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Doug Kmiec: What He Wrote When He Supported Harriet Miers

[cross-posted on Southern Appeal]

Yes, the same Doug Kmiec who has endorsed Barack Obama for President went on the talk-show, op-ed circuit in October 2005 to support President Bush's nominee to the U.S. Supreme Court, Harriet Miers. This is what Professor Kmiec wrote in a 2005 Washington Post piece:

[T]hose asked to interpret the law fashioned by legislative assembly are expected to be objective, impartial and circumspect in deciding issues no more broadly than the legal dispute needing resolution. Jurists are to be fair and, while learning and practice in the law are expected, no justice is invited to propound a personal philosophy on the great issues of the universe: abortion, affirmative action, assisted suicide, religion in public life.

But, it is claimed, [Harriet Meirs] is so unlike John Roberts. In fact, though, Miers is exactly like Roberts in one crucial aspect: They are both steadfast adherents to a judicial ethic of no personally imposed points of view. The cognoscenti snicker when the president reaffirms his criterion of judges who will shun legislating from the bench, since to legal realists, it is inconceivable and to political ideologues it is a missed opportunity. They all do, they all will, goes the refrain. To which Roberts repeatedly answered: No, not this umpire. The same answer can be expected from Miers as she makes her bid to join the officiating crew.

And this is what Senator Obama has said about Justice Roberts prior to his confirmation

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court -- adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart....

The bottom line is this: I will be voting against John Roberts' nomination.

In 2005, Professor Kmiec, in his defense of the Miers nomination, offered up Justice Roberts as the ideal Supreme Court justice because he does not believe the Constitution is supposed to "resolve" controversial moral and social issues in a way consistent with the views of people like Senator Obama (or even Doug Kmiec circa 2005). In 2005, Senator Obama told us that he was not voting for Judge John Roberts precisely because Roberts does not believe that the Constitution is supposed to resolve controversial moral and social issues in a way consistent with Senator Obama's own views on these matters. In 2008, Professor Kmiec is supporting Obama.

Comments (2)

Looking back, it will become clear the tell-tale signs were there all along. Kmiec endorsed Miers. Soon we'll read of Janet Reno posters adorning his private study, a "harmless" dabbling in the occult, and occasionally missing Mass to meet with a book club reading the works of Peter Singer.

There was a very odd bit in an article in the most recent issue of Human Life Review. (My brain is going tonight and I can't remember the author.) I need to say up front and in honesty that I found myself agreeing more than disagreeing with the author. (So when y'all figure out what controversy I'm talking about, you will know where I'm coming from.) But one thing he said surprised me: He said that the appointment of Harriet Miers was no blot upon Bush's pro-life record, because Miers had been appointed _because_ she was pro-life, and the objection to her had merely been lack of judicial depth and inexperience. Now this sent me scurrying to my computer. My memory may not be all that it used to be, but I _knew_ I remembered that there was some issue about Miers and objections from pro-lifers. Well, first of all, Google found me a bunch of liberals wailing about how Miers had sought the endorsement of some pro-life group or something, how "anti-choice" she was and such. But I kept looking and sure enough was reminded of that _dreadful_ speech she gave to that Dallas women's group about courts deciding whether women would continue to have the right to choose abortion, obviously implying that it would be terrible if Roe were overturned. And I even found the whole text of the speech in PDF, and the quotation looked worse in context the more you thought about it--all this junk about deeply personal decisions where science hasn't spoken and autonomy and such. I couldn't believe that the article writer didn't remember this, or even remember as I did that there was something...something...about the pro-lifers not liking Miers. Then he could have googled it like I did and brought it all back to mind. It was at a minimum carelessness and bothered me.

But Frank, if you're concerned about Kmiec and consistency, Kmiec has much bigger problems ostensibly being pro-life and supporting Obama. If he's swallowed that camel he'd never stick at a little gnat about the philosophical question concerning what sort of judges we should have. Never in a million years. Nor will anyone who agrees with Kmiec on this one.

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