October 10, 2004

Bush Promises That His Supreme Court Justices Will Ban Abortion

Paperwight write:

Paperwight's Fair Shot: Dred Scott = Roe v. Wade: Some people seem to be a bit boggled by Bush's Dred Scott remark last night. It wasn't about racism or slavery, or just Bush's natural incoherence. Here's what Bush actually said: "If elected to another term, I promise that I will nominate Supreme Court Justices who will overturn Roe v. Wade."

Bush couldn't say that in plain language, because it would freak out every moderate swing voter in the country, but he can say it in code, to make sure that his base will turn out for him. Anti-choice advocates have been comparing Roe v. Wade with Dred Scott v. Sandford for some time now. There is a constant drumbeat on the religious right to compare the contemporary culture war over abortion with the 19th century fight over slavery, with the anti-choicers cast in the role of the abolitionists.

Don't believe me? Here.

Further, Bush has to describe Dred Scott as about wrongheaded personal beliefs, rather than a fairly constricted constitutional interpretation because he needs to paint Roe v. Wade the same way, and he wants "strict constructionists" in the Supreme Court, so he can't really talk about the actual rationale used in Dred Scott.

I can't emphasize enough how important this is, and how much it needs to be publicized.

I had missed this. It sounds plausible. But it is also important to recognize that, as a strategic move, it didn't work.

Those who know that in right-wing legalspeak Roe=Dred are already voting for Bush.

Those who don't know saw him go incoherent.

Posted by DeLong at October 10, 2004 08:47 AM | TrackBack
Comments

Exactly right. This seems designed more to make Bush seem clever among the few people who get it that to appeal to actual voters. It was counterproductive.

Posted by: Scott at October 10, 2004 08:52 AM

Not only did it not work,

But it set GWB up to have to answer: "Do you think Roe vs. Wade is comparable to the Dred Scott decision?"

That's kind of the whole point. Bush tried to send a signal under the radar but it was caught.

Now he has to pay the penalty. If he thought the issue was a winner, he would have come out and said it.

Posted by: Julen Santos at October 10, 2004 09:14 AM

I see it as action to shore up his base. I also see it as a tad behind - he should be expending energy appealing to undecideds.

A very curious campaign. Are they THAT drunk with power that they can't see clearly?

D

Posted by: Dano at October 10, 2004 09:14 AM

Interesting...I thought it incoherent, but figured it might have some significance. I'm just not enough of a legal scholar to have read between the lines...

Posted by: tj brooks at October 10, 2004 09:31 AM

I missed it as well (see my comment in the earlier Dred Scott thread), but it does have the ring of truth.

It also fits with Rove's apparent strategy to energize the base at the expense of all other considerations. One thing I'll say for these guys, they know how to go for broke. They've set their strategery and they will follow it to the end, even if it leads over the edge of a cliff.

Posted by: jimBOB at October 10, 2004 09:34 AM

I suspect it is mostly the left that is befuddled by the Bush statement along with mainstream voters that have made up their minds. Pro-choice candidates often are less than vocal on that position because they believe other issues are more important. It is VERY important that Bush not be seen by anti-abortion voters as abandoning them and their principles.

The religious right often uses coded language and voter guides to elect candidates with stealth positions on issues. Unsuspecting voters are surprised and horrified that they have just elected a creationist to the local school board who wants to burn books and jettison sound science.

The appropriate counter to this stealth campaigning and talking in code is to shine a bright light on the issue. The mainstream press should ask the Bush campaign point blank, "Does the Bush statement about Dred Scott mean that Mr Bush will try to appoint Supreme Court justices that will overturn Roe V Wade?" It is only fair to the voters that the positions of the candidates on issues be out in the open. Kerry's position is quite clear. He will only appoint justices that will not overturn Roe V Wade. Bush is taking the opposite position and he should not be allowed to fuzzy his intentions.

Posted by: bakho at October 10, 2004 09:45 AM

Paperwright is right. Bush's strategy is: #1 rally the base and #2 divide the opposition. Coded references to Roe v. Wade serve goal #1. Publicizing what he really meant counters goal #2.

Posted by: Matt at October 10, 2004 09:53 AM

Agree with Bakho and Matt. One would think that in the hands of our sterling press corps Bush's use of cryptic historical code would naturally generate a domestic policy question for the third debate -- and a specific question at that: "Did "Dred Scott" mean "Roe v Wade?" rather than "what on earth did you mean by "Dred Scott?" We'll see about that one.

Coincidently, the Dred Scott case documents are archived at Washington University, where Friday's debate occured.

Posted by: David at October 10, 2004 10:12 AM

Sorry, Blogger doesn't support Trackback, so here you are, the punchline:

"Indeed, how many anti-abortionists will pick up the code? Next: The misunderstood barons at Runnymede."

From my entry titled Dredlok -- http://tinyurl.com/653jy

Posted by: Tom Parmenter at October 10, 2004 10:19 AM

Those who know that in right-wing legalspeak Roe=Dred are already voting for Bush.

No, this is a further indication that Rove is worried about the turnout of his base. That was a serious juicy cut of prime rib he threw out there to make sure that the fundies know that Bush will deliver the payoff they've been hungrily waiting for all these many years. So they'll be mobilizing to get out the vote. I think we should keep an eye on all the usual sites and see if this message has been understood and also that it has had the desired effect.

Posted by: Barry Freed at October 10, 2004 10:28 AM

Abortion is the paramount voting issue amongst the religious right. It could be revealed that Bush is eating babies once they are born but so long as he ensures that they are carried to term the religious right will pick Bush as their candidate. I believe that this was a message intended to energize Bush's base, probably arising from a fear that Bush is losing ground amongst the undecideds in the middle.

Posted by: Dubblblind at October 10, 2004 11:04 AM

Brad,

I think you missed the point. Anybody for whom banning abortion is a central issue is already voting for Bush. What he did was try to accomplish two things. One, he wanted to send a signal to those people who want abortion banned that said, "Yes, I am on your side," and two, while doing one, send a message to moderates that said, "Hey, I am not too conservative." This would bring out his base, which he desparately needs to do, and also not alienate potential moderate voters. He probably succeeded at both in some respects, since those who were meant to get the signal got and those who weren't were rightly baffled at what the hell he was saying.

Posted by: Brian at October 10, 2004 11:13 AM

I'm with several of the previous commenters. Everything I've read recently has said that Rove has given up on trying to appeal to the middle, and is intent on turning out the base on Election Day. Remember, Rove believes that there's a large group of evangelicals that didn't vote in 2000. He wants to get those people to the polls this time. Sending coded statements about abortion is a good way to do that. It will be interesting to see how Bush reacts if he's asked about this during the 3rd debate. I assume Rove is banking on this going over our idiot press corps' collective head.

Posted by: Rebecca Allen at October 10, 2004 11:24 AM

LOL...i like this blog...its entertaining... but i wonder...why are there so many stupid angry liberals?

Posted by: happyincalifornia at October 10, 2004 11:56 AM

Letters have to be written to major news organizations, to Bob Schieffer, who will moderate the next debate and others if we want this underwater attack on Roe vs. Wade exposed.

Please take the time to write and to get others to write.

Our "idiot press corps" can be influenced if we apply pressure.

Posted by: Julen Santos at October 10, 2004 11:56 AM

Hey happyincalifornia:

What are you talking about?

Posted by: whichway at October 10, 2004 12:04 PM

The "idiot press corps" problem is really the main thing. Bush will only pay the penalty for that remark if a reporter asks him, point blank, "Did you mean to say that you will appoint judges who will overturn Roe v. Wade?" In particular, if Bush is asked this at the 3rd debate, he's fucked among non-Evangelical middle-class women and other swing voters.

Rove is taking a huge gamble - betting that Bush will never be asked about this.

I know that people are fatigued with donations and volunteering and whatever else, but it might really be helpful to try to put some pressure on some media outlets to ask Bush about this.

Maybe Brad and some other influential bloggers could try to get some kind of effort going?

Posted by: El Gringo Loco at October 10, 2004 12:08 PM

Interesting, I know there had to be something more to the answer than the incoherence or a poor-taste comparison to slavery.

Posted by: BV at October 10, 2004 12:09 PM

Better question for Bush: Is Dred Scott the most recent case in which the SCOTUS overstepped, in your opinion?

Posted by: son volt at October 10, 2004 12:40 PM

"A very curious campaign. Are they THAT drunk with power that they can't see clearly?"

I see it as more sinister. Of course Bush has this base locked. The question is how fervent, how committed, how far will they go for him when the chips are down? This "code" is exactly like the little fishes drawn in the dirt of the catacombs. Exactly, in that it reminds them of that time, and allows them to see themselves in that role. This is the Left Behind crowd. Bush needs them committed unto death and destruction, shock troops, he may need martyrs. Because he is not giving up the Presidency.

Bushco sees very clearly. I think it is the opposition who are delusional.

Posted by: bob mcmanus at October 10, 2004 12:51 PM

whichway:

"Bush will only pay the penalty for that remark if a reporter asks him, point blank, "Did you mean to say that you will appoint judges who will overturn Roe v. Wade?" In particular, if Bush is asked this at the 3rd debate, he's fucked among non-Evangelical middle-class women and other swing voters."

Not at all. That's a softball. The answer is "I won't have a litmus test. I'll appoint strict constructionists."

Any given fundie voter only has to hear the "Dred Scott" code once. That signals him that Bush means the right thing by "strict constructionist". "No litmus test" re-assures the middle and doesn't bother the fundies.

Bush/Rove. Don't misunderestimate.

BV:

"Better question for Bush: Is Dred Scott the most recent case in which the SCOTUS overstepped, in your opinion?"

Flag-burning, if he doesn't want to go with pledge of allegiance again.

Posted by: David Tomlin at October 10, 2004 01:13 PM

My guess that this was furnished to Karl Rove by his good friends Deal Hudson and Michael Novak. It's been a standard meme among conservative Catholic intellectuals since at least 1976 - I remember reading it about then in the pages of , a weekly Catholic newspaper devoted to lamenting the decline and fall of absolutely everything good in the world as a result of modernism.

Posted by: bellatrys at October 10, 2004 01:35 PM

After seeing Angry Dear Leader snap at the moderator in Round 2, it's hard to imagine gentle Bob holding his lying feet to the fire. Neither candidate will answer questions they wish to avoid.

But we do hope Bob burns some hardball questions to the candidates. That's where the moments of truth emerge. Dear Leader Caught In The Headlights Panicking As The Blood Drains From His Face vs. Elder Statesman Kerry.

Posted by: Liz at October 10, 2004 01:41 PM

I wish you were right, Brad, that it "didn't work." But you are wrong. The message passed underneath the attention of everyone in middle or on left in America but reached the right. It was aimed at instigating turn-out, which is how the election will be won. It is not true that everyone who might vote for Bush will bestir themselves to vote; same point on Kerry side. Moreover, Bush's base has gradually lost confidence in its leader. The "secret" message to them definitely will reach them and it may have its desired effect. The antidote is to scream at top of the media hill the threat to women's rights that Bush represents.

Posted by: rod at October 10, 2004 01:45 PM

I wish you were right, Brad, that it "didn't work." But you are wrong. The message passed underneath the attention of everyone in middle or on left in America but reached the right. It was aimed at instigating turn-out, which is how the election will be won. It is not true that everyone who might vote for Bush will bestir themselves to vote; same point on Kerry side. Moreover, Bush's base has gradually lost confidence in its leader. The "secret" message to them definitely will reach them and it may have its desired effect. The antidote is to scream at top of the media hill the threat to women's rights that Bush represents.

Posted by: rod at October 10, 2004 01:45 PM

I agree with David. His base knows what he said, what it means, so why would Bush team risk further distance from the middle by answering with anything other than no? Plus, plausible as this code word scenario might be to the readers of this blog (including myself), there is something a little kooky about the whole thing. 140 year old slavery decision is coded message meaning outlaw abortion, but only the true believers will find the true meaning? FOX would eat that shit up, there'd be nothing but talk of yet another example of "liberal media bias."

It was a good move by Rove. Infuriating, maybe, but that certainly doesn't make it a bad decision.

Posted by: Van at October 10, 2004 01:49 PM

David Neiwert has a long post discussing the implications of "legal formalism" and suggests that it goes far beyond Roe v. Wade:


http://dneiwert.blogspot.com/2004_10_03_dneiwert_archive.html#109735947651474418

BTW, what's the markup for making a link in the comments?

Posted by: Steve at October 10, 2004 01:57 PM

Yes, this is a code word for his base, but Kerry people should use it too by putting it in Roe terms so that moderate repubs can swing our way.
Kerry campaign should say:
"If elected to another term, Bush has promised that he will nominate Supreme Court Justices who will overturn Roe v. Wade."

Posted by: ecoast at October 10, 2004 01:57 PM

So, what is democracy, really?

The Republicans are very fond of appealing to popular opinion as the source of legitimacy--where they think they can have it, or can get it by spending a few $spillion.

Then, on the other hand, there are the situations in which "democracy" is a code word for unregulated capitalism. Even this is justified in terms of the immense, and justly popular, benefits that would flow from such an experiment. (Never mind that, as the past four years have shown, when the business community is invited to submit their wish list, the only thing on it is the creation of a labor surplus.)

But finally you have this kind of thing, where, if 99% of the people thought abortion was fine, they would all still be wrong; and the only way to do the right thing is to somehow sneak it past the majority. Ordinarily no effort is even made to couch this in populist or majoritarian terms; it is more or less conceded up front that issues such as these are ones where a minority viewpoint has to be imposed, because the minority has an elite understanding of moral absolutes.

So: what IS democracy? What ought it to be? Is it a good thing as it is? Would it be a good thing as it ought to be? These questions ought to be asked, if only because pretty nearly no one would like the answers.

Posted by: Frank Wilhoit at October 10, 2004 02:04 PM

ecoast- The problem is he didn't say that, at least not in those words. And if Kerry campaign offers up the codeword scenario, they will be laughed off the stage. Bush campaign gets to claim Kerry is delusional, a liar, or both. If this codeword theory is correct, then the whole purpose of bringing up Dred Scott was to avoid saying overturn Roe v Wade. Why, why would Bush campaign suddenly change their minds? They have demonstrated repeatedly that they have no aversion to lying. Why would they start telling the truth now, on this issue?

Posted by: Van at October 10, 2004 02:08 PM

Several posters have said that this should be reframed in terms of overturning Roe v. Wade, but it's more than that. This is not about taking away a guaranteed Federal right to an abortion only. This would not mean leaving it up to the states. This would mean that abortion itself would be rendered unconstitutional.

Posted by: Abby at October 10, 2004 02:33 PM

Steve: text

Posted by: Anderson at October 10, 2004 03:25 PM

Nobody should ask Bush anything about this; of course his answer will be a lie. Democrats should just take a tip from the Republican campaign book and declare what it is that Bush will do -- he will seek to appoint right wing crazy judges to overturn a woman's right to choose. If Bush denies it -- ignore his denial as the obvious lie that it is, and restate that he will appoint . . . wash, rinse, repeat.

About Bush's record: ask -- then people have a basis for seeing how he lies. About his plans: don't ask -- tell.

Posted by: TomR at October 10, 2004 03:33 PM

"I had missed this. It sounds plausible. But it is also important to recognize that, as a strategic move, it didn't work.... Those who know that in right-wing legalspeak Roe=Dred are already voting for Bush....Those who don't know saw him go incoherent."

While I normally agree with you, in this case I'm afraid you have it exactly backward. Conservative fundamentalists have gotten used to having Bush in the Whitehouse, and they don't want their vote taken for granted. If Bush doesn't throw them something like this, they may stay home on election day. On the other hand, anyone who would be bothered by "incoherence" has long ago abandoned Bush.

--Rick Taylor

Posted by: Rick Taylor at October 10, 2004 03:37 PM

"My guess that this was furnished to Karl Rove by his good friends Deal Hudson and Michael Novak. It's been a standard meme among conservative Catholic intellectuals since at least 1976 - I remember reading it about then in the pages of , a weekly Catholic newspaper devoted to lamenting the decline and fall of absolutely everything good in the world as a result of modernism."

What weekly are you talking about? Crisis? Latin Mass Magazine? The Wanderer?

Anyway, as far as the rest of this thread goes, the conservatives are correct that there's no *constitutional* right to have an abortion (show me where it is). So appointing a judge who would overturn Roe v. Wade would actually be prudent, if not politically popular.

Besides, I never understood how anyone could be so convinced that killing unborn babies is a fundamental human right.

Posted by: Inquisitor Generalis at October 10, 2004 04:56 PM

The Constitution incorporates the common law at the time of the Founding. Abortion was not a common law crime. And a fetus was not considered a legal person. Not in criminal, tort or property law.

Posted by: Roger Bigod at October 10, 2004 06:35 PM

Even if that's true, I don't see how it would make laws banning abortion unconstitutional.

Posted by: Inquisitor Generalis at October 10, 2004 08:20 PM

Nah. Read all the comments. It is perfectly true that the Roe/Dred Scott formulation dates back to the mid 1970s. But there's no reason to revisit it.

I think he just ought to be asked his views on Plessy v. Ferguson, since he's so full of information on 19th century SCOTUS rulings.

Posted by: Anita Jensen at October 10, 2004 10:27 PM

I think it's a mistake to conclude it didn't work. Not all pro-life voters are necessarily voting for Bush. There's a lot to consider besides that, and it isn't a litmus test for those folks.

Second, Rove is very good at these encapsulated "mini-messages". He wraps an energizing message to a small block inside something that is at least palatable to mainstream voters. Dred Scott was a bad decision, who would argue with that? But it's a wink and a nod to those "in the know" Very powerfully energizing.

Another example of the "mini-message" and insight into how Rove slices and dices the electorate is that during earlier elections, Bush insisted on framing racial profiling as profiling of Arab-Americans. As a result, he got 75% of the Arab-American votes. But since he was talking about racial profiling, that's a palatable message to the electorate at large.

Finally, Rove's whole strategy for this election is to energize the base. Rove does not believe that Bush *can* reach out to undecideds. I think that's the reason for the restrictions on Bush's campaign appearances. But Rove also know that an overt pro-life campaign is a political loser, so he doesn't ever want the issue to be raised overtly. Since in the debates, the candidates cannot question each other directly, Bush will never be challenged with, "Do you put Dred Scott in the same category as Roe v. Wade"?

All in all, pretty effective. On the other hand, Kerry has been pretty good at getting under Bush's skin and making him look like the out-of-his-depth lightweight that he is. But I doubt that he'll ever get Bush to address such a question.

Posted by: Jay Gischer at October 11, 2004 09:28 AM

Kerry needs to make the case that "Strict constructionism" is anti-choice.

Strict constructionists want to overturn "Roe v. Wade". "Roe v. Wade" found that a "right to privacy" inherent in the Constitution requires a women's right to choose. Strict constructionists do have a point. Although the courts's trimester based ruling is a good pragmatic solution, it is hard to argue how the trimester analysis is derived from the constitution.

Kerry needs to come up with his own code words
(i.e. "Judges who will ensure the rights of individual Americans"). "Respect for precedent" is a good thing to talk about at confirmation hearings.

I still don't know what Kerry meant when he said "I want to make sure we have judges who interpret the Constitution of the United States according to the law."

Posted by: Joe O at October 11, 2004 09:54 AM

Roe can be viewed as strict constructionist in the sense of applying the state of the law at the time of the Founding, although it is of course not dependent on construeing a particular word or passage. As Blackmun's recital of the history makes clear, abortion wasn't a crime at the time, neither in common law or by statute in almost all jurisdictions. Rehnquist's dissent includes a long list of state statutes, all from the Nineteenth Century. He thinks the antiquity of these laws is an arguing point. But if there were nonenumerated rights at the time of the founding, those laws are just as invalid as the ones overturned in Roe.

As Blackmun mentions, there is some early case law crimining abortion in late pregnancy. This may relate to medieval speculation, mentioned by Aquinas, that the soul is implanted in the body only around the time of the quickening, and that before that tme the fetus has the status of an animal. Aquinas disapproved of abortion as a misuse of the sexual function, not as an act of murder. This may have led to Blackmun's gradations of a pregnant woman's rights, but the trimester scheme is a big flaw in the decision.

The background sociology is that in the Enlightenment, sexual behavior was a private matter. In the Victorian period, governments became more intrusive. Much of the legislation could be rationalized as providing for public health, fostering stable marriages, etc. But it included laws like the ridiculous one overturned in Griswold.

One constant is that these laws are attempts to regulate sexual behavior, and the life of the fetus is a pretext. If the antiabortionsts were honest, they would propose trying the woman for murder. And since it is clearly premeditated, and they tend to be advocates of the death penalty, we would have many more executions.

Posted by: Roger Bigod at October 11, 2004 11:33 AM

Bush also made the statement that there will be no Federal funding for abortion. This seems to be news to me, as I was not aware of any existing statutory restrictions as such.

Posted by: Bob H at October 11, 2004 12:07 PM

"If the antiabortionsts were honest, they would propose trying the woman for murder. And since it is clearly premeditated, and they tend to be advocates of the death penalty, we would have many more executions."

What's wrong w/trying both the woman and the doctor for murder? Also, the death penalty is certainly warranted for such a crime. I propose burning at the stake.

Posted by: Inquisitor Generalis at October 11, 2004 05:11 PM

When Bush used a slavery issue to compare with abortion issues, it was the value of human life that was at the core of his arguement. the baby in the mothers womb is not personal property in which has no rights under our constitution. the baby will not share its mothers blood, maybe not even her sex, hair color, ext... it only relies on her for nurishment and for protection. every one knows pro-choice is always no choice for the baby. Maybe if we had informed conscent being practiced at abortion clinics this wouldn't even be an issue. its all about protecting human life.

Posted by: mike mcdonald at November 2, 2004 10:47 AM

When Bush used a slavery issue to compare with abortion issues, it was the value of human life that was at the core of his arguement. the baby in the mothers womb is not personal property in which has no rights under our constitution. the baby will not share its mothers blood, maybe not even her sex, hair color, ext... it only relies on her for nurishment and for protection. every one knows pro-choice is always no choice for the baby. Maybe if we had informed conscent being practiced at abortion clinics this wouldn't even be an issue. its all about protecting human life.

Posted by: mike mcdonald at November 2, 2004 10:48 AM

When Bush used a slavery issue to compare with abortion issues, it was the value of human life that was at the core of his arguement. the baby in the mothers womb is not personal property in which has no rights under our constitution. the baby will not share its mothers blood, maybe not even her sex, hair color, ext... it only relies on her for nurishment and for protection. every one knows pro-choice is always no choice for the baby. Maybe if we had informed conscent being practiced at abortion clinics this wouldn't even be an issue. its all about protecting human life.

Posted by: mike mcdonald at November 2, 2004 10:49 AM

When Bush used a slavery issue to compare with abortion issues, it was the value of human life that was at the core of his arguement. the baby in the mothers womb is not personal property in which has no rights under our constitution. the baby will not share its mothers blood, maybe not even her sex, hair color, ext... it only relies on her for nurishment and for protection. every one knows pro-choice is always no choice for the baby. Maybe if we had informed conscent being practiced at abortion clinics this wouldn't even be an issue. its all about protecting human life.

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