March 24, 2008

Doug Kmiec, conservative lawprof, counsel to conservative presidents, endorses Barack Obama.

Here's his explanation. Do you understand it?

RedState doesn't:
There isn't even an attempt at an explanation or at a reconciliation of his views with those of Senator Obama's....
Paul Mirengoff calls it "one of the most vacuous statements I've ever read."

Patterico calls it "one of the most puzzling pieces of writing I have ever read."

I can't really explain it myself, but, in response to the criticisms I've linked, here are 2 observations:

1. Being a law professor doesn't necessarily make the Supreme Court your dominant concern when you are voting for President. Kmiec clearly states his opposition to the Iraq war.

2. Even if you like conservative Supreme Court Justices, you may think there should be some balance on the Court and that it is not healthy — or good for conservatism in the long run — to have a long unbroken chain of appointments of one type of Supreme Court Justice. (I said something like that here.)

27 comments:

Mortimer Brezny said...

Point 2 would make more sense if Souter and Stevens hadn't been Republican appointees.

Ann Althouse said...
This comment has been removed by the author.
TMink said...

Well, Kmiec is too Conservative for McCain, and rightly thinks that Obama will be more likely to listen to other points of view than will McCain.

Rather than vote for another option as I will, he is voting for somone he sees as a good and decent person.

I think he is a fool. While I agree that Senator Obama is likely a good and decent person, his stated policies will harm the country if passed. I cannot count on his history of getting nothing done to protect the country with a liberal Congress, so I cannot vote for him.

I will "throw my vote away" by voting for the Constitution party candidate or someone similar. My fear is that McCain will win without Conservative voters such as myself and Mr. Kmiec, and the Republican party, who see us as a hinderance and bother, will continue their move toward bigger government.

Trey

Bob said...

We've only had a conservative majority on the court for a very short time, I'd like to reinforce it and hold it for about the same amount of time that the court was liberal, say, 40 years or so. I should be dead by then, so the risk of dying in an apoplectic rage after a Warren-style court starts getting inventive with the Constitution would be moot.

Mortimer Brezny said...

You mean Harriet Miers.

But Point 2 would make even more sense if Kmiec hadn't supported Miers, whose claim to fame was she was a hack who'd "vote the right way".

George said...

It reads as though it were written against his will.

Is there a hostage crisis team on the scene?

Ann Althouse said...

Sorry, I had to delete my mistyping of the name. What's I'd said, in response to Mortimer's"Point 2 would make more sense if Souter and Stevens hadn't been Republican appointees" was, with correction:

The defenses against "another Souter" are awfully strong these days, as we saw with Harriet Miers — whom Kmiec supported, by the way.

J said...

Why he can't just say "I oppose this war so I'm endorsing someone who also opposes it, even though I claim to disagree with him about pretty much everything else" is a mystery.

"track, detain, prosecute, convict, punish, and thereby, stem radical Islam's threat to civil order"

His last paragraph is one of the best demonstrations I've seen of why lawyers shouldn't be involved in national security. I don't know about you, but I don't want terrorists trying to attack me "detained, prosecuted, convicted" yada yada. I want them hunted down and killed.

rhhardin said...

The endorsement will likely supply no strategic advantage equivalent to that represented by the very helpful accolades the Senator has received from many of high stature and accomplishment, including most recently, from Governor Bill Richardson.

The rhetorical effect here is called bathos.

Simon said...

"Even if you like conservative Supreme Court Justices, you may think there should be some balance on the Court and that it is not healthy — or good for conservatism in the long run — to have a long unbroken chain of appointments of one type of Supreme Court Justice."

Well, I suppose that one may take such a view thinking that persistent doctrinal incoherence is a fertile breeding ground for scholarship. How's that working out for Federal Courts scholars?

And besides, as I take it Mort is pointing out - where do you see this "unbroken chain" of appointments of "one type" of Justice? Justices Scalia and Thomas are, at a stretch "one type" of judge, notwithstanding differences of opinion (for a recent example, take last weeks's Washington Grange case). And one could, arguably, say that Chief Justice Roberts and Justice Alito are, at a stretch, "one type" of judge, notwithstanding many serious disagreements between them (for just one example, see Utd. Haulers Assn. v. Oneida-Herkimer Solid Waste Mgmt. Auth.). But even assuming all this, arguendo, I find it very difficult to understand how it can rationally be said that Scalia and Thomas, on the one hand, and Roberts and Alito, on the other, are cut from the same cloth. You'd have to abstract to an extremely high level of generality to do that and say that they're all "conservative" judges; well, Justices Brennan and Breyer are both "liberal" judges, but would anyone - anyone, I should say, who studies law in anything but the shallowest sense - say that they represent "one type of Supreme Court Justice"? Even if someone agreed with the idea that there shouldn't be "a long unbroken chain of appointments of one type of Supreme Court Justice," it seems to me that such conditions don't exist at this time, even if we assume away Justice Souter and the two Clinton appointees.

Simon said...

Addenda: just to exemplify the distinction between Breyer and Brennan, do we think Brennan would have voted with O'Connor or Breyer in the 10 Commandments cases (Van Orden and McCreary County)?

Simon said...

Bob said...
"We've only had a conservative majority on the court for a very short time...."

When did we get that? Even setting aside the cases that don't break along liberal-conservative lines (I have in mind primarily the punitive damages cases an Apprendi-Booker) I count four conservatives, of various stripes, and a moderate who sometimes votes with us and sometimes doesn't (and, indeed, sometimes doesn't really even when he does - e.g. Rapanos or Parents Involved).

Bob said...

Which is why I said we need to solidify it and hold it for the next 40 years, Simon. :)

Greg said...

Has Kmiec bought any real estate lately? Just asking.

ireign22 said...

His endorsement rationale makes no sense even with Ann's attempt to rationalize it. If Kmiec was so concerned about the Iraq War than why didn't he endorse Kerry in 2004 and punish the person primarily responsible for the Iraq War? Kmiec, seemed to oppose any attempt by President Bush to pick even a moderate Justice for the S. CT. and now he is endorsing someone who is very liberal. As another poster pointed out, currently the S. Ct. is pretty balanced ideologically so it would seem odd that Kmiec would be concerned (As Ann speculates) with one party making too many of the appointments.

Kmiec, in an earlier piece in Slate in February oddly seemed to indicate that Catholics had to vote based on a litmus test as if the Catholic vote was monolithic. Which was bizarre. He also seemed to indicate opposition to the death penalty and almost equated to abortion, which was odd that he no problem supporting any of the previous Republican Presidents.

He also had no problem supporting Romney who was as hawkish as McCain. In essence, Kmiec is either getting something from the Obama campaign and/or he is a sore louser from the primary. Would he support McCain if picked Romney for VP? The whole thing is just bizarre.

John K. said...

I'm not voting, because I want my abstention to count as a vote against politics and law "making" as we know it. But if I were voting, Kmiec's voting for Obama because (as tmink infers) he sees him as a "good and decent person" (relative to the other candidates), and because Obama opposed the infamous war in Iraq, seems to be based on as good of reasons as any.

Perhaps Kmiec has reached similar conclusions to mine on the issue of abortion, while we both believe that abortion is a great moral evil: that women are going to have abortions whether it's legal or illegal, that not even most pro-lifers think women should be prosecuted criminally for having abortions (though they're okay with prosecuting the doctors the women hired to kill their babies), that doubts about the propriety of using government coercion should be resolved with a presumption against the use of government coercion, and that Republicans as a body don't really give a hoot about abortion anyway (except to the extent they count on pro-life rhetoric steering the pro-life voting bloc their way).

Perhaps Kmiec has also reached conclusions similar to mine on the issue of constitutional interpretation: that government laws are only as legitimate as they are just, that fetishizing about "original meaning" is undercut by an honest examination of the notion of "consent of the governed" upon which the authority of the Constitution supposedly rests, and that Republicans as a body don't really give a hoot about constitutionally limited government anyway (except to the extent they count on libertarian rhetoric steering the libertarian voting bloc their way).

Yes, Obama suffers the willful delusion that "he's from the government, and he's here to help." Being a career politician, he's for Big Government, but then so are both of his opponents. But Obama's version of Big Government at least promises a "preferential option for the poor" (an important concept from the Social Teaching of the Catholic Church, of which Kmiec is a member), which is a dubious and double-edged sword when wielded by Big Government, but which, given the choice, is far preferable to Republicans' "preferential option for the rich."

Simon said...

ireign22 said...
"As another poster pointed out, currently the S. Ct. is pretty balanced ideologically so it would seem odd that Kmiec would be concerned (As Ann speculates) with one party making too many of the appointments."

Yet it will almost certainly not be "balanced" (a deceptive term here, since one ordinarily thinks of "balance" as a naturally postive, healthy attribute) after the next President leaves office, particularly if the next President serves two terms.

By January 2017, David Souter will be 77, Stephen Breyer will be 78, Antonin Scalia, Anthony Kennedy and Ruth Ginsburg will be 80, and John Paul Stevens will be 96 (albeit, likely as not, still more vigorous and healthy than any of the afore-mentioned). I find it hard to believe that more than three of those six will still be on the court, and I don't find it entirely unimaginable that none of them will still be on the court. That has momentous consequences for the election this fall.

The Warren Court, it must be remembered, was limited in how much damage it could do by the haunting memory of economic substantive due process. It had to find other ways to accomplish ends that could have been more directly achieved through means that were then (but are not now) considered outré by (if you'll forgive the terminology) the liberal intelligentsia. Cf. Bernstein, Bolling, Equal Protection, Due Process, and Lochnerphobia, 93 Geo. L.J. 1253, 1258 (2005). And it shouldn't be forgotten that the Warren Court's liberals were not of a piece; as fond as little toads like Jeff Rosen are of saying that the court's conservatives march in lockstep, the court's liberals do so to a far greater extent; the liberal bloc today has no equivalent of Justice Black, still less of Justices Stewart or White.

Moreover, the Warren Court coincided with the growth of the legal process school, which meant that the academy - while liberal, then as now - served as a brake on the raw instrumentalist tendencies of that court. Today, legal process is, let's be kind, resting; it seems to me (although Ann may have a different perspective on this, and I'd love to hear it) that it's mainly an avocation of moderates, federal courts professors, and quirky conservatives like me, which are collectively a minority.

The point that I'm getting at here is that those factors that served as brakes on the Warren Court have evaporated, but the mindset that served as its fuel - "how can we get the right results when legislatures are so obstinately wrong" - remains as desirous as ever.

madawaskan said...

It could be that he's been promised something.

When you are not being truthful- sometimes you are hard to understand.

ireign22 said...

I would also like to mention that Kmiec had ulterior motives for being silent on the Bush administration until now.

His son, obtained clerkships with both Alito and Roberts (probably in part through Kmiec's connections with both). Given that his son was not EIC at Boalt of the Law Review and Boalt unlike Harvard, Yale, or even Chicago is not known as a clerkship powerhouse, it is likely Kmiec's son received preferential treatment. If Kmiec, was cozy with the Dems back in 2005 and 2006, maybe just maybe his son would not have done as well.

While this may affend some posters, there is a good possibility that this factored into his considerations.

madawaskan said...

I take him at his word

Well we don't have much more than that.

The endorsement will likely supply no strategic advantage equivalent to that represented by the very helpful accolades the Senator has received from many of high stature and accomplishment, including most recently, from Governor Bill Richardson.

Kmiec says essentially-that he's no Bill Richardson.

And with that I stop reading his excuses.

I will toss off -a why did Obama divorce himself from Samantha Powers so easily?

Kirby Olson said...

The article frontloads his significant opposition to the Democrats and then endorses Obama because he thinks he can change Obama's mind more easily than he can McCain's.

Something doesn't add up. Perhaps he's just mad that Romney didn't get in.

There will be some fallout along those lines from Hillary supporters if Obama wins, too. They will vote for McCain, and some small percentage may even publicly endorse McCain, too. If Hillary wins, there will probably be some Obama supporters who will switch to McCain.

In the realm of probability, those switches might only amount to 3 or 4 percent, and maybe this is just one of those small anomalies along the way to the election that doesn't necessarily signify a trend. Someone changed their mind.

And maybe his mind is going, too.

Fen said...

Funny how we never hear about "balance" when the liberals hold a SCOTUS majority.

Its a bullshit argument, easily tossed into trashbin.

Palladian said...

I love to watch when, sensing inevitable disaster, a "conservative" such as Kmiec rolls over, drops his drawers and prepares to "take it like a man".

Surely there is something to this phenomenon of pussy conservatives who think that peppering and spicing and salting their unpalatable ideological surrender with so many well-turned phrases and succulent words will make it go down easier.

John Lynch said...

I dunno, maybe it could be that electing a black President could be good for the country in the long term, even if the short term policies he pursues are bad?

former law student said...

Funny how we never hear about "balance" when the liberals hold a SCOTUS majority.

The problem is that no one can remember back to the Ford administration.

Simon said...

former law student said...
"[Funny how we never hear about 'balance' when the liberals hold a SCOTUS majority?] The problem is that no one can remember back to the Ford administration.."

Ford replaced Bill Douglas with John Paul Stevens. Stevens may well have moved left over time, and that may well have been exaggerated by the court's slight rightward drift in the 1980s,* but it can't serious be argued that Ford worried about "balancing" the court, or succeded in keeping the same balance, and I'm sure that it was noticed at the time.

_________
* O'Connor was somewhat more conservative than Stewart; Scalia is a different kind of conservative to Rehnquist; Kennedy is less coherent and, on balance, not really more or less conservative than Powell; Thomas is of course a great deal more conservative than was Marshall, although no more to Marshall's right than Ginsburg was to White's left; Souter is somewhat more conservative than Brennan; the point is that there hasn't been a massive change, but there has been a drift.

Zeb Quinn said...

Here's what the rumor is: In Bush's first 4 years Kmiec's name was bandied about for a judicial appointment, but for whatever reason McCain blocked it as unacceptable. So for Kmiec it's personal.