The media have been full of stories about President Bush raising huge amounts of money for his re-election campaign. It would be appropriate for the media, even at this early date, to examine whether the President is fulfilling his campaign promises. The President has not yet had an opportunity to pick a justice for the Supreme Court, but his spokesman, Ari Fleischer, already seems to be backing down on the Bush promise to pick someone in the tradition of Justices Antonin Scalia and Clarence Thomas.
The evasions came during a press briefing after the Supreme Court claimed to have found a right to homosexual sodomy in the U.S. Constitution. Fleischer was asked, “when or if there is a vacancy [on the court], should we continue to be guided by the President’s statement in the 2000 campaign that he would pick someone who would be in the mold of Justices Scalia and Thomas?”
Flesicher responded, “The President made many statements in the campaign about this topic and they are all operative. I’m not certain that you just accurately quoted the President, though. I don’t think he said, pick somebody. I think he talked about people he respects. When it came to pick people, he talked about picking people who were from the mainstream and who were not going to be?who would not?write laws, but who would be strict interpretations of the Constitution. But in any case, unless there is an announcement, there is no vacancy.”
It seems that Flesicher is trying to lay the groundwork for someone to be nominated who is not as conservative as Scalia or Thomas. But many stories from the campaign period are quite clear about what Bush said. As noted by the Associated Press, “Throughout the year, Bush tried to frame the issue in terms of philosophy, saying his ideal nominees would base their judgments strictly on the words of the Constitution. Pressed to name a justice who fits that mold, Bush pointed to Scalia and Thomas.”
Bush said about Scalia: “The reason I like him so much is I got to know him here in Austin when he came down” for a visit. Bush said of him, “He’s witty, he’s interesting, he’s firm.” Asked whether he thought Thomas was “the most qualified man” Bush’s father could have appointed to the high court, the former Texas governor replied, “I do.” Bush said that when it came to appointments to the court, “I’ll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy.”
The majority wrote social policy in the homosexual-rights case, with Scalia, Thomas and Rehnquist dissenting. Spokesman Flesicher was asked if the President agreed with the court majority and responded, “I think on this decision, the administration did not file a brief in this case? And this is now a state matter.” The decision not to file a brief in this case represents a failure to carry forward Bush’s proclaimed vision of a court that will strictly interpret the Constitution. It throws into doubt whether he will follow through on his promise to appoint someone of the caliber of Scalia or Thomas.