In one of the most vacuous statements I’ve ever read, Douglas Kmiec has endorsed Barack Obama for president. Kmiec is a Republican who served in the Justice Department under President Reagan and the first President Bush. Until recently, Kmiec was co-chair of the Romney for President Advisory Committee on the Constitution and the Courts. In that capacity, he wrote a piece on Power Line explaining why he supported Romney.
Kmiec stated, in part:
Grasping the significance of the rule of law is one of the most understated aspects of the current presidential campaign. While virtually every Republican candidate has said something adequate about avoiding judicial activism, legislating from the bench, or a la Richard Nixon, being a strict constructionist, only one, Mitt Romney, truly has demonstrated by his state executive experience as Governor that he is capable of sustaining, without the distractions of politics or friendship, an historically-informed appreciation for what John Locke meant by the rule of law in his Treatise on Government: general enactments, prospectively applied, that are enforced evenhandedly and interpreted by a disinterested and capable judge. . . [M]y conversations with Governor Romney and study of his past state judicial appointments convince me that a President Romney will make nominations in the tradition of Roberts, Alito, Scalia and Thomas, and before all else, will insist that the women and men to be appointed have a demonstrated record of valuing the rule of law in the fuller sense discussed here.
Kmiec went on to identify the issues of particular concern to him as to which Romney had demonstrated a correct understanding of the rule of law, as well as the proper role of judges. He cited the question of the applicability of the writ of habeas corpus to the continuing reality of terrorism, wondering whether military commanders really were going to be hauled into district court to answer those captured in battle. He also identified the issues of child pornography, the District of Columbia’s handgun ban, the misguided efforts of judges to second-guess Congress’ stiff sentences for using and dealing crack cocaine, and the requirement by states of proper identification by those seeking to vote (which Kmiec viewed as raising no legitimate civil rights issue).
Having thus established what purportedly matters to him, from a legal standpoint, in a president, one might have expected Kmiec to consider how any future candidate he would endorse stacks up on these issues. Indeed, intellectual honesty would seem to require no less.
In his endorsement of Obama, though, Kmiec is entirely silent on all of the specific issues that mattered to him less than half a year ago. And for good reason. There is no indication that Obama agrees with him on the rights of terrorist detainees, the sentencing of crack cocaine users and distributors, the hand-gun ban issue, and preventing voting fraud (not to mention the social issues — e.g., the rights of the unborn — Kmiec cites in his endorsement of Obama).
On the more general, and crucial, questions of the rule of law and the proper role of judges, the best Kmiec can offer is: “I am convinced based upon [Obama’s] public pronouncements and his personal writing that on each of these questions he is not closed to understanding opposing points of view, and as best as it is humanly possible, he will respect and accommodate them.” But why conservatives should vote for a candidate who probably respects conservative views, instead of a candidate who more often than not agrees with them, Kmiec never explains.
Kmiec assures us that Obama “will cast his net widely in search of men and women of diverse, open-minded views and of superior intellectual qualities to assist him in the wide range of responsibilities that he must superintend.” That’s nice. But why has Kmiec abandoned the standard he applied last October — “mak[ing] nominations in the tradition of Roberts, Alito, Scalia and Thomas, and before all else, insist[ing] that the women and men to be appointed have a demonstrated record of valuing the rule of law.” Kmiec doesn’t say.
On the non-legal front, Kmiec is at least as incoherent. He is clearly unhappy that President Bush, in his judgment, “has involved our nation in a military engagement without sufficient justification or clear objective.” He also believes that “the office of the presidency. . .has been distorted beyond its constitutional assignment.” But Mitt Romney was as much a supporter of the war in Iraq as John McCain, and a more consistent supporter of the way Bush has used the presidency in furtherance of prosecuting the war on terror. Kmiec nonetheless was willing to take a lead role in advising Romney, and arguing on his behalf.
Kmiec goes on to state:
9/11 and the radical Islamic ideology that it represents is a continuing threat to our safety and the next president must have the honesty to recognize that it, as author Paul Berman has written, “draws on totalitarian inspirations from 20th-century Europe and with its double roots, religious and modern, perversely intertwined. . . .wields a lot more power, intellectually speaking, then na
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