By: Peter Zavodnyik

Peter Zavodnyik — Mon, 20 Apr 2009 18:45:41 +0000

As an alumnus of ND Law School and a former student of Professor Kmiec, I am disappointed to watch the decline of a person who was once among the young rising stars of the conservative legal movement.
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Kmiec reminds of Caleb Cushing, a brilliant Harvard-trained 19th lawyer who went from introducing abolitionist petitions in the House of Representatives with John Quincy Adams in the 1830’s to being among the last and most notorious of the northern doughface Democrats when he serve as Pierce’s attorney general during the 1850’s. He wrote an opinion as attorney general in 1854 that foreshadowed Dred Scott with its assertion that the Missouri Compromise violated the Constitution, and that Congress could not prohibit slavery in the territories. By the time the secession crisis rolled around, Cushing was actually telling the South it had a duty to secede.
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> What makes the comparison especially apt is the fact that Kmiec has gone from being a pro life scholar acutely aware of the deficiencies of Roe v. Wade to an being an apologist for pro choice politicians and the worst decision of the Supt Ct during the 20th century. Like Cushing, Kmiec went through a startling change in mid-career that had the convenient effect of endearing him to the powers-that-be in the resurgent Democratic Party. Of course Cushing at least obtained something for his trouble–appointment as attorney general–while Kmiec is unlikely to receive what I suspect has been his longterm goal–appointment to the federal bench–from the Obama administration. (As a side note, I recall that Kmiec wrote an article in the Wall St Journal announcing that he was about to be nominated for the fed bench, and complaining that certain Dem senators had singled him out as unacceptable for wearing his religion on his sleeve. My guess is that the Bush admin backed off nominating him after that.)
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> If I understand correctly, Kmiec takes Obama at his word that he will seek to reduce the number of abortions and finds that satisfactory. One can only imagine what would have happened if northerners had resigned themselves to merely seeking policies that sought to reduce the incidents of slavery.
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> The really appalling thing about Kmiec, and the quality of his that reminds me of Cushing, is that he seems incapable of saying any Dem Party excess on the abortion issue makes Dem candidates, such as Obama, unacceptable. No matter the extreme, such as partial birth abortion, Kmiec cannot find it in himself to say ‘enough is enough.’ It is reminiscent of Cushing swallowing whole the South’s demand for a territorial slave code after years of saying Congress could not enact laws on the subject of slavery in the terrs. No matter what extreme measures southerners dreamed up, Cushing swallowed them whole and then asked for more.
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> My guess is that Kmiec is driven by his own anger at the Republican Party for its failure to recognize his allegedly ample talents and place him on the federal bench.

Comments on: There He Goes Again! Kmiec’s Latest Obamapology

By: Peter Zavodnyik