Saturday, October 09, 2004

Debate detritus (you're familiar with that site, aren't you, Mr. Vice President) clears up the great timber debate of '04. They would seem to be the source for Kerry's contention that the president qualifies as a small business owner. And Slate has a couple of articles about the debate, one giving the clear advantage to Bush and the other leaning closer to Kerry, nonetheless noting that Kerry seemed adrift answering some domestic policy questions. The second piece reminded me of Bush's weird reference to the Dred Scott decision as an example of the damage that activitist judges can do. Without doing any actual research, it seems to me that the Supreme Court justices could have arrived at that decision by being the strict constructionist Bush praises, seeing as how the Constitution at that time classified blacks as three-fifths of a person. The Constitution was ultimately amended, after a little thing called the Civil War.


Anonymous Anonymous said...

The Kerry gaffe about the timber company was just butt stupid. The DNC will spends hundreds of millions of dollars this year on a campaign Kerry has been working on for six years! They didn't even bother to fact-check simple public records on Texas corporations tied to Bush's released tax filings?

You know Kerry was waiting to hit him with it, but going to an internet site, even as good as Factcheck, isn't where you stop your research. Now, Factcheck has a correction on its page, but two minutes on a public database would have given a Kerry intern more information than that.

That answer, in microcosm, shows everthing that's wrong with the Kerry. Thanks, Iowa!

By the way, shouldn't the public have a right to know what Mrs. Kerry earns? Where are her sacred cows? And would the putative president cut her or her trusts any favors?

3:08 PM

Anonymous Anonymous said...

Oh, the burden of history. J, I don't want to put words into W's mouth (words he most assuredly would mangle), but I'll make a case for what he was saying.

You spatchcock the "strict" Constitutionalists (of which, I assume, you mean justices such as Scalia and, to a lesser extent, the chief justice), and give them the nod of Bushy assent.

But in this case, I think you're forgetting the most important POLITICAL result of Dred Scott, which was the nullification of the Missouri Compromise. In this case, Bush isn't addressing the a key issue of whether a slave has the right to petition for freedom from bondage in a circuit court that includes a free state (because this issue, as you pointed out, was solved by Constitutional amendments).

Rather, as a statesman, he is pointing out that the majority of the court used Scott to axe a carefully designed system of adding free and slave states to the union, and building an interlocking series of laws that would bind conduct by the chattel holders, the slaves and the state governments.

The end of the Missouri Compromise largely ended the fiction of 3/4 free, of course, but also precipitated the looming civil war. Without the mechanism for a political solution codified by law, the federal government had no ability to deal with a major problem (the extension of slavery).

In this sense, Lincoln's election in 1860 was NOT a mandate to "free the slaves," but rather a push to re-federalize a political solution to the extension of slavery. In sum, a popular mandate in the free states to return to the Missouri Compromise.

You must understand that a "strict" interpretation of the Constitution -- and here I'll bring in Scalia's central thoughts -- does NOT mean that you disregard statute. In fact, Scalia would argue that the elasticity of the constitution is guaranteed by legislation created and passed by representatives of the people. Let's be very clear here: Statute, not court fiat, is what drives the mechanism of government in Scalia's world. If you want to change the laws, change the statutes that frame them.

This runs throughout his thinking. Let me give you two recent examples. In the Guantamano cases, Scalia presented a somewhat dissenting opinion that was, ironically, in favor of granting rights to the incarcerated (you don't see many of those "I agree with the appealing party, but" decisions).

He believed the suspected terrorists could NOT be held as such without supporting legislation that was backed by the full force of constitutional protections. His remedy was for Congress to create legislation that took into account these sorts of prisoners. Without that legislation, the court had to act.

In the sodomy case from Georgia, Scalia took the same point, arguing that it wasn't an issue to him if adults engaged in consensual intercourse. Rather, his point was that the mechanism for change shouldn't come from a federal court, but through legislative changes within those states.

I'm not torturing logic to say that Bush sees the world much like Scalia, and they both see Dred the same way. Both would deplore the lack of constitutional protection of court redress to a former slave in free territory because there was legislation that guaranteed that in the Missouri Compromise.

As a federal lawmaker, Bush also would have a problem with a court blundering away from the will of Congress and the President to affect changes. Please remember he was speaking in Missouri, where school children are taught about all the implications of the Scott decision, and so his words carried different weight there.

Some believe Bush is pandering to his base with the proposed amendment to ban gay marriage (a sop if there ever was one because there aren't enough votes in the Senate to get it started). But it's also the way Bush sees as best to prevent a looming fight between the states over the full faith and credit of their laws. It's hard to imagine Missourians (his audience in this debate) accepting gay marriage certificates from blue New England states, and in fact MO recently and overwhelmingly adopted an amendment to the state's constitution banning just that.

By the way, Scalia would not see similar civil rights cases by the court in the same way as Scott. Case in point: Brown v. Board of Education. Scalia has written (and cited in other decisions) how steeped this case was in federal writ. There had been a body of constitutional and enabling federal legislation over the years that removed the "separate but equal" rights of states since Plessy v. Ferguson.

To Scalia, it all caught up in the Brown decision, and there was plenty of supporting legislation that guaranteed federal control over the issue, which was one of de facto inequality that gave a lie to the right of separateness.

Thank you, Anonymous Guy.

You're welcome, J.

11:07 AM

Blogger Jonathan Potts said...

I don't know what I--or the rest of my readers--would do without you. I suppose we'd labor in ignorance for the rest of our lives.

Putting words into the president's mouth? Putting thoughts into his head, more like it.

1:11 PM

Anonymous Anonymous said...

My job isn't to put thoughts into the president's head. It's to suggest to your, and your readers, that there are complexities beyond a president's pointed comment about Dred Scott. Unless you think he said it for no reason, which I don't believe. I think he's actually studied Dred Scott (he reads history and biography, much like Clinton did, or so we're told).

My hunch: He was reading a biography about Lincoln, and problems with the Supreme Court piqued his interest (for obvious reasons). You must remember that Bush is reading the book differently than you or I would. He's reading it as a statesman who has been called upon to solve problems. The death of the Missouri Compromise became a big problem for the presidents after the Scott decision leading up to Lincoln.

But we all do that. We're reading something of historical interest, and we force it into the confines of our own contemporary political world.

5:24 PM

Blogger Jonathan Potts said...

I guess that I and a lot of others might not be making fun of the Dred Scott reference were it not for the fact that the president seemed halting and hesitant as he brought it up. Now, he could have forgotten momentarily what he wanted to say, which is understandable (frankly, I'm amazed at the powers of recall that any candidate for president displays during a debate); he wasn't sure if he wanted to say it; or he wasn't sure what he was talking about. Either way, any example of a flawed judicial precedent that calls for the average person to consult a constitutional law book may not be the most effective choice.

It's also possible, as a friend noted, that it was a vieled abortion reference. I've heard that John Ashcroft as of late has been comparing Roe v. Wade to Dred Scott (in some ways, a valid analogy, in terms of the political consequences it wrought) and certainly, the pro-life movement for years has compared itself to the abolitionists. Politicians as adept as Bush know how to appeal to the religious right without the rest of us knowing.

Again, that's a possibility, not the likeliest explanation.

5:34 PM

Anonymous Anonymous said...

Again, Dred Scott is a case that's discussed among the more conservative legal minds in this country. It's seen as a decision reached by an "activist" court from another era, a court that turned three decades of legislative work on its head and precipitated a civil war.

Perhaps the problem here is that you believe George W. Bush isn't intellectually sound enough to make that argument, a polemic he didn't make, perhaps, because he was near the end of his mandated 90-second answer.

A fuller debate would have asked more probing questions about his judicial philosophy. That said, Bush's Dred Scott reference piqued my interest (perhaps because I've studied the case in post-graduate work), and it was better than Kerry's half-baked Potter reference, which said nothing but suggested, maybe (who knows with Kerry) that he favored a moderate nominee for a vacant spot on the highest court.

Since selecting a Supreme Court judge is one of the most important jobs of a president, maybe Charlie Gibson could have used a few extra seconds of his precious time to expand upon the answer.

I happen to be a big fan of another Charlie, Charlie Rose, and I can't help but think had Bush said "Dred Scott," his eyebrows would've arched and he would've asked him, "Mr. President, that's an odd case. Why Dred Scott?"

I, personally, don't think it's such an odd case to mention because it's a central topic to the conservative judicial analysts I'm sure Bush favors.

Again, I'm not a big fan of Bush, and his father gave us Clarence Thomas (Bork looks pretty good now, doesn't he?). I can live with Clinton's choices (choices made because a conservative Congress wasn't going to truck anything too leftie).

Personally, I like reading the decisions from the Ninth Circuit, although I imagine Bush doesn't.

5:51 PM

Blogger Jonathan Potts said...

There's a good essay in the Atlantic this month that said we can look forward to a future of bland nominees, thanks to how partisant the nomination process has become. The writer argued that we're unlikely to ever get a justice as conservative as Scalia or as liberal as the late William Brennan ever again, and that's a shame, because those "extreme" voices are important. I agree.

But let's face it--the phrase "strict constructionist" is indeed a code phrase that conservative politicians use to criticize, without naming them, cases like Roe. v. Wade.

6:10 PM

Anonymous Anonymous said...

Except when justices tagged with that label move to the center on subsequent decisions, such as O'Connor. Wasn't she named by Reagan to be the woman's voice to end Roe v. Wade? And didn't she move to the center, and keep it constitutional?

You know, I really dislike the label "conservative" when it comes to Scalia, partly because he's such an unconventional theorist. He really couches his reading of law on early texts, from Magna Carta to The Federalist Papers. He's a joy to read because he delves into the earliest roots of the common law.

Sometimes, this leads to shockingly "conservative" or "reactionary" opinions. But other times the work buttresses a very strong committment to civil liberties inherent in the Anglo-Irish-American judicial systems. I loved reading his Guantamano dissent-as-assent. Just brilliant.

Say whatever you want about him, he's a plus on this court, unlike Clarence Thomas, who adds nothing to the mix other than a pro-White House posture that befits a lawyer who spent much of his formative years killing judicial action at OCR.

11:24 AM

Blogger Jonathan Potts said...

Actually, while I don't believe the president is dumb, I do believe he is mentally lazy and like his father has a contempt for intellectuals. But I also think he's too savvy politically to waste his time with an argument geared to "conservative legal minds." I think he was aiming at the rank-and-file of his conservative base, and I think the abortion argument has more merit than I gave it credit initially.

12:23 PM


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