The Magazine

BUSH SCALIA

Jul 5, 1999, Vol. 4, No. 40 • By FRED BARNES
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WHO IS GEORGE W. BUSH'S IDEAL JUDGE, the model for nominees he'd pick for the Supreme Court? Antonin Scalia, that's who. In public comments, of course, Bush has declared his desire, if elected president, to choose judges who interpret the Constitution strictly, and Scalia qualifies on that count. Appointed by President Reagan in 1986, Scalia is one of the most conservative justices on the high court, and is part of the minority that favors overturning Roe v. Wade, the 1973 decision that legalized abortion. But when asked about the kind of judge he would really want, Bush was quite specific. "I have great respect for Justice Scalia," Bush said, "for the strength of his mind, the consistency of his convictions, and the judicial philosophy he defends."


Bush singled out Scalia in response to a written question I submitted to his presidential campaign. Some Bush aides thought he might cite Clarence Thomas, nominated by Bush's father, President Bush, in 1991, as the model for his judicial appointments. Every bit as conservative as Scalia, Thomas would likewise reverse Roe v. Wade. But Thomas is more controversial as a result of sexual harassment charges made against him by Anita Hill. Bush is not an admirer of his father's other nominee, David Souter, now one of the Court's leading liberals.


In one sense, Bush's willingness to spotlight Scalia was surprising. One of the most important working assumptions of the Bush campaign is that abortion is a losing issue for Bush (or for any Republican running nationally). The more visibility the issue gets, the worse it is for Bush. He and his aides believe this despite a recent CNN/USA Today poll that found 71 percent of Americans would allow abortions only in cases of rape, incest, or saving the life of the mother. This is exactly Bush's position. Still, he is reluctant to tout it. He never mentions abortion in prepared remarks. But he does answer questions on the issue. In Pennsylvania last week, while campaigning with pro-choice governor Tom Ridge, Bush said he would not apply a pro-life litmus test to his vice presidential running mate if he wins the GOP nomination.


Bush declined to give his view of Roe v. Wade when I asked, in another written question, if he believed the case was wrongly decided. "I'm not a lawyer," he said. "My job is to appoint judges who are strict constructionists." And finally: What would Bush do as president to protect unborn children and make the country more willing to accept a ban on abortion in most cases? "In a democracy, a leader can propose," Bush said. "He cannot impose. Laws are changed as minds are persuaded. But a president can lead by opposing public funding for abortion, by praising the private goodness of crisis pregnancy centers, by promoting adoption, by teaching abstinence to children, by ending partial-birth abortion. The goal is to build a culture of life brick by brick."


Another assumption of the Bush campaign is that support for his presidential bid by the Republican establishment reflects more than elite backing. More than 2,000 elected officials, lobbyists, party leaders, and activists paid $ 1,000 apiece to attend a Bush fund-raiser in Washington last week. Deputy House whip Roy Blunt of Missouri said he hadn't seen such an out-pouring of Republican support for a presidential candidate since Ronald Reagan was seeking reelection in 1984. Naturally, Bush was zinged in the press for having ties to lobbyists. But Bush strategists said the backing of elected officials -- 126 House members, 17 senators -- is more revealing. They wouldn't publicly endorse Bush unless there was grass-roots backing for him. This is probably true. In a June NBC/Wall Street Journal survey, he led his nearest GOP rival, Elizabeth Dole, by 61 percent to 11 percent.


Another assumption: Negative attacks have lost their sting. Bush believes there's been a fundamental shift in public sentiment against harsh attacks. Voters are more likely to fault the attacker than the attacked. This belief goes back to his 1994 victory over incumbent Ann Richards in the Texas governor's race. Richards slashed at Bush, and he responded with a television ad saying he'd treat her "with respect" and that issues, not personal attacks, "should be the focus in this campaign." The soft counterpunch worked. Now, when Democratic national chairman Joe Andrew followed Bush around Iowa and New Hampshire, Bush spokesman David Beckwith simply belittled him as "the attack puppy." But while the assumption that sharp attacks don't work may be true in a general election, it may not hold up in primaries with multiple candidates. Yes, an attack on Bush by Steve Forbes could backfire on Forbes. But it could still hurt Bush indirectly by helping Dole or Lamar Alexander.