Bench Memos

NRO’s home for judicial news and analysis.

Supremely Odd


My friend Doug Kmiec is a distinguished law professor and public servant. He has for many years been a clear voice on questions of constitutionalism and the protection in law of unborn children. As readers are no doubt aware, Kmiec raised some eyebrows recently with a Slate essay contending that Sen. Obama “is a natural for the Catholic vote.” I thought (and think) the piece was misguided, and said so here.

Now, Prof. Kmiec is back with a follow-up, “A Prayer from Barack Obama.” The views expressed in this piece — like the ones expressed in the first one — are difficult for me to reconcile with Prof. Kmiec’s work and record. Particularly strange, though, was his answer to the objection he anticipated, namely, “Kmiec, get real, just think who Obama will appoint to the Supreme Court”. (Indeed.) Kmiec’s answer: “[I]sn’t it time for both sides to stop treating the Court like a political sinecure? Chief Justice John Roberts Jr. has done an able job of lowering the Court’s profile. Even when the Roberts Court takes on big issues — such as ‘partial-birth’ abortion [RG: since when does Prof. Kmiec use the New York Times-required scare-quotes when talking about partial-birth abortion?] and racial tie-breakers — it has a knack of writing small, preferring the ‘as applied’ to the ‘facial’ challenge.” Kmiec continues:

With that condo in Florida and his active tennis game, there’s no reason to think Justice John Paul Stevens won’t reach a Biblical age, and hey, if he hangs on long enough, maybe both sides will have decided so many jurisdictional, tax, and sentencing guideline cases that they won’t remember the Court’s previous, more activist history.

First, I have no idea what Kmiec means when he suggests that both sides should stop treating the Court like a political “sinecure”, i.e., an office that requires little or no work and that usually provides an income. If he means that “both sides” should stop treating the question of Supreme Court appointments as such an important one, because our Nation’s most pressing moral questions should not be decided by unelected federal judges, well, then I can only assume that my friend Doug Kmiec is being held hostage someplace and that an alien unfamiliar with the Supreme Court’s history for the past 50 years is penning op-eds in his name. Yes, it sure would be nice if Supreme Court appointments did not matter much. But, they do; Prof. Kmiec knows this, and he knows why.

Second, while I share entirely Kmiec’s admiration for Chief Justice Roberts, I was quite surprised to learn that the Roberts Court’s recent decisions have “lower[ed] the Court’s profile.” My own recollections of the explosion of “Good Lord! Sharp Turn to the Right!” commentary last June, and my expectation of, to say the least, high “profile” rulings this summer on gun rights, the death penalty, military tribunals, and child pornography, make it hard to imagine what Kmiec is getting at here. The Court matters. Certainly, it matters to those who support Sen. Obama no less than to those of us who do not.

Third, it is a mystery why Prof. Kmiec would think that Justice Stevens’s longevity increases the likelihood that the Court “won’t remember the Court’s previous, more activist history.” Instead, the Justice’s longevity and other gifts increase the likelihood that, if Sen. Obama is elected, the Court will “flip”, and either un-do or stop the positive developments in constitutional law – an increased attention to federalism, for example, and a better understanding of church-state separation — that came about under Chief Justice Rehnquist’s leadership, and that I know Kmiec welcomed.

Prof. Kmiec has, apparently, taken some heat – and some of it has been, I gather, pretty uncharitable – for his suggestions that faithful Catholics might conclude that, all things considered, Sen. Obama is the better choice. I want to put that matter aside. What’s so hard for me to understand is not how a Catholic could vote for Obama – I know that Catholics can, and will – but how a law professor with Kmiec’s views and record, both in government and in the academy, could think about the Court and its relevance to the election what Kmiec says in his latest piece.


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