Doug Kmiec Responds to Robby George and Rick Garnett

March 9, 2008 

Why the Supreme Court should be irrelevant to Senator Obama’s candidacy

Douglas W. Kmiec

[Professor of Constitutional Law and Caruso Family Chair in Constitutional Law, former Dean and St. Thomas More professor of law at The Catholic University of America; constitutional legal counsel to President Ronald Reagan.]

             Over the past several weeks since writing several essays suggesting it was appropriate for Catholics and Reaganites to more carefully examine the candidacy of Senator Barack Obama, I have benefitted from many thoughtful exchanges.  Most recently,  Professor Richard Garnett of Notre Dame finds my interest in Obama to be “misguided” and “supremely odd.”  My error, it seems, is failing to appreciate the significance of appointments to the Supreme Court as an issue in the presidential campaign.  It is not surprising to me that Republicans and Democrats alike want to highlight this as an issue because criticizing the Court’s past mistakes (viz. outcomes the particular writer disapproves) has grown into a major industry and has proven to be a useful electoral spur to get out the vote.

             In his NRO Bench Memo essay of March 5, Professor Garnett states that he has “no idea” what I meant by suggesting in a recent essay (“A Prayer from Barack Obama, March 3, 2008) that both sides stop treating the Court like a “political sinecure.”   While we might debate whether the word “sinecure” captures the intellectual difficulty of Supreme Court work,  scholars have used the term “judicial sinecure” to express concern over the un-accountability of the modern Court, especially since – unlike the high courts of 49 of the 50 states – U.S. Supreme Court justices serve without term limit and in recent times, this has meant an average service in excess of 25 years. When you add the adjective “political,” aptly reflecting the politicization of appointment and confirmation – a fact that successful and unsuccessful nominees have both decried – my point, I think, is reasonably plain: we do not advance the interests of the rule of law by making the Supreme Court a campaign issue, no matter who our favored candidate happens to be.  It is always fashionable in law schools to assume the legal realist posture that judges just make the law up to match their political objectives, but thankfully, it is a precept not yet indulged by the general public.  Moreover, as someone convinced that the law has a reality apart from what our favored political side may assert at any given time, (an idea anchored in both the separation of powers and the Natural law with which Professor Garnett’s institution has an important historical association), evaluating presidential candidates as an exercise in handicapping judicial appointments is a fools game.

            Some of us actually thought in working to secure the appointments of John Roberts and Samuel Alito that we were establishing – rather impressively –  a record for evaluating judicial candidates on the basis of integrity, learning, competence, temperament, and fidelity to enacted meaning.  This seems to me to be the right approach at any time, but especially advisable when one is about to confront a Senate majority approaching or exceeding 60 in the opposing party.

            Second, while Professor Garnett shares my admiration for the Supreme Court under John Roberts,  he questions whether I have correctly assessed the direction of the Roberts Court as seeking a lower profile.  Certainly, the Roberts Court is deciding fewer cases (down from 150 in the 1980s to likely less than 70 this year), and thus by the number of decided cases alone, having less opportunity to affect the lives of Americans.  Yes, the Court has decided recent cases dealing with abortion, the use of race in public decision-making, and federalism, but unlike the cases on those subjects during the Burger, Warren, and even Rehnquist Court eras, the scope of these decisions is mostly change at the margin. The Roberts Court rebuffed a facial challenge to a narrowly drawn limitation on one, rather extreme abortion procedure; the Burger Court created the abortion “right.”  The Roberts Court limited the use of race in a narrow context of a few hundred students; the Warren Court dismantled separate but equal for millions of children; the Rehnquist Court made a run at trying to dis-aggregate what is national from what is local responsibility striking down a statute limiting guns in school zones nationwide; the Roberts court seems to have given over much of this and related federalism inquiries to deference to Congress under the necessary and proper clause.

            Third, and relatedly,  I speculated that the Court was concentrating on less constitutional decision-making and more narrow statutory interpretation.  I tossed in some additional, light-hearted speculation about Justice Stevens’ longevity suggesting that it was starting to rival Biblical ages, and given that, with little prospect for immediate turnover, “the Court might soon not remember its previous, more activist history.”  I couldn’t get a smile out of Professor Garnett even with this reference.  Instead, he somberly predicted that Justice Stevens good health will merely push the vacancy into an Obama administration and that would cause the court to “flip” on issues that he and I both think important, such as “a better understanding of church-state” relations.   Now of course I do wish Justice Stevens nothing but the best, and I have no idea whether he will outlast Methuselah (900 years) or only Noah’s precocious son, Shem (600 years), but I am willing to venture this: an Obama appointee could do no worse on church state relations than the entirely subjective and unpredictable (10 Commandments here, but not there), “reasonable observer” standard visited upon this subject by Reagan appointee Sandra Day O’Connor. 

            For an all too brief period of time, I was privileged to be the legal adviser to a presidential candidate who had no intention of letting some “(un)reasonable observer” strip the United States of its religious sense and sensibility.  Like John Adams, he knew, that our Constitution “was made for a moral and religious people.” Echoing the sentiments of Thomas More, he understood that “Americans tire of those who would jettison their beliefs, even to gain the world.” Mitt Romney did not forego his religious commitment.  Instead, Governor Romney articulated what may be the wisest statement of the 2008 campaign: “Freedom requires religion just as religion requires freedom,” he said.  “Freedom opens the windows of the soul so that man can discover his most profound beliefs... .” Freedom and religion endure together, or perish alone.” Romney’s  candidacy would perish within a matter of months.  There were perhaps multiple reasons, but surely one was the consequence of some of the most shameful religious prejudice in our modern history.

            But that, as they say, is old news.  Moving to the field of candidates as it now exists, it would be enough if our next president might simply understand that “a sense of proportion should guide those who police the boundaries between church and state.” This hypothetical president might actually grasped that “not every mention of God in public is a breach of the wall of separation – context matters.”  Such a commonsense president would know that: “it is doubtful that children reciting the Pledge of Allegiance feel oppressed or brainwashed as a consequence of muttering the phrase ‘under God’.”  Indeed, this president with a sense of history about the importance of faith in American life might know that “having voluntary student prayer groups using school property to meet should not be a threat, any more than its use by the high school Republican should threaten Democrats.  And this problem-solving president might even appreciate that “faith-based programs – targeting ex-offenders or substance abusers – offer a uniquely powerful way of solving problems” and they can be put in place without offending a single syllable of the Constitution.  Most of all, such a president would understand that “people are tired of seeing faith used as a tool to attack and belittle and divide.”

            Those are Senator Obama’s words, and I have to believe that my friend Professor Garnett finds them to be as intriguing as I do, for they reflect principles of religious freedom to which Professor Garnett has written eloquently.   More than anything else, these sentiments of faith’s importance to our nation’s well being and prosperity to explain why no amount of electoral speculation about the unfortunate reality of many to aid and abet the Supreme Court playing an unauthorized political role causes me to lose interest in the Senator. 

            No, my interest is only tempered – and it is seriously so –  by the fact that Senator Obama is also on record supporting abortion, which my faith instructs is an intrinsic evil that cannot be justified. There is no finer expression of this objection than that put by Princeton’s Professor Robert George, thoughtfully brought to my attention by Emory’s very distinguished legal philosopher Professor Michael Perry.  Professor George makes a good case, that as he sees it, John McCain is less likely to support legislation enhancing funding for embryonic stem cell research (even though he is on record supporting such research with “spare,” rather than cloned embryos) or adding to the public funding of abortion in the United States or foreign nations.

            Professor George’s belief that Senator Obama’s policies would not reduce the pressure for abortion must be seriously assessed.  In this regard, the American Catholic bishops teach that it is a voter’s prudential obligation to fully consider how best to reduce the incidence of a matter of grave evil.  While a voter’s intent can never be to lend support to the killing of the innocent, voters must “not use a candidate’s opposition to an intrinsic evil to justify indifference or inattentiveness to other important moral issues involving human life and dignity.”  So with due respect to Professor George, we do need to deduce as best we can whether or not Senator Obama’s endorsement of both abstinence and contraception (if in form not implicating abortion) would or would not significantly reduce the occasion for the taking of innocent life.  But, of course, there’s more.  There is also the grave moral question of the killing in Iraq, and the respective policies of McCain v. Obama.  What, for example, are the collateral economic consequences of what Nobel Prize winning economist Joseph Stiglitz finds to be a “Three Trillion Dollar War?” Would Senator McCain’s extended deployment of troops so worsen the prospects for low and moderate income families in the present war-induced recession in ways that would increase the incidence of abortion?

            At the very least, it is not a simple question of a voter guide that would categorically dismiss a consideration of Senator Obama as “nonnegotiable.”  As Professor Amelia Uelmen , the director of the Institute on Religion, Law and Lawyers’ Work at Fordham has written: “what is often at stake in political debate and in the political process is not the definition of an action as good or evil, but the questions of how to remedy a given evil in a particular social context. . . . . [D]efining abortion as an intrinsic evil does not answer the question of how to reduce abortions in our society.”   Certainly, it would not be “supremely odd, “ to think our moral duty is to pay attention to a candidate like Barack Obama who manifests a serious, and apparently genuine, understanding of faith and its importance.  Catholics or other persons of faith who undertake this duty will not be able to subscribe to Senator Obama’s position on abortion and contraception and stem cell research, but it should not go unnoticed that even in speaking to the Planned Parenthood organization, he – unlike so many Democrats of the past who have failed to grasp the depth and the tragedy of abortion on demand -- did not pander.  Instead, Senator Obama reminded his Planned Parenthood audience that he has “two daughters and he wants them to understand that sex is not something casual” or to be taught as part of the regular curriculum.  “Some of this is legislative,” he reflected, “but some of this is also having a president who’s willing to talk about these issues in an honest and responsible way.”   

            Indeed, some of that honest and responsible talk is realizing that as people of faith who choose life, it is up to us in our families and in our churches to make that choice a moral imperative, and in so doing, to make the Supreme Court of the United States on this issue as irrelevant as it should have been all along.