From the WSJ Opinion Archives
BENCH PRESS
Judge Me by My Work
Some liberals want to impose a religious test on federal judges.
WASHINGTON--Last week the New York Times reported that President Bush was considering nominating me to the U.S. Court of Appeals for the District of Columbia Circuit. While many friends from my days in the Justice Department, former students now practicing at law firms across the country, and sitting judges wrote or called to encourage this development, a stark, inside-the-Beltway question emerged from the report: Can an avowedly pro-life Catholic actually serve on such court?
The Times noted fairly that over my 25 years teaching law, I have "written about the need for judges to interpret the Constitution with an eye to what . . . scholars call 'natural law.' " Properly, the report traced this conviction not to a particular religious belief but to the country's fundamental incorporation document--the Declaration of Independence.
It was my assumption that the average, well-informed citizen would find all this to be rather more basic than controversial, but this is not the way of activists with fax machines in Washington. By the afternoon, the speculation of my nomination produced an overly heated press release from an organization that styles itself the Alliance for Justice--a group that generally opposes Bush nominees, but apparently has a special dislike for those who are pro-life.
The president of Alliance for Justice, Nan Aron, commented: "Kmiec's record reflects a . . . philosophy opposing a woman's right to choose," noting that I testified some years ago before Congress that "abortion is more than the killing, it is also the coarsening of the American heart. . . . Abortion undermines all life." Ms. Aron and her organization also expressed dislike for other aspects of my scholarship, such as my urging of just compensation for property owners confronted with excessive regulation, or my inquiring into whether various federal enactments were consistent with the powers granted to Congress.
These are my writings. Put in their full context, I stand by them. As reporter James Meeks for the Los Angeles Daily Journal noted, "a closer look at that testimony shows that, while he clearly is anti-abortion, the former Notre Dame law professor demonstrated in his testimony a broader view of abortion's impact on society. In fact, Kmiec stated then: '. . . Abortion invites male irresponsibility and skyrocketing rates of illegitimacy that plague every part of this nation; . . . abortion insinuates the cold formality and language of 'rights' into places, like the relations between husband and wife and parent and child, where only duty and fidelity can sustain marriages, form homes and build communities.' "
Does someone with this strong embrace of life and family warrant a presidential nomination to the federal bench? That is hardly for me to say, and I am not campaigning for appointment. I like teaching far too much for that, and I fully recognize that judicial service would preclude other counsel that I may now freely share with government leaders in these times of national emergency. I will point out, however, that as Ms. Aron and her counterparts frame the question, it is irrelevant. Transparent moral beliefs and a gratitude for the gift of life may be measures of the quality of a person; they are not, however, the most appropriate or direct yardstick for sizing up a potential federal appellate judge.
Why not an appropriate yardstick? Because disqualifying a person from a federal post on the basis of his religious or moral beliefs cuts deeply against the guarantee of religious freedom secured in the First Amendment; it might even contravene the Article VI admonition that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." And why not a direct yardstick? Because the job of a federal appellate judge is far more straightforward than these intractable issues--issues that, in the end, must be resolved as best we can within our many communities, informed less by top-down government edict than by bottom-up moral, religious and family belief.
By contrast, a federal appellate judge must understand the law as written by the legislature. He must have a good grasp of the facts as determined at trial, listen and consider fairly the opposing positions presented by the litigants, and write an opinion that follows the precedents established by the Supreme Court and the decisions of his circuit. A member of the federal judiciary is not to sit as philosopher-king, telling the elected branches--either the Congress or the president--which of the thousands of policy alternatives it must choose. Nor is the task of an appellate judge to find, in the text of the Constitution, rights that are inconsistent with the first principles of our nation, which, as recorded in the Declaration, are self-evident.
"All men are created equal . . . endowed by their Creator with certain unalienable Rights, that among these are life, liberty, and the pursuit of happiness." Governments, Jefferson reminded us, derive power from the consent of the people, and are fashioned to preserve those rights. All judges are bound by these postulates. Each in his respective operations must never be unmindful of them, lest he invite "government to be destructive of these ends." By founding design, a federal appellate judge is more likely to be faithful in this duty if he fully comprehends our Constitution, which is carefully etched with provisions that create overlapping checks and balances at the federal level and a federal-state division of authority.
So then, can a pro-life Catholic serve as an appellate judge? Of course. As much as someone without those beliefs could, if both accepted the constitutional structure, possessed sufficient legal study, and demonstrated personal traits that ensure the evenhanded application of the law. Some say the D.C. Circuit is the second most significant federal bench in the land. By location and docket it may be. Yet for those whose lives, liberties or economic fortunes are in jeopardy, any court hearing one's case has that importance, for it is there that some hope of justice remains.
Mr. Kmiec is dean and St. Thomas More Professor of Law at the Catholic University of America School of Law. He was an assistant attorney general in the Office of Legal Counsel in the Reagan and first Bush administrations.
