Religion & Law

Kmiec's response: A clarification

By Rick Garnett

With respect to Prof. Kmiec's response to my recent post -- about the Court, Sen. Obama, etc. -- a quick clarification:  I did not say that my friend Doug Kmiec's "interest in Obama" was "supremely odd."  Those (somewhat cutesy) words were, I gather, selected as the caption for my post by the good folks who run the "Bench Memos" blog where the post appeared.  Also -- I realize this point might seem nit-picky, I think it matters:  I did not say that Prof. Kmiec's "interest in Obama" was misguided -- certainly, Sen. Obama is interesting -- but that Prof. Kmiec's Slate essay, in which he made the argument that Sen. Obama "is a natural for the Catholic vote", was misguided.

Prof. Kmiec writes:

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.

The fact -- and, Doug and I agree that it is a fact -- that "the law" has a "reality apart from what our favored political side may assert at any given time" does not change the fact -- and, this is also a fact -- that it is eminently reasonable (i.e., it is not a "fools game") to take seriously that, whether we like it or not, the Supreme Court is, with respect to many issues about which Doug and I care, where the action is.  Wishing this were not the case, or hoping it will someday not be the case, does not make it not the case. 

Doug also writes:  "[A]n 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."  Yes, he or she could.  I am not a fan of Justice O'Connor's reasonable-observer standard either, but . . . she voted correctly in Zelman and many, many other religion-related cases.  In any event, the question is not whether an Obama nominee would be worse (on religion or anything else) than Justice O'Connor, who has retired from the Court, but whether an Obama nominee would be worse (from the perspective that Doug and I share about the Constitution's meaning) than a McCain nominee.

Full post as published by Mirror of Justice on March 10, 2008 (boomark / email).