When Doug Kmiec issued his recent puzzling endorsement of Barack Obama, I asked a simple question:
Prof. Kmiec, that’s all very nice. I’m happy that you feel that, if you vote for the guy who disagrees with aspects of your allegedly fundamental beliefs, he’ll do his best to respect your point of view. But, you see, there is a candidate — his name is John McCain; you might have heard of him — who actually supports the principles for which you claim to stand. Why you are refusing to support him?
The Wall Street Journal Law Blog spoke with Kmiec and asked him exactly that. Here is his response, such as it is:
I have nothing against McCain. Indeed, he was my candidate in 2000, and I would still think him the better choice in 2000. But, perhaps like my time, his time has passed. John’s understanding of warfare is the understanding of, as Tom Brokaw put it, the greatest generation. Just as shock and awe did not prevail in Iraq, McCain’s under-estimation of the cost of deployments both in terms of money, life, and international standing, make him not well suited to protect our national security in a time of terrorist threat.
If nothing else, Kmiec is continuing his streak of issuing bizarre and incomprehensible pronouncements. If you can make heads or tails of that, more power to you. McCain underestimates the cost of war, and therefore can’t defend us against terrorism. But he woulda been great in 2000! (This makes even less sense when you consider that Kmiec endorsed Romney — even though Romney constantly tried to compete with McCain for the title of “Toughest on the Iraq War.”)
Kmiec’s reasoning gets more mush-headed the more you read:
President Reagan used to tell all of us in his administration, and the public generally, that his proudest achievement was making the country feel better about itself. I believe Obama is committed to giving us reason to feel better about ourselves.
Memo to Kmiec: there is no reason the American public should particularly care about your opinions on the war, or Obama’s ability to inspire people. The only reason the public at large might actually care about your endorsement is because you theoretically know something about picking good judges. In endorsing Obama based on some incomprehensible argument about the war (incomprehensible because you endorsed Romney, and still say McCain was the right choice in 2000), you are opining outside your area of expertise. Prof. Kmiec, you are, like all of us bloggers, free to pontificate on areas outside your expertise. You are free to endorse who you like, and to blog it — wallowing in the pigsty of narcissism in which all of us bloggers happily roll around every day.
But your opinion is considered valuable primarily (if not only) because of your legal background and knowledge.
Prof. Doug Kmiec is, to use the famous phrasing of the Simpsons’s fabled attorney Lionel Hutz, a law-talkin’ guy. That’s why people listen to him. He is a professor of constitutional law, a former law school dean, and a former head of the Office of Legal Counsel. It’s his legal background that gives him, in theory, expertise in recommending solid judges. (I won’t attack that expertise by referring to his endorsement of Harriet Miers; many good and smart people endorsed her, from Bill “Beldar” Dyer to John Cornyn.) And it is that supposed expertise, combined with the President’s role in nominating federal judges, that gives Kmiec’s endorsement whatever credibility to which it was presumptively entitled — before he blew that credibility by issuing an endorsement that failed to make the case for his preferred nominee.
So what does Kmiec say about the issue of judges — the only one we should really care about when evaluating his recommendation?
One of the hardest things to reconcile was my concern with the Supreme court, which I do think President Bush, somehow miraculously, deserves credit for. The Chief Justice and Justice Alito are unparalleled. But I view those appointments not as partisan appointments, but rather appointments that, as Roberts tried to articulate, are designed to take politics out of the Court. So when my fellow conservatives say that even thinking about Senator Obama betrays the importance of Supreme Court appointments, I think they’re smuggling in an improper premise – that there aren’t people of integrity from both parties that can do constitutional interpretation in the vision of a limited judicial role.
There’s nothing miraculous about Bush’s success in this area, Prof. Kmiec. Bush ran on a platform of nominating judges in the mold of Justices Scalia and Thomas — and as far as was politically possible, that’s exactly what he did. Now John McCain is running on a platform of nominating judges in the mold of Justices Alito and Roberts. Your candidate, Obama, voted against Roberts and against Alito.
The issue isn’t whether there are people of integrity from both parties who “can do constitutional interpretation in the vision of a limited judicial role.” The question is whether the man you are endorsing is a man who will nominate such people. How in the world can you expect him to, when he cast unprincipled and nakedly political votes against two nominees whom you consider “unparalleled”?
It’s too bad the WSJ Law Blog didn’t pose this question to Prof. Kmiec. What the hell; I have e-mail. I’ll do it myself.
UPDATE: Beldar suggests Kmiec’s endorsement results from temporary insanity. Doesn’t that defense inherently have an expiration date?