The decision of conservative, pro-life constitutional scholar Doug Kmiec, a friend of mine, to switch from having co-headed the Romney presidential campaign’s Committee on the Courts and Constitution to announce his support of Barack Obama for president is…well, how to I say it…as if Ed Meese were to quit the Heritage Foundation to accept appointment to the Herbert Marcuse Chair at Berkeley to co-teach “The Dialectics of Liberation” with Angela Davis. No other analogy will fit since I have dealt with authenticist Catholic Kmiec over the years and have depended on his solid, workmanlike analysis of the law as background for some of my own writing.

He is the Caruso Family Chair and Professor of Constitutional Law at Pepperdine University’s School of Law. He served in an extremely sensitive post, director of the Office of Legal Counsel with the rank of assistant U.S. attorney general for Ronald Reagan and George H. W. Bush, a post previously held by Chief Justice William Rehnquist and Justice Antonin Scalia in the Nixon and Ford administrations. His legal credentials are impeccable. An honors graduate at Northwestern University, Kmiec, 57, received his law degree from the University of Southern California wher he served on its Law Review and won the Legion Lex commencement prize for legal writing. He was a White House Fellow, a Distinguished Fulbright Scholar on the Constitution and Visiting Distinguished Scholar at the national constitution center. With leaves for government service, he served on the law faculty of the University of Notre Dame where he directed the Thomas White Center on Law and Government and founded the “Journal of Law, Ethics & Public Policy.”

From Notre Dame he was named Dean of Catholic University of America law school where he wrote the book “The Attorney General’s Lawyer” and three books on the American constitution, a two-volume legal treatise and hundreds of published articles and essays. He and I rotated writing Op Eds for “The Chicago Tribune” until I was terminated for writing an article that speculated how Catholic Richard M. Daley could square the tenets of his faith with his advocacy of abortion and gay rights—but happily Doug kept right on contributing until he moved to an even higher plane. As Dean of Catholic U’s law school he appeared frequently from Washington on “The Jim Lehrer NewsHour” on PBS, “Meet the Press” and national public radio, analyzing constitutional, cultural and political developments.

Following his CUA deanship, Kmiec assumed a really juicy assignment, the chairmanship of the chair in constitutional law at Pepperdine University School of Law. His brilliance shone even more brightly there and he assumed, along with Mary Ann Glendon of Harvard Law School, the role of top advisers on constitutional law questions to Mitt Romney’s presidential
campaign (until Glendon was named ambassador to the Vatican by President Bush).

How in hell a dedicated pro-lifer and astute constitutional theorist moves from that position…key adviser to Mitt Romney…to announced advocate for the election of Barack Obama in a matter of weeks confounds, puzzles, baffles, bewilders, dazes and stuns me—and I mean to ask him deferentially…because my respect for him remains pinnacle-high…how he manages it. In his statement endorsing Obama he says he believes Obama “wants to return the United States to that company of nations committed to human rights.” Well, if so, Obama has certainly hidden it. He personally killed, as Judiciary chair of the Illinois state senate, a bill that would make it illegal to allow babies born live as result of botched abortions to languish and die. The very same bill that Obama opposed and stabbed to death in its crib passed the U. S. Senate almost overwhelmingly with the support of Democrats Hillary Clinton, Ted Kennedy, Joe Biden, Pat Leahy, Diane Feinstein and Barbara Boxer—meaning that Obama stands in stark contrast to them in his disrespect for BORN human life. Of course Obama has been consistent as an opponent of legislation banning partial birth abortion as well as every single pro-life measure submitted to him for vote.

Actually, I’m beginning to wonder if Doug might not have had a stroke that has not been detected. He states in his brief for Obama that he still believes that life begins at conception and adds “Sen. Obama and I may disagree on aspects of these important fundaments…” ASPECTS OF THESE FUNDAMENTALS? Such as allowing life that has been produced from a botched abortion to be cared for? What in the name of God is Doug thinking?

Another part of his brief has to do with his opposition to the war in Iraq i.e. “our president has involved our nation in a military engagement without sufficient justification or a clear objective.” Very well, I accept that reason—but if so, how long has he harbored it since until a few weeks ago he was a key adviser to Mitt Romney who was no different from John McCain in his professed wish to win that war and not withdraw. Was Doug dishonest then? Did he arrive suddenly at this new conclusion only in the last weeks? If so, what in the name of God took him so long? Is this the measure of reflective thought, that he could support a Republican candidate who pressed for victory and then, with the demise of his candidacy, join the campaign of one who is diametrically opposite?

As a mystified but still friend of Doug’s, I cannot help but speculate if a fear of unfulfilled ambition may have something to do with it. He was mentioned prominently in the past as a candidate for federal appeals court judge and even for the Supreme Court—but the White House passed him up because it was thought confirmation by the Senate for someone so prominent a defender of unborn life…far more prominent than John Roberts or Sam Alito…with a huge paper trail would make his confirmation impossible by the Senate. When I last saw him as I was preparing to introduce him at a dinner meeting of Legatus, I mentioned with dismay the news reports. He brushed them away. There is no doubt that if Obama wins and Doug occupies a major role in securing that election by legal stewardship and mollifying of social conservatives, he would be in a good position to be nominated for a very high judicial post.

…Except that in his own words, possibly unintentionally, Doug Kmiec indicates the odds for confirmation might be against him even here. “No doubt some of my friends will see this as a matter of party or intellectual treachery.” Let’s be clear about one thing. The departure of Doug Kmiec is not just another decision of a Republican centrist or malleable legislative draftsman, to go with a party that could serve his interests better. Because Doug is the very highest legal talent and intellectual theoretician the social conservatives have yet found, his defection will be seen by them as akin to that of Benedict Arnold. Arnold, probably one of the greatest American generals of the Revolution…wounded at Saratoga for his country…felt bitterly that he was under-appreciated: and indeed he was. He left his post after plotting to turn the invaluable base of West Point over to the enemy. Washington sent Lafayette and his army to capture him. Lafayette said: And what shall we do with this very high general and ex-friend of yours if we indeed capture him?

Washington’s answer evidenced the bitterness of betrayal. “Shoot him.” We social conservatives stop far short of that—but his conservative friends, his Republican friends, the friends in his church who worked on pro-life measures in which the church believes—moral questions that transcend partisan or political hue—feel grievously betrayed.

As it happened, Lafayette did not capture Arnold. The traitor slipped out of New York harbor on a British warship bound for England. We do not know how he managed to live with himself but we know that he left orders on his British deathbed to have his body laid out in his old American army general’s regalia. That was the closest he came to being re-accepted by America.

If perchance Doug Kmiec has harbored any thought of being nominated for a high judicial post in an Obama administration…a post that requires Senate confirmation…he had better not count on receiving any votes but from the hardest core pro-abortion Democratic members, as his defection’s sting will last beyond the two term limit…meaning that for Doug Kmiec’s interest an eternity.

Once when we talked long ago it was of poetry and what we were reading. I urge Doug to re-read “The Hound of Heaven” by Francis Thompson whose masterpiece portrays one fleeing the advancing chase of him by God, pursuing him back to righteousness after the coward who chose expediency. The pounding of the chase rings in the runner’s ears.

I fled Him down the nights and down the days
I fled Him down the arches of the years
I fled Him down the labyrinthine ways
Of my own mind; and in the mist of tears
I hid from Him and under running laughter.
Up vistaed hopes I sped;
And shot, precipitated.
…
But with unhurrying chase
And unperturbed pace
Deliberate speed, majestic instancy
They beat—and a Voice beat
More instant than the Feet—
“All things betray thee, who betrayest Me.”

_______________________

Thomas F. Roeser is chairman of the editorial board of The Chicago Daily Observer.