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.

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