There's some comment around about Bush's reference to Dred Scott in the debates; coturnix has a good list of references at "Science and Politics". The common wisdom has become that it was "code-language," a figurative reference to Roe v. Wade. I am unconvinced. At least, the sort of framework behind it can have relevance to the Roe v. Wade, but I very much doubt that this was the primary point. The President said:
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.
Uh, 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 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 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, 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. Thank you.
The real reference, I think, is to Lincoln:
Speech on the Dred Scott Decision, particularly the latter part on the Declaration of Independence
Lincoln's First Inaugural Address, particularly on the role of the Supreme Court in interpreting the Constitution
I think this general connection - a vague connection between the Dred Scott decision and the danger of turning the Constitution over to the courts as if they were the supreme authority in the interpretation of it - would be far more familiar to Evangelicals (and others) than the (derivative) particular connection with pro-life. See here and here and here and here and here for the general idea of what's involved in this view of Dred Scott. For that matter, see this 1937 argument by a supporter of FDR for the same notion. It's the sort of thing one sees floating around; which makes it tricky to see how extensively it would be known, since we have to trust so much to anecdotal evidence. I've certainly seen it a lot in such connections. In other words, I think making it out to be 'pro-life code-language' is wrong, because it is much more likely to be a general criticism of the courts than a particular issue. For most (but not all) who would recognize this criticism, Roe v. Wade would be treated as a clear example of judicial abuse (made all the stronger because many people have objections to it similar to, and often derived from, Lincoln's comments about the Declaration of Independence in the above speech), but I don't think it was a secret attempt to propose pro-life positions as a litmus test although conceivably that's what it could amount to (although it could amount to other things, as well). The real issue is a criticism of the role the courts have taken on, and this interpretation fits fairly well with Bush's somewhat obscure statements, quoted above.
At least, that's my guess, and I'm sticking to it until I see reason otherwise. It would have been really odd, I think, for Bush to say something so categorical and unequivocal in code during a debate. I think it's what I'm suggesting, namely, a vague reference to the evils of an unlimited court that would be recognized by a lot of people who worry about judicial usurpation, judicial tyranny, judicial supremacy, or whatever one calls it. The Lincoln passages are very commonly quoted in this connection, and thus it wouldn't be so very surprising that some echo of it would come to Bush's mind when discussing the courts. All of this is just speculation, though.
(Further Thought, added later with some revisions for clarification: One of the advantages of my interpretation, I think, is that it doesn't require us to see Bush as doing something so elaborate as the Roe-v-Wade-in-particular interpretation requires; it makes more sense of the Dred Scott reference as an off-the-cuff, in-the-middle-of-debate example.)
UPDATE (Oct 12): Parableman discusses the issue here.
