Kmiec's epic fail in Time magazine

When I found out Doug Kmiec had shot out an article for Time magazine in the wake of Pelosi's meeting with Pope Benedict, I geared myself up for yet another point-by-point critique of his flawed arguments.

This time, however, I don't even need to take the trouble, because the entire premise of Kmiec's latest piece is factually in error. To see why, first I will summarize Kmiec's argument.

Kmiec says:

"If you read [the pope's statement to pelosi] carefully, the statement is actually quite radical — perhaps unintentionally so. The brief message — just two short paragraphs — draws no distinction between the moral duties of Catholic policymakers and Catholic judges to work against abortion.

As a lifelong Catholic, Pelosi could not feign surprise at being called upon by the Church to use her gift for persuasion to restrict abortion legislatively, or at least not to be its advocate. But until now, the Church had not formally instructed judges in a similar fashion. As written, the Pope's 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."

Kmiec spends the rest of his time flushing out the implications of Pope Benedict's supposed admonition to "jurists" telling them to, in Kmiec's words "undertake an activist, law-changing role."

Out of this mistaken interpretation, Kmiec tries to create a lose-lose scenario where jurists are stuck between the rock of Peter and the hard place of their judicial oath.

Kmiec next handily provides a solution to his self-created dilemma, saying the Vatican should renege its statement and re-introduce the distinction between jurists and legislators.

.... now comes the reality check: the Vatican statement does include the necessary distinction in terminology.

From an AmP source with extensive experience in Italian legal matters:

"... giuristia is not the word an Italian author would use when referring to a judge. He would use giudice. A giurista is someone who attends to he law as a matter of profession, most frequently a lawyer, or a professor of law. But a giudice is a magistrate who evaluates the merits of an argument in a case or controversy.

In American law, distinctions between words carry great significance; and in Vatican press releases, the spokesmen for the Holy See select their words very carefully. In this instance, the press office elected to use the more vague term giuristi rather than the specific term giudici. However, Kmiec misses this critical distinction."

Kmiec's "missing" of this critical distinction creates his entire argument. Consequently, once it is made clear that the Vatican did use its words right, Kmiec is left out in the cold, actually saying nothing.

Re-reading Kmiec's piece then becomes comical once you realize his premise is false: the statement is not, in fact, "quite radical - perhaps intentionally so" ... it is actually quite logical -intentionally so. The statement is not a "sharp break with the past." The Church's teaching is aware that the responsibility to defend life ought to be "applied in light of the scope of office."

Proceeding in the same vein, someone in the Vatican office did not "in the rush of the event [...] mistakenly included the judicial terminology" ... it was Kmiec who, in the rush of trying to publish in Time, didn't bother to double-check his Italian-language comprehension skills.

(.. and this is the man who hopes to become the U.S. ambassador to the Holy See?!)

So, if Kmiec hasn't actually illumined a "surprising" and "overlooked" aspect of this recent statement, what can we learn from his writing?

I'd offer this observation: Kmiec is predisposed to seeing difficulty and crisis whenever one attempts to bring one's Catholic faith into politics. Because of this pessimism, his initial reaction to the Holy See's communique was not to check his translation or try to understand what the Holy See was saying, but instead to criticize it and call on them to change.

In reality, however, the Church's admonition to public servants is reasonable, is informed, and is livable.

You just have to give it a chance - and yes, even pull out your English-Italian dictionary once in awhile.