For six years, political figures and interest groups on the left, right, and center, along with reporters and commentators, have noted that during his first presidential campaign, George W. Bush promised to use Supreme Court Justice Antonin Scalia as the model for his nominations to the court. Weekly Standard executive editor Fred Barnes was apparently the first to report this, in a July 1999 article for that magazine. For six years, Barnes and countless others repeated this fact, and neither Bush nor any of his aides seem to have ever challenged it -- in fact, Bush did not contest Al Gore's statement in a 2000 presidential debate that Bush had made such a promise. But in recent months -- when two vacancies gave Bush the opportunity to actually make nominations to the Supreme Court -- an apparent effort to walk back the promise has been under way, with Barnes himself playing a key role through a series of inconsistent statements about his own article.
Most recently, CNN White House correspondent Dana Bash narrated a segment on the October 12 edition of The Situation Room that purported to debunk the “urban myth” that, while campaigning for president, George Bush said that his Supreme Court nominees would be in the mold of Scalia. Bash claimed that the “myth” of Bush's Scalia comments was based on a November 1999 appearance on NBC's Meet the Press in which, as Bash noted, Bush praised Scalia but didn't promise to appoint a justice like him. Bash then said that during a 2000 debate, Gore, Bush's opponent, “connected the dots” -- falsely suggesting that Gore was the first to interpret Bush's Meet the Press comments as a promise to appoint a justice like Scalia. Finally, Bash provided a clue about the source of recent efforts to walk back Bush's promise by stating that "[a] longtime time Bush aide confirms to CNN Mr. Bush didn't actually publicly pledge a Scalia or a [Clarence] Thomas, but they made no effort to clarify."
Contrary to Bash's claim, Bush's Meet the Press appearance was not the original basis for the assertion that Bush promised to appoint a justice in the mold of Scalia. Under the headline “Bush Scalia,” Weekly Standard executive editor Fred Barnes wrote in his magazine's July 5-12, 1999, issue:
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.
Barnes stood by his reporting for six years. Media Matters for America can find no example of either Barnes or any Bush aide correcting the July 1999 article through mid-2005. In fact, Barnes has repeatedly reiterated the point that Bush said he'd name a justice like Scalia -- and has done so as recently as this year:
- BARNES: "George W. Bush says he wants justices of the Supreme Court like Antonin Scalia, who has obviously ruled against Roe v. Wade in the minority." [Fox News' Special Report with Brit Hume, 9/14/99]
- BARNES: “Here's the thing that I think you need to look for, and that is -- Scalia happens to be George W. Bush's favorite justice. He cited him as the model for the kind of people he'd like to put on the court, federal courts at every level.” [Fox News' Special Report with Brit Hume, 11/2/99]
- On June 14, 2003, Barnes interviewed Ralph Neas, president of People for The American Way, who said that Bush “has said he's going to name people in the mold of Thomas and Scalia” -- to which Barnes replied: "Right." [Fox News' The Beltway Boys]
- BARNES: “But the president -- we know who the president likes. You know, I sent a question through an aide to Bush in 1999. And the question was, what kind of a -- who on the Supreme Court is your kind of judge? And you know the answer? Scalia, Antonin Scalia, who, in other words, a solid conservative.” [Fox News' Special Report with Brit Hume, 7/1/05]
Barnes's colleagues at The Weekly Standard, where he serves as executive editor, have also reiterated his original claim. A June 23, 2003, editorial with the byline “Terry Eastland, for the Editors” began:
PRESIDENT BUSH may or may not get the opportunity to name a Supreme Court Justice this summer. But if he does, who would be the right choice? Bush himself has told us. In 1999, Fred Barnes asked Bush what kind of judge he'd select. “I have great respect for Justice Scalia,” he said, “for the strength of his mind, the consistency of his convictions, and the judicial philosophy he defends.” There you have it. Someone like Scalia, assuming all other qualifications are met, would be the best choice for the Court.
Not only has Barnes repeatedly reiterated his reporting about Bush's promise, he has also passed on several opportunities to “correct” the record. Barnes appeared on Fox News as a commentator after the October 3, 2000, presidential debate in which Gore referred to Bush's promise to name a justice like Scalia. Barnes said nothing to correct or contradict Gore. Two days later, Barnes appeared on Fox Broadcasting Co.'s Fox News Sunday only minutes after then-Democratic National Committee chairman Ed Rendell said, “George Bush has said he'd appoint justices like Antonin Scalia.” Barnes said nothing to correct or contradict Rendell. On the December 13, 2000, broadcast of Special Report, Weekly Standard editor William Kristol referred to Bush's Scalia promise as his favorite part of the campaign. Barnes, appearing minutes later, did not correct the record.
But recently -- six years after his original article was printed in The Weekly Standard -- Barnes began to “correct” the record. Barnes's efforts to walk back his reporting about Bush's intention to nominate another Scalia apparently began with a July 4 commentary for The Weekly Standard's website, The Daily Standard. Just three days after he had said on Fox that he had asked Bush “who on the Supreme Court is your kind of judge,” Barnes began to shift his telling of the tale:
THROUGH A CAMPAIGN AIDE, Bush answered a question about the kind of Supreme Court justice he admired. The answer was Antonin Scalia, a conservative. That was in 1999, as Bush was beginning his race for the presidency. He was asked a similar question later that year by Tim Russert on Meet the Press. The answer was the same -- Scalia. Now jump to the summer of 2003 as Bush is preparing for his reelection campaign. Meeting with advisers at his ranch in Crawford, Texas, Bush said one of his top priorities is to create a diverse Republican party with many more Hispanics.
Barnes' walk-back continued, and got more explicit, in the July 9, 2005, issue of National Journal:
Ever since the 2000 presidential campaign, when George W. Bush singled out Scalia and Thomas as justices whom he admires, conservative activists have taken Bush's remarks as practically a solemn vow to appoint justices like the two. But Bush never actually promised.
The over-interpreted daisy chain got its first link in July 1999, when Fred Barnes, executive editor of The Weekly Standard, wrote, “Who is George W. Bush's ideal judge, the model for nominees he'd pick for the Supreme Court? Antonin Scalia, that's who.”
Barnes continued, “When asked about the kind of judge he would really want, Bush was quite specific. 'I have great respect for Justice Scalia, for the strength of his mind, the consistency of his convictions, and the judicial philosophy he defends.' ”
In a recent interview, Barnes said the question he submitted was along the lines of which sitting justice Bush most admired, not who would be his model for future appointments. David Beckwith, who as press secretary for the Bush campaign provided the candidate's response to Barnes, has a similar recollection. “I think it was, 'Who do you most admire?' or 'Who's your favorite?' ” Beckwith said.
Left unanswered: If the question Barnes submitted really was “along the lines of which sitting justice Bush most admired,” why did he write otherwise in 1999? Why didn't he correct it until there was actually a Supreme Court vacancy for Bush to fill? More to the point: Why did he continue to misrepresent his own question for years before finally correcting it when Bush had a vacancy to fill?
But Barnes apparently wasn't fully committed to “correcting” the “mistake.” On the July 12 edition of Fox News' Special Report, in a panel discussion that included Barnes, Roll Call executive editor Morton M. Kondracke said that Bush “has promised, you know, time and time again, that he would, you know, look to Scalia and Thomas as his model for Supreme Court appointments.” Barnes did not contradict him.
Indeed, just a few days later, Barnes corrected his correction. A July 18 Weekly Standard editorial carrying Barnes's byline noted: “In 1999, The Weekly Standard asked Bush to identify the Supreme Court justice who was his model for what a justice should be. He said it was Antonin Scalia, a full-blown conservative.”
But on the September 30 edition of Fox News' Special Report, Barnes corrected his correction of his correction, responding to a statement by Kondracke that Bush “assured the conservatives that he is going to pick another Scalia or Clarence Thomas” by saying:
BARNES: Let me correct something that Mort said because -- in kindness because I was responsible for this story about the president preferring Scalia and Clarence Thomas back in 1999. I asked this question to David Beckwith, who was in the press office of the Bush campaign, "Who does the president really admire on the court?" And the answer came back Thomas and Scalia. There's never been a promise that he would actually nominate another Thomas and Scalia.
From the October 12 edition of CNN's The Situation Room:
ALI VELSHI (anchor): Some conservatives believe the president broke a promise about the kind of people he'd named to the high court. But as our White House correspondent Dana Bash reports, it was a promise Mr. Bush never actually made.
BASH: Just minutes after word of the first Supreme Court vacancy, conservatives rushed to set a standard.
CATHY CLEAVER RUSE (Family Research Council, video clip): The president was elected with the promise that he would appoint people in the mold of Justice Scalia and Justice Thomas.
BASH: A mantra repeated by allies on the airwaves.
ED MEESE, (former attorney general, video clip): The president has committed himself to nominating someone in the mold of Scalia and Thomas.
BASH: Reinforced by grassroots groups trying to pressure the president, reiterated by bloggers. Just one problem: It turns out the Bush “mold of Scalia and Thomas” promise may be an urban myth. It goes back to 1999. Then- Governor Bush, asked which justice he respected, said Antonin Scalia. So would his appointments be like Scalia?
BUSH (video clip): 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.
BASH: Praise, but no promises. The same went for Clarence Thomas.
Al Gore, during a 2000 debate, apparently connected the dots.
GORE (video clip): -- that he will appoint justices in the mold of Scalia and Clarence Thomas, who are known for being the most vigorous opponents of a woman's right to choose.
BASH: A longtime top Bush aide confirms to CNN Mr. Bush didn't actually publicly pledge a Scalia or a Thomas, but they made no effort to clarify. To conservative activists, it was code. They expected Mr. Bush to pick justices with clear records showing they'd move the court right.
BAY BUCHANAN (CNN contributor): When you talk about Thomas and Scalia, you know they're going to strictly interpret the Constitution, which tells us, as social conservatives, one thing, which is obviously on the forefront of our minds, is that awful, awful decision of Roe v. Wade.
BASH: Some conservatives were skeptical of [Chief Justice] John Roberts but decided to trust the president. With Harriet Miers, a widespread feeling of betrayal.
ROBERT BORK (former Supreme Court nominee, video clip): The conservative movement was banking -- they said, “At least he's going to choose a judge like Scalia and Thomas.” That's what he said he would do. There's no evidence that this is a judge like Scalia or Thomas.
BASH: A campaign pledge the president did make to the base over and over was this --
BUSH (video clip): We stand for judges who faithfully interpret the law instead of legislating from the bench.
BASH: -- a promise he considers kept.
BUSH (video clip): Harriet Miers will strictly interpret our Constitution and laws. She will not legislate from the bench.
BASH: The White House is now in a catch-22, trying to overcome Miers's nonexistent judicial record, which upsets and angers conservatives, by suggesting she opposes abortion, but still insisting, when it comes to confirmation, her personal views are off-limits.
Dana Bash, CNN, the White House.