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Garnett on Kmiec on Obama and the Supreme Court

Law professor Doug Kmiec has been a leading voice in the conservative loegal movement, which is why his recent flirtation with Barack Obama has surprised so many of us who have long admired him. Rick Garnett takes on Kmiec’s latest pro-Obama piece:

Prof. Kmiec is back with a follow-up, “A Prayer from Barack Obama.” The views expressed in this piece — like the ones expressed in the first one — are difficult for me to reconcile with Prof. Kmiec’s work and record. Particularly strange, though, was his answer to the objection he anticipated, namely, “Kmiec, get real, just think who Obama will appoint to the Supreme Court”. (Indeed.) Kmiec’s answer: “[I]sn’t it time for both sides to stop treating the Court like a political sinecure? Chief Justice John Roberts Jr. has done an able job of lowering the Court’s profile. Even when the Roberts Court takes on big issues — such as ‘partial-birth’ abortion [RG: since when does Prof. Kmiec use the New York Times-required scare-quotes when talking about partial-birth abortion?] and racial tie-breakers — it has a knack of writing small, preferring the ‘as applied’ to the ‘facial’ challenge.” ...

I have no idea what Kmiec means when he suggests that both sides should stop treating the Court like a political “sinecure”, i.e., an office that requires little or no work and that usually provides an income. If he means that “both sides” should stop treating the question of Supreme Court appointments as such an important one, because our Nation’s most pressing moral questions should not be decided by unelected federal judges, well, then I can only assume that my friend Doug Kmiec is being held hostage someplace and that an alien unfamiliar with the Supreme Court’s history for the past 50 years is penning op-eds in his name. Yes, it sure would be nice if Supreme Court appointments did not matter much. But, they do; Prof. Kmiec knows this, and he knows why.

Darn straight. Judges matter. A lot. Which is why this conservative is going to hold his nose and vote for John McCain, despite having publicly sworn not to do so.