The Newer Stygius Blog

I recently made a bunch of aesthetic changes to my Typepad blog, trying to improve it visually.

I've also added several feed aggregator options along with a site searchbar.

After a needed break, I'm again writing at my other blog.

[NOTE: I've decided to cross-post this from my other blog, because I think it is an important issue even though it is flying under the radar in the press.]

Okay. Just this one last post to clearly put down why I think Bush referred to the Dred Scott v. Sanford (1857) case last night when discussing "litmus tests" and judicial appointments. I think there needs to be a lot more discussion of this around the country. Last night I wrote:

Bush will probably spend the next few days having to live down his utterly bizarre commentary on judicial appointments. He was obviously prepped to deliver the reply, but it made no sense whatsoever--at least on the surface. Saying he wouldn't appoint judges who supported the Dred Scott v. Stanford reasoning was one of the weirdest things I've ever heard. It was so strange. Of course Bush wasn't answering spontaneously; that's not what he does, after all. So what was the motivation of having this mid-1800s, pre-Civil War case cited as Bush's litmus test for judicial appointment? The Dred Scott case was an 1857 Supreme Court opinion that legitimized the ownership of slaves, denied that freed slaves enjoyed the "privileges and immunities" of citizenship, and argued slave owners' Fifth Amendment due process rights were violated by individual states' outlaw of slavery. Why does this case play a role in George Bush's Supreme Court litmus test?

I thought about it a bit, and decided that it was probably a ham-handed code for pro-lifers' benefit. This should definitely be decoded though, which probably requires some more research into pro-life circles, but I wonder if this citation was meant to refer in code to the status of the unborn versus the rights of the mother. Giving the unborn autonomous rights and protections, and denying that carrying mothers have rights--protected by the due process clauses in the Constitution--over the children they carry would seem to have some tangential relationship to the President's bold rejection of the idea that humans can be considered property. Why was Bush obviously prepared with this answer? Since the Thirteenth and Fourteenth Amendments settled this debate in the 1860s, for crying out loud, what is the point of bringing this up? Why else would George Bush be bravely taking a stand in favor of the abolition of slavery? It's my guess that Bush is sending an implicit, unspoken signal about what his judicial litmus test really is, and that any Supreme Court nominee from a second Bush Administration would thus have to categorically reject Roe v. Wade, and the rights of women to determine their reproductive rights. Of course he won't come out and say it, though. Charming, eh?

I initially added these parts as "Updates" to that post, but they just made it too darn long, and I think this issue deserves its own post:

UPDATE 1: Here is the passage, so pregnant with various meanings and assumptions, from the debate transcript:

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. 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. [My emph. - Stygius]

UPDATE 2: (*Sigh* I just can't let it go.) This site makes the association as clear as it can. This NRLC page does some selective textual comparison. Read this interesting speech by former Pennsylvania Gov. Robert P. Casey. He is the Casey of Planned Parenthood of Southeastern Pennsylvania v. Casey fame. This passage uses Lincoln to outline Casey's view of the relationship between judicial authority and legal obligation of the people:

In his first Inaugural Address, Abraham Lincoln, in referring to the Dred Scott case, expressed the view that the other officers of the government could not be obligated to accept any new laws created by the Court unless they, too, were persuaded by the force of the Court's reasoning. Any other position would mean, in his view, that "the policies of the government upon vital questions, affecting the whole people [could] be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between two parties, in personal actions." If that were to occur, said Lincoln, "the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal."

After much thought and reflection since 1987, I must confess that I am more and more persuaded that Lincoln's view should be the standard for pro-life elected officials in 1993 and beyond.

One-hundred and thirty-six years ago, a human being was declared a piece of property, literally led off in chains as people of good conscience sat paralyzed by the ruling of the court. [The Dred Scott decision]

The other time was January 22, 1973. An entire class of human beings was excluded from the protection of the state, their fate declared a "private" matter.

UPDATE 3: This Charlotte Observer article begins to explore some of the tension and paradox in the "strict constructionist's" position, using Justice Antonin Scalia's dissent in Lawrence v. Texas and Taney's Dred Scott opinions as touchstones. My quick perusal of the Dred Scott opinion says that actually a strict constructionist, if genuinely strict, would have to agree with the opinion as written (which pre-dated the 13th, 14th, and 15th Amendments). And Scalia is of the strict constructionist school of thought. However, Scalia himself views Taney's writing as ignoring the authority of the people to resolve slavery legislatively, and criticizes the current Supreme Court for the same approach. I think this points to some irreconcilable issues in Scalia's judicalism, since strict Constitutional construction and a quasi-legislative sovereignty are often conflicting positions.

(To explore further the pro-life community's usage of the Dred Scott case, this Google Search will help you.)

The Newer Stygius Blog

The first two polls taken after Bush's convention, by Time and Newsweek, showed an immediate boost, with Kerry trailing by 11 percentage points in both -- the largest deficit either candidate has suffered in the campaign. Kerry campaign officials said their internal polls also put Bush in the lead, but by a narrower margin.

Some of Bush's gains likely will recede quickly, given the normal rhythms of presidential campaigns, but Kerry's performance in August unnerved many Democrats outside the campaign, who groused privately and sometimes publicly that the candidate needed to make a significant mid-course correction to counter Bush's gains.

New York Times: Kerry Enlisting Clinton Aides in Effort to Refocus Campaign

Former President Bill Clinton, in a 90-minute telephone conversation from his hospital room, offered John Kerry detailed advice on Saturday night on how to reinvigorate his candidacy, as Mr. Kerry enlisted more Clinton advisers to help shape his strategy and message for the remainder of the campaign.

In an expansive conversation, Mr. Clinton, who is awaiting heart surgery, told Mr. Kerry that he should move away from talking about Vietnam, which had been the central theme of his candidacy, and focus instead on drawing contrasts with President Bush on job creation and health care policies, officials with knowledge of the conversation said.

MSNBC: Striking Back: Reeling from tough attacks and bad advice, Kerry launches a counteroffensive against a resurgent president

Kerry's counteroffensive seems to fit a well-worn pattern. After a period of complacency, the senator blew his slender lead in the polls and slid into frustration and inertia, before emerging with a new fighting spirit. It happened in the Democratic primaries, when Kerry's campaign was written off well before the first votes were cast in Iowa. Could it happen again in the general election? "There is nobody, nobody, who is a better finisher than John Kerry," says one close adviser and former staffer.

LA Times: Kerry Allies Take Shots at Bush, Cheney on Vietnam

After being targeted for weeks by criticisms of his service in Vietnam and his later protests of the war, Sen. John F. Kerry looked on Saturday as a series of his supporters lambasted President Bush and Vice President Dick Cheney for avoiding combat service during those years.

Rep. Ted Strickland (D-Ohio) made the strongest attack at an evening rally here on the banks of the Ohio River, saying that Kerry "was carrying a gun through the jungles of Vietnam while George Bush was neglecting his military service and carrying out his responsibility as a cheerleader at Yale University."

IHT: Kerry is being pressed to get tougher on domestic issues

President George W. Bush roared out of his New York convention last week, leaving many Democrats nervous about the state of the presidential race and pressing Senator John Kerry to torque up what they described as a wandering and low-energy campaign.

In interviews, leading Democrats - governors, senators, fund-raisers and veteran strategists - said they had urged Kerry's campaign aides to concentrate almost exclusively on challenging Bush on domestic issues from here on out, saying he had spent too much of the summer on national security, Bush's strongest turf.

The governor reminded me of Bill Clinton and his supporters who insisted his abhorrent, wretched behavior was just a personal matter having nothing to do with the day-to-day duties of the president. Here's a news flash for those still confused about the essence of self government: Morality matters!

It matters for all public officials—policemen, firefighters, school teachers, bus drivers, inspectors, case workers, rangers, soldiers, council members, commissioners, legislators, governors, presidents—all who serve the public, all the time.

Pastor Bob, however, had actually designed this entire column as a feint directed at Colorado's own Governor, the heterosexual Bob Owens, whose marriage apparently disintegrated over the past year, and the wags say it's all a wandering Guv's fault. Here is Bill with longtime bride and Colorado's own First Lady:



The above passage is where the knife is shoved in, this next bit is where it's given a quick twist:

Of course every mortal suffers moral indiscretion from time to time. It is the nature of sin. No man is perfect. Offenders who are sincere in seeking forgiveness deserve to be forgiven. But some offenses are so serious that the emotional energy needed to confront the injury is simply far greater than any man's capacity to simultaneously serve in public office. If the offender doesn't understand this, he lacks crucial judgment on yet another confounding level.

And yes, the higher the public office, the greater the expectation of moral fortitude. Of presidents and governors we must demand the most.

McGreevey's indiscretions are on this higher order of magnitude. So were Bill Clinton's. [My emph. - S.]

Essentially, Bob is asking readers to make the implicit inference that Bill Owens is included in this same category, along with Bill Clinton and McGreevey. His cheap magnanimity towards sinners doesn't seem to include adulterers, since according to his reasoning they all ought to resign before they can be forgiven. In case he was being too subtle for us, he concludes his commentary on the "moral catastrophe":

People who have cheated on their spouses cannot automatically be trusted in public office. Those who have cheated on their spouses while in public office should automatically be replaced. [My emph. - S.]

How they are to be "immediately" replaced would probably get an interesting answer from Schaffer, but who knows just what he means.

So, Bob Schaffer's attempt at a fiery coup de grâce against his Governor is there in print, however feeble. It's a declaration of "You are my enemy" cloaked in piety. It also tells us that the battle for the heart and soul of Colorado's GOP didn't end on Primary Day.