Pledge of Allegiance or prohibiting depictions of the Ten Commandments, and potential actions invalidating the Defense of Marriage Act (DOMA). Additionally, we condemn judicial activists and their unwarranted and unconstitutional restrictions on the free exercise of religion in the public square.

Somehow, I doubt that Tim Noah has heretofore been under the impression that the President was going to be nomination pro-choice justices.

2. Why, exactly, is this secret code so secret? The slavery/abortion analogy has been around at least since I was in law school almost 20 years ago. For those who believe that blacks and fetuses are people, the analogy is seamless. I understand that Noah does not so believe, but is it really the President's fault that someone who's job is to follow politics is ignorant of one of the most powerful arguments being made by one of the two sides of one of the most important political issues of our time?

The analogy between Roe and Dred Scott is also well-established and powerful. (Justice Taney's opinion in Dredd Scott is well-worth reading, if horrifying.) The nearest one can come to an actual holding is that Dred Scott, even if free, could not bring suit in federal court because he was the descendent of slaves imported into the United States. Taney decides, without any citation to any governing constitutional language, that slaves and their descendents could not be citizens based upon his preference for that result. The analogy to Roe is painfully clear.

3. Why else would the President mention Dred Scott? Two reasons pop to mind. First, it is entirely appropriate to note that, in choosing Supreme Court justices, he would attempt to avoid proponents of the legal philosophy used in Dred Scott and Roe.

Second, and once again, if I were Tim Noah, I wouldn't boast about not knowing this, the President might have noticed that he, his administration and his party are constantly being accused of pining for the days of Dred Scott. For example:

Jesse Jackson continues accusatory rhetoric: Compares Bush victory in Supreme Court to Dred Scott decision ("On Wednesday, Jackson clarified his earlier statement, saying, "When the Supreme Court issues a ruling calculated to deal a setback to the causes of civil rights in this country, the people respond." He compared the 5-4 decision to the 1857 Dred Scott case in which the court ordered Scott, who had petitioned for freedom, to remain a slave. Jackson also compared the pro-Bush decision to Plessy v. Ferguson, in which the court made its historic "separate but equal" declaration."); Scalia's view likened to slavery ruling: His anti-sodomy dissent echoed reasoning given in the Dred Scott case in 1857, some scholars say; Dred Scott, Revisited: Decision in redistricting case maintains a dismal Texas tradition.

Posted by: David Cohen at October 12, 2004 10:27 PM

What's tough to understand? In Dred Scot some categories of person are in fact sub-human and without rights in relation to other persons with rights. The logic is the same as Roe, regardless of the mental gymnastics used in it's justification. Some persons have rights which trump the basic rights of others, whether so-called rights to property or reproduction. Simply put, slaves and pre-born children are not human beings.

Posted by: Tom C, Stamford,Ct. at October 13, 2004 10:45 AM

Might wanna try closing both the <a> and <i > tags ....

Posted by: Jeff Brokaw at October 13, 2004 10:53 AM

David,

2. Why, exactly, is this secret code so secret?

Obviously because most people have ZERO familiarity with the Dred Scott case and how it applies to Roe v Wade. In the context of a question about appointing Supreme Court judges, it was a stupid answer which scares the heck out of people and doesn't help him get elected. It gives the other side gasoline and a match to throw on Bush. Let the backlash begin.

Posted by: Perry at October 13, 2004 2:07 PM

I also might add, the President himself, took it nice and slow in making sure he got it out on the right side; (mental bubble goes here), "let me see... am I for the decision or for over turning it??, oh yea now I know...as I was saying...

Posted by: Perry at October 13, 2004 2:17 PM

Perry:

Bush said the hosanna words for the Right: strict constructionist. That may scare Norman Lear, Pat Leahy, and Kate Michelman, but the average person has no idea what it means. And Jesse Jackson just can't scare the black community any more - too much time has past since the 1960s.

To the extent that people think about it, knowing that a "strict constructionist" will not overturn the Pledge and will probably vote against flag burning and will defend property rights - that is enough. Remember, the more Kerry talks about this issue, the worse it is for him (just like his debate answer on abortion).

All Bush really has to do is point out that 'liberals' are trying to get their policies enforced by a court because they can't get them passed through legislatures. Let Kerry twist himself trying to overturn the state votes on gay marriage (which will all be 70-30 against, or higher).

Posted by: jim hamlen at October 13, 2004 2:21 PM

Jim,

Your answer would have been a good one for Bush to give, unfortunely by bring up Dred scott, he gave the left a solid week to propogate their secret message spin, and to scare people as they have successfully framed Bushes answer as an abortion issue answer and not a constructionist_or_not answer. Appealing to the base is not how Bush should answer that question, get the ones in the middle and don't scare off libertarian minded folks. S#%t, I might not vote for him after that answer.

Posted by: Perry at October 13, 2004 2:32 PM

Perry: The country agrees with Bush on abortion.

Posted by: David Cohen at October 13, 2004 10:18 PM
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