The Fight Behind the Fight

While the overturning of Roe v. Wade is the top priority issue for many social conservatives, they have found a way to pursue that agenda without wading directly into that political minefield. In terms of judicial nominations, the rhetoric has morphed into a debate over "strict constructionism" or, as conservatives phrase it, whether judges should "legislate from the bench." In this case, should the court rule by reading into the Constitution rights that are not explicitly stated?

Bush recognized early on how fraught with political peril the abortion issue was. Since he began running for president the first time in mid-1999, Bush has been exceedingly careful in talking about abortion. He has never made it a front-burner issue, at least in terms of publicly laying out his policy agenda.

He has made it clear that he opposes abortion, but he's tried to choose his words carefully, particularly when talking about it in relation to judicial nominations. From the beginning of his first presidential campaign, he insisted that he would not have a litmus test on abortion and that he would look for judges that were "strict constructionist" or would "strictly apply" the Constitution.

One of the few times I've seen Bush flustered was back in early 2000, when he was still in a crowded field of candidates running for president. Back then, I was with The Washington Post and part of the press core covering his nascent campaign. At the time, Bush was being challenged from the right by Steve Forbes and Gary Bauer, who were pressing the Texas governor to state unequivocally whether he would only nominate antiabortion judges to the court.

Bush kept saying he would have no "litmus test" on abortion and would seek to nominate "strict constructionist" judges.

The reporters covering Bush decided to press him on this issue at a news conference in Pella, Iowa, on Jan. 20, 2000. The questions came in rapid-fire fashion: When asked to define the term "strict constructionist," Bush replied that it was someone who "interprets the Constitution for what it is and doesn't use the opportunity of the Constitution to pass legislation or legislate from the bench."

Bush and his advisers would have loved to leave it right there. Who could disagree with that? The problem, of course, is that "strict constructionism," like beauty, is in the eye of the beholder.

Asked at the same conference to specify some major cases in which the Supreme Court had deviated from a "strict constructionist" standard, Bush said he could not do so because he was not a lawyer.

Typically, in those news conferences, reporters jumped from one topic to the next with little follow up on specific questions. But on this day, reporters stayed on this subject. Just what did the candidate mean by "strict constructionist?" Bush's face turned red and he gripped the sides of his lectern, clearly angry and nervous.

Finally, when asked what a strict constructionist judge would be forced to conclude about the legality of abortion, he allowed: "Roe v. Wade was a reach that overstepped the constitutional bounds as far as I'm concerned."

This was an important, if little chronicled, moment in Bush's political history, in that it was one of the few times he has ever been pressed by reporters to define the term and apply the principle to specific case law. In this case, a strict constructionist judge is one who would not make the leap, as the justices did in the Roe case, that the Constitution guaranteed a right to privacy that could be applied to abortion. In other words, Bush's judges would believe, as he did, that Roe was wrongly decided.

Bush's subtlety didn't satisfy Forbes, who lambasted Bush's response afterward, saying: "It's just ridiculous that he's not willing to take a firm stand on the life issue. On the life issue, he's becoming a pacifist, not an activist."