Breaking Political Stories and Commentary. "We're at the height of the Roman Empire for the Republican Party, but the tide slowly but surely goes out." --Republican US Senator Lindsey Graham, South Carolina
This is an excerpt from a short Dahlia Lithwick piece at Slate. Basically, the essay touches on two points: (1) Bush appealed to his base when he talked about the Supreme Court and (2) it makes more sense to look at Bush and Kerry's records than to engage in dreaming up scare stories about what they will do.

That Bush appealed to his base is part of Bush, and Karl Rove's, general strategy for this election. Rove think that there are more votes in turning out the conservative base than by trying to appeal centrist voters. Rove is fairly open about this, and even in swing states, Bush tends to visit conservative regions, while Kerry visits swing regions of these swing states. Kerry's strategists may believe there simply aren't enough liberal votes to attempt to mirror Rove's strategy.

Regarding the record, you can read what Lithwick writes -- it's clear while Bush has never said he'd reverse Roe v. Wade, he would almost certainly appoint judges who would. There's also the interesting fact -- in the full article, but not in this snippet -- that Kerry voted to confirm the appointment of conservative Antonin Scalia.
Nothing riles [Bush's] base up more than abortion. That's why Bush's answer to the Supreme Court appointments question in the second debate referenced the Dred Scott decision as emblematic of "activist" judging. (There Bush stood … casting about wildly for the most activist Supreme Court decision he could find, and then it came to him: Bush v. Gore! "Wait! Can't say that … think of another case, any case ... ") Dred Scott actually represented something quite the opposite of judicial activism. That case was a good example of "originalist" interpretation or "strict construction." And as Timothy Noah observed, the only other explanation for the Dred Scott reference was that it was code for: "Bad decisions must be overturned, and Roe v Wade is going down!"

Bush's judicial-activism cry triggered a whole slew of scary court stories: anti-Bush stories about how Clarence Thomas has never met a precedent he's unwilling to reverse (twinned with the rumor that Thomas would be Bush's choice for chief justice) and anti-Kerry stories about the how Democrats live only to legislate through the courts. Now, in a double-reverse twist, there are scary court stories defending judicial activism, scary stories defending the new judicial activism (i.e., the mind-boggling insistence that overturning Roe wouldn't really be activism), and scary court stories suggesting that you can't even tell the old activists from the new activists anymore, anyhow.


We can also learn an awful lot from Bush's 200-some choices for the lower federal courts—and this is really what we should all be talking about. If you're looking for a litmus test, look here: According to NARAL, only two among the more than 200 candidates nominated by Bush have a public record showing even the slightest favor for abortion rights. The number of his appointees who worked for pro-life groups is not insignificant.

It's worth talking about the fact that Bush appointees to the lower federal courts include people like Jay Bybee—author of one of the infamous Justice Department "torture memos" (suggesting torture as a permissible interrogation technique, accepted U.S. and international law notwithstanding). He also continues to promote Priscilla Owen, a Texas Supreme Court justice, whose refusal to grant minors a parental bypass in abortion cases prompted her then-colleague on the bench to describe her position on an abortion case as "an unconscionable act of judicial activism." That colleague was Bush's current White House counsel, Alberto Gonzales. Another winner from Bush's judicial nominees? Leon Holmes, who opposes abortion, even for rape victims, based on his own statistical certainty that "conceptions from rape occur with approximately the same frequency as snowfall in Miami."

on Oct 20, 2004
Ah, nevermind.