Last weeks column in The Wanderer with updating. More about Doug Kmiec and a whole lot more about Critical Legal Studies.
By Thomas F. Roeser
CHICAGOA meeting here last week at 55 east Monroe between 30 evangelical Protestant leaders and Sen. Barack Obama included a sharpie working on Obamas side: ex-Reagan aide, constitutional scholar and supposedly Catholic social conservative Douglas Kmiec. I wrote about Kmiec before in The Wanderer and have known him for several years. He and I both wrote Op Eds for the Tribune before my contract was not extended because I was too conservative. Doug stayed on and remained in the good graces of the papers editorial board, witness his prominent appearance on the papers editorial page last week in passionate defense of Obama.
If he is successful at his trade, Doug wont have to lie about Obamas record on abortionjust obfuscate it, minimizing its effect, saying that getting rid of legalized abortion requires far more than a constitutional amendment but also non-governmental things (true)so no big deal. In a column for the Trib he says he [Obama] intends to ask government and non-governmental entitiesand you and meto do our part. Frankly, its more than a little exhilarating to be given that much faith and trust. How touching. Then he rhapsodized about Obamas brimming good will, a sly hint that he may be amenable to softening his pro-abort stand. Its a very tough sell. Kmiec must convince the churchmen and the liberal secular media to equate Obamas pro-abort record with McCains pro-life one
blanding both out with so many fine legal distinctions as to make both equivalent on the issue. If it works, he will likely be in for a fine reward from President Obama.
Kmiec, a native Chicagoan whose father was a foot soldier for old Mayor Richard J. Daley before Douglas turned conservative and Republican, is the brilliant constitutional scholar who was head of the prestigious Office of Legal Counsel for Ronald Reagan and George H. W. Bush, performing excellently as a pro-life advocate in that position. His resume in the law is impeccable: former dean and St. Thomas More professor of Catholic University of America (the Thomas More name rings hollow now), director of the Thomas White Center on Law & Government at Notre Dame; now chair in constitutional law at Pepperdine Universitys school of law.
However richly he deserved it, Kmiec missed being appointed to the U.S. Supreme Court by George W. Bush. Former White House colleagues tell me why. It had nothing to do with Kmiecs abilities but because the George W. Bush people felt (rightly in my view) that since Kmiec has had such a lengthy paper trail in support of pro-life that a Democratic senate would be sure to deny him confirmation. As it was, getting John Roberts and Sam Alito confirmed was tough enough (Dougs new found patron, Obama didnt vote for them for instance) and they didnt have the voluminously long record of public writings in behalf of pro-life that Kmiec had.
But former fellow law professors who know Kmiec well, say getting on the Supreme Court has long been his lifes objective. Nothing wrong with that since he has the intellectual resources to be a brilliant jurist. After Bush left him in the lurch (he feels), he started out the political year supporting Mitt Romneys presidential bid, explaining adroitly Romneys move from pro-abort to pro-life, a tough job in itself. But when Romneys effort fizzled, Kmiec jumped to Obama, stunning some of his colleagues but not one in particular at Notre Dame who told me hes not surprised by Kmiecs opportunism.
Kmiecs rationale seems to be that if he gives his all to the Obama candidacy and succeeds, he (Kmiec) will likely be nominated by a President Obama to the high court. Given the likelihood of an enlarged Democratic majority in the Senate, Kmiec might be able to cobble together enough votes from pro-aborts and forgiving pro-lifers to make it through. He may well be right. Believe it or not there are some pro-lifers who feel that if Kmiec were named by Obama, the slippery professor could revert to pro-life; thus he could be a double agent. Or maybe a double-double agent. If I were Obama, I would be suspicious too for nothing is intellectually simple with Kmiec.
The Obama-Kmiec Team.
The Obama-Kmiec meeting with evangelicals was not to convince them that Obama was suddenly hit by a lightening bolt on the way to Damascus and has become pro-life
but to demonstrate that while adamantly pro-abort, his door is ever-open for a deal and negotiation with the full contingent of evangelical leaders, a meeting Kmiec assuredly will be handling.
Among those crowded into a conference room was a group that was far from stolidly pro-life to be surebut mostly black ministers who favor Obama anyhow and might importune their more conservative brothers to hop on the train. The gathering was a closed-door propaganda event designed to show Obamas openness.
Attendees included Cameron Strang, founder and CEO of Relevant Media (not to be confused with Catholic Relevant Radio) but the publisher of the hip Christian magazine in liberal terminology with a big kid audience; Bishop T. D. Jakes, the black leader of a Dallas mega-church; best-selling author Max Lucado; Paul Corts, president of the Council for Christian Colleges and Universities; Rev. Stephen Thurston, president of the National Baptist Convention of America and black pastor on Chicagos south side.
Also, Rev. T. Dewitt Smith, president of the Progressive National Baptist convention, Inc. and AME Bishop Phillip R. Cousin, Sr. But the dessert, whipped cream with a cherry on the top, was the presence of the Rev. Franklin Graham, son of Billy and head of the Billy Graham Evangelical Association. If either one of the Grahams might tell the media, for instance, we should consider this young man because he has a good heart, a major battle would be won and Doug Kmiec would be the victor. And with Obamas election, Doug would be on his way to the high court.
Stumbling Block: Obamas Opposition to Born Alive.
All the same, Kmiec has endorsed for the presidency not your average liberal Democrat pro-choicer but the man who has certifiably the worst pro-abort record of anyone in the Senate and of anyone who has ever sought the presidency [italics mine]. Obama is not only a vehement advocate of abortion rights and opponent of the partial birth abortion ban. In the Illinois legislature as senate judiciary chairman he personally killed all efforts to pass a Born Alive bill that would save the lives of babies born from botched abortions who were still struggling for breath. Obamas veto certified that such babies will die unattended, writhing in pain, because to save one would jeopardize, he and his wife Michelle wrote, abortion rights for women, in that it could aid legislative efforts to make abortion more difficult to get.
Before he came to the U. S. Senate, that body, while under control of the Democrats voted on the same legislation and passed the Born Alive bill which Obama had opposed as a state lawmaker. Those voting for it included the laundry list of most leading pro-abort senators including Sens. Ted Kennedy (D-Mass.), Barbara Boxer (D-Calif.), Diane Feinstein (D-Calif) and Hillary Clinton (D-N.Y.)
An almost insuperable task for Kmiec is, with Obama unrepentant of killing Born Alive, to parse the necessary rationale to obfuscate and downgrade a simple black and white pro-life distinction on unborn life between his new boss and John McCain. He does not abjure pro-life but writes as a pro-lifer with legalistic distinctions. McCain as you know favors a constitutional amendment that overrules Roe and sends the abortion issue to the states. Obama does not favor such an amendment. Now, take this masterpiece of twisted logic from Kmiecs recent Catholic Online column where he tackles the question whom should Catholics vote for vis-à-vis pro-life?
Given that abortion is an intrinsic evil without justification, thinking the overturning of Roe `solves the abortion problem, when it does not, can mislead Catholics into the erroneous conclusion that any candidate unwilling to pledge reversal of Roe is categorically unworthy of support.
Reasonable-sounding to some, but hold on! But how about one who has voted in favor of leaving born alive babies, maimed through abortion, to suffer in agony and die in pain rather than have a hospital treat them humanely and giving them medical attention because abortion rights would be trammeled on?
Thats very tough even for smart, savvy lawyer Doug Kmiec to handle so he ignores the issue. But if any serious pro-lifers are convinced to vote for Obama, only deception and duplicity will sway them.
Kmiecs Martyrdom for Conscience.
A major weapon used by Kmiec to court favor with the secular media and Obama supporters is his supposed punishment by the Catholic Church because he has announced for Obama. He announced that at Mass sponsored by Catholic businessmen whom he was to address later at dinner that he approached the altar to receiving the Eucharistand was denied. The priest shook his head and declined to offer Kmiec the host. Kmiec then reportedly said: Youre making a mistake, Father. The priest replied calmly, No Im not. Kmiec returned to his pew. His wife rushed out of the church in tears. Then Kmiec went on a media campaign, reporting that he was denied to various liberal media sources including E. J. Dionne, a Catholic and longtime liberal Op Ed writer for the Washington Post, a former Rhodes scholar and holder of a doctorate in political science from Harvard. Kmiecs argument: horrors! By denying him, the priest turned the Eucharist into a political weapon. Obviously Kmiec knows better than that.
Dionne broke the story in his column on June 3, writing Word spread like wildfire in Catholic circles: Douglas Kmiec, a staunch Republican, firm foe of abortion and veteran of the Reagan Justice department, had been denied Communion. His sin? Kmiec, a Catholic, who can cite papal pronouncements with the facility of a theological scholar, shocked old friends and adversaries alike earlier this year by endorsing Barack Obama for president. For at least one priest, Kmiecs support for a pro-choice politician made him a willing participant in a grave moral evil.
Kmiec was denied Communion in April at a Mass for a group of Catholic business people he later addressed at dinner. The episode has not received wide attention outside the Catholic world but it is the opening shot in an argument that could have a large impact on this years presidential campaign: Is it legitimate for bishops and priests to deny Communion to those supporting candidates who favor abortion rights?...Kmiec says he is grateful because the episode reminded him of the importance of the Euchari8st in his spiritual life, and because he hopes it will alert others to the dangers of `using Communion as a weapon. (Italics mine).
The issue quickly gained publicity speed as Kmiec wished. Nina Totenberg of National Public Radio and dean of the Supreme Court press corps, used it last week on the air. Totenberg is the reporter who broke the Anita Hill story that almost lost Senate confirmation for Clarence Thomas in December,1991 hours before his Senate confirmation vote.
Totenberg interviewed Kmiec and conferred the garland of martyrdom on his brow which he accepted modestly, saying he would not identify the priest who denied him out of charity. Just the thing to win support for Kmiec from liberals who incardinate refugees from conservatism to Stand Tall in Georgetown, the liberal sanctuary in Washington, D. C. and polish his image so as to become an overnight liberal hero. Also, Totenberg found a liberal theologian at Georgetown (not difficult) who railed that the offense to Doug Kmiec by the priest punished him, was an attempt to arm-twist Kmiecs conscience, attesting that no priest has the right to deny anyone Communion without checking with his bishop.
Never? How could a Catholic theologian seriously stand by that statement? Suppose a drunk weaves into the sanctuary and approaches the priest in the act of distributing the Eucharist. Must the priest interrupt the Mass and call his bishop on the phone to ask him what he should do? Ridiculous. The answer from those skilled in theology with whom Ive talked is this: the priest on the altar must make the judgment. If, in fact, the priest has doubts as to the validity of the communicant, he makes the call.
But thats not Dougs worry. Hes a certifiable liberal martyr now. So, invested in the toga and regalia of full martyrdom as a turned-away communicant, Kmiec wrote his Op Ed for the Chicago Tribune last week. His byline carried the prime identification: Douglas W. Kmiec, who was denied Communion by a priest for endorsing Barack Obama is a professor of constitutional law at Pepperdine University and was an assistant U. S. attorney general during the Reagan administration. [Italics mine]. Thus Obamas hometown newspaper should solidify the impression that Doug Kmiec is a man of conscience willing to be used as a test case for
conscience in behalf of Obamas campaign. In his Op Ed, Kmiec skipped Obamas pro-abortion views, certainly his Born Alive kill and gave a sugary flavor to his new bosss meeting with evangelicals: Why would the presumptive nominee of the Democratic party devote so much time talking faith rather than politics? [sic]. Quite simply, because it is the senators deep personal faith that explains his audaciously positive hope for his country.
Hurdle 2: Critical Legal Studies Influencing Obama.
But Kmiec will also need more than his sugared words to get Obamas true views on legal construct through to the public. The dirty little secret which I discovered after several sessions interviewing him on ABC Radio in Chicago, is that full-blooming with his credentials as the first black president of the Harvard Law Review and lecturer in constitutional law at the University of Chicago, Obama has been all but an announced exponent of what is known as Critical Legal Studies that was fashionable in the `80s, the view that legal language is, in fact, a false discourse that perpetuates hierarchiesmen over women, rich over poor, majorities over minorities whereas the object of law is to not merely determine constitutionality but force-feed equality whether the law requires it or not.
The old Doug Kmiec of a few months ago would be expected to stand opposed to that view. As recent as last year, Obama gave ample demonstration that he was enlisted in the new view which comes as close to enunciation of Critical Legal Studies as has been made by any public official. .
On July 12, 2007 Obama addressed the Planned Parenthood Action Fund in Washington, D. C. Here are some excerpts where he answers questions. I have taken the liberty to parse it.
Obama: Well, the first thing Id do as president is, is sign the Freedom of Choice Act [Applause].
Fact: The Freedom of Choice Act was introduced in Congress one day after the Supreme Court upheld the Partial Birth Abortion act on April 19, 2007. The FOCA would invalidate many federal, state and local anti-abortion laws including the Partial-Birth Abortion Act and would create an absolute right to abortion overriding any federal, state or local law that simply interfered with that right, no matter how compelling the justification..
Obama: Thats the first thing that Id do. Um, but the, okay, but, but your question about the federal courts is absolutely on target. I taught Constitutional law for ten years and I have to say after reading this latest decision and the series of decisions that the Supreme Court has been putting forward that I find it baffling
Because sometimes they are striking down acts of Congress like the Violence Against Women Act, showing very little deference to congressional decision-making and that somehow when it comes to a piece of legislation that is not taking into account clear doctrine that the Supreme Court has laid out, they say, Oh, thats fine. Congress can make those decisions. There is an inconsistency and I believe a hypocrisy in terms of how we see many of those decisions issued.
Fact: Hes for congressional decision-making when it suits the liberal agenda and for the Court overruling congressional decision-making when it doesnt. Sophistry. Finding the Partial Birth Abortion ban constitutional is in accordance with its powers as defined by John Marshall in Marbury v. Madison (1803).
Obama: And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then theres another version [sic] of the court that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process.
Fact: Powerful and Powerless is Critical Legal Studies language.
Obama: Thats one of the reasons I opposed Alito, you know, as well as Justice Roberts. When Roberts came up and everyone was saying, You know, hes very smart and he seems a very decent man and he loves his wife [Laughter]. You know, hes good to his dog [laughter]. Hes so well qualified. I said, `well, look, thats absolutely true and in most Supreme Court decis--, in the overwhelming number of Supreme Court decisions, thats enough. Good intellect, you read the statute, you look at the case law and most of the time the laws pretty clear. Ninety-five percent of the time, Justice Ginsberg, Justice Thomas, Justice Scalia, theyre all gonna agree on the outcome.
Fact: Meaning something else is required beyond the mere reading of the law which might deviate into Originalism, horrors
, the pretext of Critical Legal Studies.
If hes going to make this sale, Doug Kmiec has to wrestle with Obamas support of the essentials of Critical Legal Studies well as his own conscience.