Bench Memos

Kmiec’s Kmuck

I’ve just had it drawn to my attention that Douglas Kmiec wrote a piece for the Jesuit-published America magazine a while back, defending the president’s “empathy” standard for judicial nominations.  It’s an appallingly incoherent performance–as though Kmiec were playing the blindfold-game “pin the tail on the elephant” when the animal isn’t even in the room.  If anyone can make any sense of his effort to restate the “empathy” standard, please let me know.  But in the course of thrashing about, Kmiec attacks originalism by way of caricaturing it, misdescribes the issues in the Ledbetter case (see Stuart Taylor on this), and considers the homicide rate to be somehow relevant to the interpretation of the Second Amendment and its possible application to state laws.

Worse yet, having now completed his utter thralldom to President Obama, Kmiec adopts the left’s hoariest talking points on two issues on which he once supposedly had hesitations and misgivings about Candidate Obama.  On gay marriage, Kmiec writes:

If the California Supreme Court, for example, chooses to uphold Proposition 8 in a way that validates the selective oppression of one class of citizens, the empathy animating federal equal protection will be put to the test.

Oh.  My.  So Douglas Kmiec now believes that homosexuals desirous of marrying one another are a “class of citizens” being victimized by “selective oppression” by the maintenance of a legal order that has existed time out of mind for the purpose of preserving the integrity of the procreative family.

On abortion, while continuing to call himself “a defender of the idea that personhood begins at conception” (a claim he himself rendered doubtful recently), Kmiec says:

From the standpoint of empathy, doesn’t it seem unlikely that the states prepared to criminalize abortion upon the overturning of Roe will take the next step of sending predominantly poor women and college co-eds to jail? And if compassion exempts these women from incarceration, what consistent principle then sends the doctors off to prison?

This is so common a scare tactic among abortion supporters that a legal scholar who used to be a consistent pro-lifer should blush to employ it.  But Douglas Kmiec no longer seems to be one of us “beasts with red cheeks.”

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

Most Popular

Politics & Policy

The Great Misdirection

The House Democrats are frustrated, very frustrated. They’ve gotten themselves entangled in procedural disputes with the Trump administration that no one particularly cares about and that might be litigated for a very long time. A Washington Post report over the weekend spelled out how stymied Democrats ... Read More

Australia’s Voters Reject Leftist Ideas

Hell hath no fury greater than left-wingers who lose an election in a surprise upset. Think Brexit in 2016. Think Trump’s victory the same year. Now add Australia. Conservative prime minister Scott Morrison shocked pollsters and pundits alike with his victory on Saturday, and the reaction has been brutal ... Read More
NR Webathon

We’ve Had Bill Barr’s Back

One of the more dismaying features of the national political debate lately is how casually and cynically Attorney General Bill Barr has been smeared. He is routinely compared to Roy Cohn on a cable-TV program that prides itself on assembling the most thoughtful and plugged-in political analysts and ... Read More
Film & TV

Game of Thrones: A Father’s Legacy Endures

Warning! If you don't want to read any spoilers from last night's series finale of Game of Thrones, stop reading. Right now. There is a lot to unpack about the Thrones finale, and I fully understand many of the criticisms I read on Twitter and elsewhere. Yes, the show was compressed. Yes, there were moments ... Read More

The Merit of Merit-Based Immigration

Having chain-migrated his way into the White House and a little bit of political power, Donald Trump’s son-in-law is shopping around an immigration plan. And if you can get past the hilarious juxtaposition of the words “merit-based” and “Jared Kushner,” it’s a pretty good one. As things stand, the ... Read More