Professor Douglas Kmiec, the scholar who provided a justification for allowing Catholics to vote for Barack Obama, despite the president's consistent pro-abortion track record, wrote last week on Time Magazine's website that Pope Benedict XVI's words to Nancy Pelosi were "intrusive" in legal matters, because they put the whole judicial system in an impossible moral dilemma.
In his piece Prof. Kmiec implied that the Pope exaggerated or at least did not measure the consequences of his words when he told Nancy Pelosi that "jurists," in addition to legislators, must work "in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development."
According to Kmiec, such a statement “has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists, and perhaps all other Catholics who sit on the bench in the lower federal and state courts.”
The Pepperdine professor suggests the Pope, instead, could take "a different, less intrusive course," by "continuing to observe the difference between a jurist and a legislator."
"Few are pleased with the abortion jurisprudence as it is," argues Kmiec, but by "imposing moral duties on Catholic jurists that are incompatible with their envisioned judicial role in a democracy," Pope Benedict XVI "is hardly likely to make it better."
Edward Whelan, President of the Ethics and Public Policy Center and director of its program on The Constitution, the Courts, and the Culture, questioned "whether Kmiec’s reading (of the Vatican statement) is actually a careful one."
"For starters, Kmiec assumes that the term 'jurists' is equivalent to 'judges'," Whelan explains, when actually the terms applies to "any person who possesses a degree in law."
The EPPC expert explains that "even if the statement does apply to American judges, all it says is that 'jurists' should 'work in co-operation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.' Kmiec turns this into an “admonition to ‘jurists’ to undertake an activist, law-changing role. But the statement doesn’t compel that reading."
"If one understands the judicial interpretation of laws to be part of the creation of a system of laws, then the statement would permit American judges to play their proper role (which includes not inventing constitutional 'rights' to abortion," Whelan ads.
Finally, Whelan sees no reason to turn the Vatican statement into an occasion to criticize the Pope for being "intrusive." "The Press Office statement is only that —a Press Office statement, one occasioned by Nancy Pelosi’s visit and undoubtedly carefully reviewed for that purpose, but no more than that," he concludes.