The Black Madonna

This entry originally appeared in The Black Republican.

Call him "The Anti-Bork".

According to press reports, St. Thomas More Professor of Law Douglas W. Kmiec is being considered by President Bush for a seat on the U.S. Court of Appeals, D.C. Circuit. I don't know what possessed the man to dare even to suggest such a bold idea, but I find it highly exhilarating. You see, Mr. Kmiec isn't just a strict constructionist, he is unabashedly pro-life and (dare I even say this in public?) he understands the concept of natural law. Worst of all, Mr. Kmiec is one of those disgusting papists. But there is more! Mr. Kmiec has a paper trail, and he's got the gall to wave it in the face of the Left and shout them down.

Writing in the Wall Street Journal (probably the only newspaper daring enough to accept his column) Kmiec responds to his critics:

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.

Thanks to his catholicity, Kmiec presents a problem for the Democrats, especially now that he's defended himself. If he is nominated and they reject him, it may well prove his Religious Test argument. (A side bonus is this would further alienate Catholics from the Democratic Party.) It makes me wonder if Kmiec could them sue the government on the grounds that they are violating Article VI. This entire set-up may be just what's needed to break the Bork cycle we're in and return us to the days when a man's judicial temperment is the issue, and not his religion or ideology.