Bush: I Will Nominate a Supreme Court Justice Who Will Criminalize Abortion
He didn’t say it directly, but he did use all the code words:
BUSH: I really don’t have — haven’t picked anybody yet. Plus, I want them all voting for me.I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.
Let me give you a couple of examples, I guess, of the kind of person I wouldn’t pick. 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.
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.
The first code word is “strict constructionists,” whose basic ideology is that the Constitution only applies to matters that it directly and specifically addresses, and that any interpretation beyond that is not within the court’s power; to these people, there is no such thing as “intent of the founders,” and they would judge no new law from the original intent or principles derived from the constitution. Any new law is acceptable so long as it is not directly addressed in the constitution.
As such, Bush’s remark that he wants “strict constructionists” and that the “judges interpret the Constitution” are not exactly consistent.
The right wing found strict constructionism as their legal philosophy while trying to find a way to fight Roe v. Wade; traditionally, it has been a Libertarian point of view. If one applies strict constructionism, Roe. v. Wade would be struck down, as would many other issues concerning civil rights and probably separation of church and state. This goes along with the current Republican agenda to remove power from the judicial so that conservatives in the legislative branch can pass whatever laws they wish with no challenge on their constitutionality.
Another code word from Bush’s rhetoric was the Dred Scott decision, which, for those of you who forgot about it since high school, was a rather infamous Supreme Court decision which ruled that blacks were not citizens and were constitutionally the property of the slaveholders. Dred Scott is a famously popular case held up by pro-life groups as an example of how an entire class of people can be regarded as property to be dealt with without concern for their rights. The argument is that fetuses today are like blacks at the time of Dred Scott.
Bush’s reference, therefore (as first pointed out by Paperweight), is little more than a code word meaning that he will have Roe stricken just as Dred Scott was.
Other comments on Bush’s remarks: his joke about how he would “want them [Supreme Court justices] all voting for me” was borderline at best; few have forgotten how the politically partisan 5-4 vote on Bush v. Gore–considered by many as an illegal decision at least, and a coup d’état at most–handed Bush the presidency in 2000. It’s a ballsy thing to joke about.
He also called the courts’ ruling on the Pledge of Allegiance a “personal opinion,” which is fiction, of course, but then on these matters, such fiction is standard fare for Republican politicians. The core issue of the pledge, of course, is the First Amendment and its protection that prevents the state–in this case public schools–from requiring any American citizen–in this case, schoolchildren–to make a religious pledge, and to prevent that government agency from endorsing any one belief system. It is a core constitutional matter on civil rights with very little real ambiguity (the only lack of clarity is in the GOP fiction), which is why the GOP is trying so hard to pass a law that would prevent the courts from ruling on “Pledge protection” laws without having to amend the Constitution to achieve that.
Finally, on the litmus test, Bush says that he would have “no litmus test except for how they interpret the Constitution.” However, since what he defines as “interpreting the Constitution” covers almost every major issue before the courts, he is essentially saying that he will choose a judge based upon a wide range of litmus tests, especially Roe v. Wade.


