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Monday, March 24, 2008

Puzzling through Prof. Kmiec's endorsement of Obama

This (by Pepperdine University Law Prof. Douglas W. Kmiec, a genuine legal star in the Reagan and Bush-41 Administrations) is the least persuasive and most hang-dog endorsement (of Barack Obama) that I've ever seen. If it were written in a newspaper, I'd have suspected that it had been butchered by the editors, and that they'd mistaken the substance for the fluff and mistakenly hacked out all of the former to meet some very sharp and arbitrary word-count. But this is a self-published post on Slate.com's new legal blog, "Convictions," so Prof. Kmiec lacks that excuse. We must grade his essay as if it were his best work, or at least his work (and not some editor's mangled version).

Objectively, he gets an F. In fact, were I his professor, I wouldn't even accept this as a completed assignment. Instead I'd return it to him with instructions that his endorsement must at least either (a) offer good reasons to vote for the candidate who he's endorsing or (b) offer good reasons to vote against the opponent of the candidate who he's endorsing. Prof. Kmiec has done neither.

Of Obama, Prof. Kmiec has nothing to point to but the very vaguest of hopes. He acknowledges that on a series of vital issues that are important to him (Kmiec), Obama stands philosophically opposed. The best Prof. Kmiec can hope for, as he acknowledges, is "that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them." This amounts to a naïve hope that after Obama has done his dead level best to thoroughly defeat Kmiec and everyone who shares Kmiec's positions, Obama won't be gratuitously insulting.

Of his (Kmiec's) own party's nominee, John McCain, not a single substantive word is spoken. Indeed, the name "McCain" appears only at the end, as part of an acknowledgment that Obama hasn't yet said anything to justify Kmiec's (or any conservative's, or any Republican's) confidence on foreign policy and national security:

Sen. Obama needs to address this extremist movement [i.e., radical Islamic ideology] with the same clarity and honesty with which he has addressed the topic of race in America. Effective criticism of the incumbent for diverting us from this task is a good start, but it is incomplete without a forthright outline of a commitment to undertake, with international partners, the formation of a worldwide entity that will track, detain, prosecute, convict, punish, and thereby stem radical Islam's threat to civil order. I await Sen. Obama's more extended thinking upon this vital subject as he accepts the nomination of his party and engages Sen. McCain in the general campaign discussion to come.

Doug: He's against the war. He wants to pull out immediately, ASAP. He's a Hard Left MoveOn.org Democrat on this issue, and if there's a single issue that defines him as a candidate and distinguishes him from the GOP's candidate, that's exactly it! What nuance are you waiting for from Sen. Obama that suddenly is going to persuade you that he's outlined a "commitment to [defeat] radical Islam's threat to civil order"?

In fact, the only glimpse of a rationale for Prof. Kmiec's endorsement is in this passage:

Our president has involved our nation in a military engagement without sufficient justification or a clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.

Okay, as Bush Derangement Syndrome goes, that's a pretty mild case, I suppose. And it certainly is possible to be a critic of the Bush-43 Administration's overall handling of the war in Iraq (we have to guess that that's what Prof. Kmiec was referring to, but maybe he actually meant Iraq and Afghanistan) while simultaneously recognizing that America continues to face real and grave threats from its terrorist enemies — threats that demand more than lip service (of the sort that characterized Clinton-42 and would characterize Clinton-44). Indeed, the most conspicuous example on the recent and current American political scene who's taken that position is ... Sen. John McCain.

If Prof. Kmiec believes that McCain is McSame, he hasn't persuasively argued that case. If Prof. Kmiec believes McCain is materially different than Dubya, he hasn't acknowledged that, nor offered any explanation for why those differences between McCain and Bush leave him still inclined to endorse Obama (whom he practically admits is an entirely unknown and unproven quantity in this area).

Having failed to do either, the only conclusion that can be drawn from Prof. Kmiec's essay is that he's a single-issue voter — re-elect or reject George W. Bush — in an election in which that won't be one of the choices.

Prof. Kmiec writes that he expects some of his friends to "see this as a matter of party or intellectual treachery." I don't think that's likely, at least not from those who give him due credit for his past and, hopefully, future service to America. All this endorsement essay amounts to is a personal repudiation of George W. Bush, and an admission that Prof. Kmiec, like so many others, has become swept up in Obama-mania — in this context, the romantic and entirely irrational belief that because Obama is a man of "integrity, intelligence, and genuine good will," he won't govern exactly like a Democrat from the south side of Chicago.

So: Of uncharacteristically unpersuasive writing on this one occasion, Prof. Doug Kmiec so far stands convicted. (I say "so far" because I hope that he may spontaneously recant — and when and if he does, I expect better, more persuasive prose from him then!) But "traitor"? No, why would one insist on that awful label, when one can't first rule out — and indeed, there appears to be a powerful case for — temporary insanity?

Posted by Beldar at 11:35 PM in 2008 Election, McCain, Obama, Politics (2008) | Permalink


Other weblog posts, if any, whose authors have linked to Puzzling through Prof. Kmiec's endorsement of Obama and sent a trackback ping are listed here:


(1) Gregory Koster made the following comment | Mar 25, 2008 12:46:28 AM | Permalink

Dear Mr. Dyer: I don't know if you've seen this:


It's a post by Paul Mirengoff of the Powerline gang, blasting Kmiec, but on rather different lines than you chose. He points out that Kmiec previously endorsed Mitt Romney, basing a sizable part of his endorsement on Romney's record of judicial appointments as Governor. Complete absence of judicial nominations in Kmiec's SLATE piece, leading Mirengoff to conclude that Kmiec's endorsement of Obama can't be taken seriously. If so, either Kmiec is a fool (in which case, how did he rise so high in his government posts) or a knave of the worst sort, tossing out insincere endorsements just to confuse others. This leads to my question: will this damage him academically or professionally? If no, why not?

You can't be surprised at the tone: it was published in SLATE, where attitude is all, and the truth isn't even recognized, let alone considered to be a touchstone. Mickey Kaus has been pressing his luck for a long time.

Also think he is off the beam about Obama needing to discuss the conflict in Iraq, "with the same clarity and honesty with which he has addressed the topic of race in America." That's exactly what Obama has done, though I freely admit that the intellectual level is wretchedly low.

Sincerely yours,
Gregory Koster

(2) Xrlq made the following comment | Mar 25, 2008 6:00:38 AM | Permalink

Kmiec went goofy years ago in my book, but this endorsement takes his goofiness to a whole new level. I was particularly amused by Kmiec's statement that some may view his endorsement of the Obamessiah as an act of "intellectual treachery." Did he really think his content-free screed would be interpreted as "intellectual" anything?

(3) Beldar made the following comment | Mar 25, 2008 9:19:12 AM | Permalink

Mr. Koster, at many, and perhaps most, American law schools, Prof. Kmiec's endorsement of Obama would, if anything, help his academic and professional prospects. It's possible that Pepperdine might be an exception to that because Ken Starr is the dean, but my guess is that they've probably spoken about this from time to time already. More significantly, based on the positions and responsibility he's already had in previous administrations, many people would consider him to be a likely candidate for future public service positions as well. That is, going back into government is a not unlikely alternative to a standard academic career track for him, and there are probaly also various policy think-tanks that would welcome someone of his stature. Overall, I doubt that this endorsement will hurt his total career prospects, but one would think it likely to guarantee his continued exile from government office during, say, a McCain Administration. But even that may not be correct, and in fact, that might account for the conspicuous silence about McCain in the endorsement.

Of course, the endorsement might be a great career boon — in an Obama Administration. An extreme cynic would suspect that Prof. Kmiec is angling to be a token Republican in an Obama cabinet. I think that sort of explicit quid pro quo understanding is very unlikely — but then, I would have thought this endorsement unlikely too. Obama would quite possibly try to snare some high-profile Republicans — but not likely for Attorney General, which is far too sensitive a position for him to entrust to a Republican without completely freaking out his base (which someone with Kmiec's strong right-to-life credentials would certainly do).

Between them, Romney, Giuliani, and Thompson had attracted a great many of the experienced and/or highly regarded conservative legal stars. I think most folks assumed that Kmiec, like the others, would likely either wander back to McCain or, at most, sit out.

(4) Gregory Koster made the following comment | Mar 25, 2008 6:01:58 PM | Permalink

Dear Mr. Dyer: I didn't write it clearly enough. It isn't that endorsing Obama would do much either way for Mr. Kmiec. It's endorsing Obama within six months of endorsing Mitt Romney. That, I would think, would show the world that Mr. Kmiec is a wild man, with a taste for roller coasters, maybe even kamikaze.

Sincerely yours,
Gregory Koster

(5) DWPittelli made the following comment | Mar 25, 2008 8:32:43 PM | Permalink

Perhaps Kmiec, is mostly concerned that we not have the Clintons in the White House, but he does not want to focus on the negative in his writings. Thus he can only allude to Obama's relative good character.

However, even that good character is open to question. For example, the issue of Obama's pastor Jeremiah Wright's angry and unhinged sermons, is not a bogus issue. But I don't see how, in the real world where Democrats must choose between Obama and Clinton -- politicians of similar ideology, but quite different character and history -- Jeremiah Wright is an issue which should be dispositive for anyone with a sense of proportion.

Imagine, if you will, how the Wright issue could have been worse for Obama:

Imagine that, instead of merely making incendiary, and anti-American sermons, Wright went so far as to also build and set bombs, for the purpose of killing government employees. And went to prison for these crimes.

Further imagine that: instead of merely listening to Wright's speeches and closely associating himself with Wright, without actually adopting Wright's harsh language or beliefs; Obama had abused the power of his public office to pardon Wright, freeing him from prison in contradiction to normal procedures under which Wright would never be eligible for pardon, such as Wright's public lack of repentance. And imagine that this pardon was an obvious way for Obama to curry favor with Wright's followers, to get their votes.

Next imagine that there are 14 Wrights, all of them such unrepentant terrorists, and all of them pardoned by Obama, to get more votes in Chicago.

Finally, make the anti-American terrorists Puerto Rican FALN members instead of black Chicago residents, and make Obama the Clintons, and this becomes another issue altogether: this is the true reality of the depth of disgrace to which that couple sunk the Presidency in their pursuit of Hillary's continued power.

(6) Greg made the following comment | Mar 25, 2008 8:57:38 PM | Permalink

You know, when I heard this had happened, my first thought was "he can't stand John 'I hate the 1st Amendment' McCain, and doesn't want him appointing 'justices' of the type likely to approve of McCain Feingold". Which seemed reasonable to me.

As you ahve noted, what he did write, however, is not the least bit impressive. :-(

(7) Michael B made the following comment | Mar 29, 2008 1:47:06 PM | Permalink

The country is in, and in some notable measure has been put in, a mood that is not unlike the mood leading up to Carter's election. People know what they don't want or what they're dissatisfied with and are reaching for any kind of seemingly solid "hope" and "change." Never mind that the post-Watergate and post-Iraq mood are not at all communsurate, but they're in the mood - a mood for change - so barring a concerted and forceful effort by the Republican nominee and his supporters it's not at all unlikely we're in for Jimmy Carter II in the person of Obama. Similar public mood, pre-election; similar overly leveraged campaigns based upon "change" and some vague sense of hope; similar levels of inexperience and lack of gravitas in fully coming to terms with the global geo-strategic situation if you ask me. An analogy only, but an analogy that is all to apt in too many critical respects.

(8) Art Deco made the following comment | Mar 30, 2008 4:38:37 PM | Permalink

similar levels of inexperience and lack of gravitas in fully coming to terms with the global geo-strategic situation if you ask me. An analogy only, but an analogy that is all to apt in too many critical respects.

Must disagree with you. Mr. Carter had acquired administrative experience in his years as Governor of Georgia. He had also been employed as an engineer in the U.S. Navy and then in the family agribusiness. These endeavours have operational measures of competence a good deal more robust than those which attended Mr. Obama's work in teaching, law practice, and extra parliamentary politics. Mr. Carter was also older than Mr. Obama is at this time, and from a generation that reached various milestones of adult responsibility at earlier ages.

On the other hand, the rap on Mr. Carter was that he had no conception of how to deal with our often refractory and inefficient federal legislature, and neither did his liaison to Congress. Max Friedersdorf, who was Congressional Liaison for both Pres. Ford and Pres. Reagan, said he conferred with Mr. Carter's man at the time he was turning the keys over and was stupefied at the man's expectations. Putatively, Tip O'Neill and Walter Mondale counseled him in the early days of his administration on what fights not to pick and on who to lean on and jaw with in order to get specific programs passed and Mr. Carter disregarded their advice. Three years into the job, Edmund Muskie was supposedly the only friend he had made in Congress. It is difficult to imagine B.O. would proceed (or, rather, fail to proceed) in this manner.

(9) Michael B made the following comment | Mar 31, 2008 4:43:47 PM | Permalink

Well, I agree with your criticism. I continue to think the national mood is similar, albeit for decisively different reasons (Watergate doesn't compare with Iraq and this), but I agree was too eager with aspects of the analogy.

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