Professor Bainbridge is trying very hard to convince us that George
W. Bush is breaking a promise to appoint a “strict constructionist”
to the Supreme Court. Steve’s post comes in response to the argument
from Hugh Hewitt (which Powerline‘s Paul Mirengoff found persuasive)
that:
“When Bush said “like Scalia or Thomas” many
people heard many things. I think it is very safe to say that
the vast majority of American voters did not hear “justices
committed to a particular theory…of textualism or originalism.”
Putting aside the naive faith it takes to believe in the strict performance
of any “promise” made in a campaign on any topic with wiggle room,
there are a number of problems with Steve’s assertions. He states:
“Whether or not Bush broke his promise doesn’t depend
on what the American people heard; it depends on what
Bush said.”
“Bush said he would appoint strict constructionists. That
is the promise he made and the fire to which his feet should
be held.”
“In other words, a justice ‘committed to a particular theory’
of strict construction would be an originalist or textualist.
In support of his conclusion that promises have been broken,
Prof. B. tells us:
1) When asked by Tim Russert in Nov. 1999 what he would
want to know about a potential justice before making an
appoint to the Supreme Court, Pres. Bush responded: “The
most primary issue — the most primary issue is will they
strictly interpret the Constitution of the United States.”
(emphasis added)
2) Pres. Bush said a couple times during the second 2004
Presidential Debate, “I would pick somebody who would
strictly interpret the Constitution of the United States.”
I don’t think President Bush’s mouthing of the term “strictly interpret”
can be interpreted as strictly as Prof. Bainbridge insists. Here are
some of my reasons:
What people “heard” is clearly important to what was
promised, as is what the President meant when he
“said” the words. As a former divorce mediator (and
settler of many visitation disputes), I can assure you
that an important promise needs to be clarified, so that
all parties know the meaning of the words being used,
and the intentions of the person making the promise.
Steve sounds a bit like a jilted spouse, who has a
verbatim litany of all the things “that jerk” promised
her before he done her wrong. The jiltee’s friends can
only shake their heads and wonder how she could
have read so much into so little.
to the cat:
“that’s complete and
utter nonsense”
who uses the phrase “the most primary issue” three
times in explaining what he wants to know about
a potential justice, is a stickler for precise language
and commands a broad and deep understanding of
constitutional law and the meaning of “strict construc-
tion.”
strict construction, mentions having “under God”
in the Pledge of Allegiance, and then — surely
well-prepped for the Presidential Debate — gives this
explanation of the Dread 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.”
Steve is, of course, absolutely sure he’s right, and even
added an update pointing to “looking for a strict constructionist” by
Ann Althouse, claiming it shows he has the better argument. But,
as Althouse said:
“So, in a sense, Bush didn’t know what he was talking
about when he pointed as Scalia as his model for a judge.
‘Strict constructionist’ is more of a politician’s term.
Are we really supposed to believe that G.W. Bush understood Justice Scalia’s distinction between textualism and strict construction, as he
explained in his1998 book A Matter of Interpretation? Scalia said (at 23):
“Textualism should not be confused with so-called strict
constructionism, a degraded form of textualism that brings
the whole philosophy into disrepute. I am not a strict
constructionist, and no one ought to be— though better
that, I suppose, than a nontextualist. A text should not
be construed strictly, and it should not be construed
leniently; it should be construed reasonably, to contain
all that it fairly means.”
In a Comment to the Bainbridge post, Beldar points out that Steve
is really straining: In parsing old transcripts, Prof. B, you’re projecting
onto non-lawyer Bush a detailed, dictionary-like knowledge of competing
metaphysical terms of legal art like “strict constructionist,” “textualist,”
and “originalist” — in order to divine his own subjective understanding
of the words you’ve quoted? The Professor replies that “If he said he was
going to appoint strict constructionists, I think we’re entitled to hold him
to the ordinary meaning of those words.” The “ordinary meaning” that
Steve has supplied us with is the definition given in Law.com‘s Legal
Dictionary — a document that I think we can all agree has never been
perused by G. W. Bush.
all through
his temper tantrum
her calm
after speaking importantly
she quickly resumes
sucking her thumb
A Presidential debate, or a conversation on Meet the Press, is
aimed at the general public — not constitutional scholars. It is plain
that the public (or the actual voting electorate) does not have a consensus
on the meaning of “strict constructionist.” Instead, I believe that the
public — like President Bush — uses the term (if at all) as a catch-
phrase or code for either “the kind of decisions I want the Court to
make” or “the kinds of decisions I do not want the Court to make or
overrule.” The President couldn’t actually say that (although he does
give examples of results he’d like to see), so he uses a phrase that
he thinks will win him support.
define: “strict constructionist”>, and it
becomes clear that those words have no
“ordinary meaning” for ordinary Americans,
nor for policy or political wonks.
Finally, Steve says: “Arguably, Bush didn’t explicitly promise to
appoint judges in the Scalia/Thomas mold, although I think that he
certainly intended people like me (and Hugh and Paul, for that
matter) to draw that inference.” But, look what then -Gov. Bush
told Tim Russert, when asked in 1999 if he’d make appointments
“similar to Scalia in their temperament and judicial outlook”:
“Well, I don’t think you’re going to find many people to
be actually similar to him. He’s an unusual man. He’s an
intellect. The reason I like him so much is I got to know
him here in Austin when he came down. He’s witty, he’s
interesting, he’s firm. There’s a lot of reasons why I like
Judge Scalia.”
That is the George Bush elected by his partisans — a man who
truly believes he can schmooze with someone, and get to be
friends, and see inside his or her heart, and conclude whether
that person will make decisions agreeable to George W. Bush.
A man who lets the head of his Vice Presidential search committee
select himself. That sounds an awful lot more like a President who
would appoint Harriet Miers, than one who would turn to a Federalist
Society wonkEsq after coming to share a deep agreement over complex
constitutional legal theories.
There are a number of ways in which Pres. Bush is quite smart,
but he likes his legal theory to fit on a bumper sticker. Steve Bainbridge
knows this. There may be many reasons for Prof. B to fight the Miers’
confirmation, but they need to be more persuasive than “But, you promised!”
she’s waited up …
to have some last words
with me
done –
the repairman tells me
any fool can do it
home from work …
the little one brings me
an empty wine bottle
from Homework (2000)
October 12, 2005
doubting promises
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