Kmiec Calls Pope's Comments "Intrusive" [UPDATED]
(Hat tip: Catholics in the Public Square)
From the man who once said he'd change his effusive views on Obama if the Pope called him to admonish him on the subject:
Obama backer Pepperdine Professor Douglas Kmiec has described Pope Benedict's comments to Nancy Pelosi as "intrusive" because they put the whole judicial system in an impossible moral dilemma.My Comments:
Catholic News Agency reports that in his piece in Time magzine Prof. Kmiec implied that the Pope exaggerated or at least did not measure the consequences of his words when he told Nancy Pelosi that "jurists," in addition to legislators, must work "in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development."
According to Kmiec, such a statement "has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists, and perhaps all other Catholics who sit on the bench in the lower federal and state courts.
The Pepperdine professor suggests the Pope, instead, could take "a different, less intrusive course," by "continuing to observe the difference between a jurist and a legislator."
"Few are pleased with the abortion jurisprudence as it is," argues Kmiec, but by "imposing moral duties on Catholic jurists that are incompatible with their envisioned judicial role in a democracy," Pope Benedict XVI "is hardly likely to make it better."
Edward Whelan, President of the Ethics and Public Policy Center and director of its program on The Constitution, the Courts, and the Culture, questioned "whether Kmiec's reading (of the Vatican statement) is actually a careful one."
"For starters, Kmiec assumes that the term 'jurists' is equivalent to 'judges'," Whelan explains, when actually the terms applies to "any person who possesses a degree in law."
The EPPC expert explains that "even if the statement does apply to American judges, all it says is that 'jurists' should 'work in co-operation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.' Kmiec turns this into an "admonition to 'jurists' to undertake an activist, law-changing role. But the statement doesn't compel that reading."
I think we can kiss that ambassadorship goodbye at this point.
So much for listening to what the Holy Father has to say on the subject of pro-life politics. Prof. Kmiec has tasted the dissident Kool-Aid and seems to have decided he likes it.
(Hat tip: Opinionated Catholic)
Fr. Z makes an important point about Kmiec's comments:
... Kmiec wants the reader to accept the premise that the Pope is imposing a new moral duty imposed on jurists, a duty to "undertake an activist, law-changing role".(emphasis in original)
The Pope didn’t say that at all. The statement does not say that jurists must be activists. It says that jurists should "work for a system of law capable of protecting human life at all stages of its development".
Kmiec says that there is now a "new directive" from Rome. There isn’t.
Here is the slight of hand: Kmiec says the Pope says that judges must use judicial activism in order to limit abortion, implying that they should "legislate from the bench" as judges do when they interpret the US Constitution broadly instead of narrowly or strictly). Kmiec reasons that the Pope is saying that if judges don’t oppose abortion by employing this kind of activism, then they are guilty in the same way as Catholic legislators are when they promote abortion rights.
Again, that is not what the Holy See’s statement says.
The statement did not, as Kmiec claims, impose "moral duties on Catholic jurists that are incompatible with their envisioned judicial role".
Kmiec wrongly interprets the papal statement as putting jurists and legislators in the same category so that their responsibilities about protecting human life must be exercised in the same way. Kmiec says the pope doesn’t recognize that there are different roles.
Remember that Kmiec is writing for the for TIME/CNN machine, which has its expectations. He is using "activist" as the polar opposite of "originalist". I think he uses "originalist" because it sounds more like "fundamentalist" than "strict constructionist" would. On the surface, Kmiec is trying to make it seem that the Pope came out against originalism embraced by Justice Scalia. In other words, you can no longer hide behind originalism. Kmiec says the Pope says you MUST become a judicial activist.
All of that said….
My biggest problem with Kmiec’s article is how he seeks to undercut the Pope’s authority. He is suggesting that the Pope is being unreasonable...
[Read the whole thing]
See also "Kmiec's epic fail in Time magazine" at American Papist.
The Passion of the Kmiec - A Pro Ecclesia Timeline:
Kmiec Calls Pope's Comments "Intrusive"
Catholic World Report: "Douglas Kmiec and His Misinformation Offensive for Barack Obama"
Kmiec Claims He's In the Loop for Vatican Post
American Papist's Open Letter to Prof. Kmiec
Kmiec the Martyr
Prof. Kmiec Eulogizes Fr. Neuhaus in a Manner That is All About Prof. Kmiec and Justifying his Obama Vote [UPDATED]
Prof. Bainbridge on Doug Kmiec and U.S. Diplomatic Relations with the Holy See
Vatican Official Says Kmiec Will Not Become New Vatican Ambassador
The Kmiec Catholic Re-Education Camp
Former Student of Prof. Kmiec Calls Him Out on "Revealing His True Colors"
A Modern-Day "Vicar of Bray"
Douthat Smacks Kmiec
Amy's "Wrap-Up" of Pre-Election Abortion Coverage
George Weigel on Kmiec's "Flawed Thinking"
Archbishop Chaput: Kmiec Doing a "Disservice to the Church"
Mainstream Media Compliant in Obama's "Faith Outreach" Pitch
Bill Donohue: "I'm Catholic, Staunchly Anti-Racist, and Support David Duke" [UPDATED]
Debate Over at Amy's: Should Catholics Work for Legal Restrictions on Abortion?
Deacon Fournier Puts Smack Down on Prof. Kmiec
Kmiec's Payoff? [UPDATED]
The Obama-Kmiec Magical Mystery "Faith Tour"
Deacon Fournier: "Doug Kmiec’s ‘Can a Catholic Support Him?’ Asks the Wrong Question"
Ponnuru Raps Kmiec for Defending Obama's Born-Alive Vote
"Separate But Equal" Redux - Pro-Life Edition
Mark Stricherz: "Why the Democratic Abortion Strategy is Worse"
Whither the "Catholic Vote"? Some Interesting Posts at the Fidelis Blog
Darwin Catholic: "Douglas Kmiec, Master of Dissembling" [UPDATED]
Prof. Rick Garnett on Kmiec's "Missing the Point"
A Former Student of Prof. Kmiec Speaks Out ...
Prof. Kmiec Shifts the Goalposts
Kmiec's "Bridge Too Far"? Obama's Attacks on Justice Thomas
Without Further Ado: Doug Kmiec on McCain v. Obama at Saddleback [UPDATED]
Paging Prof. Kmiec ...
Doug Kmiec Claims Democrats Making "Steps Toward Honoring Life" in Platform
Prof. Garnett Takes on Prof. Kmiec ... Again
Casey Jr. to Get Prime-Time Slot in Denver to Appease Catholics [UPDATED]
Fr. Neuhaus Responds to Doug Kmiec
Deal Hudson's Open Letter to Doug Kmiec
National Catholic Register on Catholics, Kmiec, and Obama
Prof. Hadley Arkes: "Political Distraction Among the Catholics"
Doug Kmiec - What He Said Then vs. What He Says Now Re: Constitutional Jurisprudence
What is the "Pro-Life Position" Regarding Abortion?
Doug Kmiec: "After Meeting with Barack" [UPDATED]
Cranky Conservative: "But At Least He Says It with a Smile"
Doug Kmiec Again Places Platitudes Above Policy [UPDATED]
Prof. Bainbridge on "Obama, Abortion, & Catholics"
Prof. Rick Garnett on Kmiec's Latest Nonsense
Deacon Keith Fournier: "Why I Disagree with Doug Kmiec, Once Again"
Give It a Rest Already, Prof. Kmiec!
Doug Kmiec's Newfound Celebrity Status Among Those on the Left
Doug Kmiec Soon To Be Sorely Disappointed
E.J. Dionne on Kmiec Being Denied Communion [UPDATED]
Deal Hudson on Prof. Kmiec and Blurring the Lines Between "Pro-Choice" and Pro-Abortion
Did Doug Kmiec Just Now Catch On That Obama and NARAL Are Politically Conjoined? [UPDATED]
Deal Hudson on "How Obama's Catholics Will Dodge the Infanticide Question"
Kmiec's Dishonesty [UPDATED]
Catholic Teaching and Political Risk Taking: When Credit Isn't Given Where Credit is Due [UPDATED]
Kmiec's Wishful Thinking on Obama and Abortion
The Curt Jester: "Shameless Garment" [UPDATED]
So-Called "Catholic Reaganite" Doug Kmiec Endorses Obama [UPDATED]
No'bama for Me, Thanks"
Can a Catholic Vote for Obama?
Obama's Pledge to Planned Parenthood: "I Will Not Yield"
"Why American Catholics are Supporting Barack Obama"
How the Catholic Left Will Tackle McCain
Why Does Kmiec Criticize McCain for Positions on Which He Gave Romney a Pass?
Deal Hudson on "Douglas Kmiec and the Lure of Obama"
Douglas W. Kmiec on "The Moral Duty to Inquire"
Professor Bainbridge: "Will Catholic Reaganites Go for Obama?"
Deal Hudson: "Preacher Man: Barack Obama and the the Gospel of Liberalism"
"Sorry, Doug Kmiec, But This Catholic Isn't Buying Obama"
Ramesh Ponnuru on Douglas Kmiec and "Catholic Reaganites for Obama" [UPDATED]
Romney Advisor Says Obama "a Natural for the Catholic Vote"