Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk? Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer’s methods to resolve the problem at hand.
I like Bill Faith’s response:
OK, I’m not a lawyer and maybe I just misunderstand the lawyerly thought process, but I think it goes something like this:
A) Identify desired conclusion (e.g. “client is innocent,” “client has money coming”, etc.)
B) Examine appropriate Codes, Case Law, precedents etc.
C) Construct best possible argument to support conclusion identified in step A)
My concern is that a Justice Miers, lacking solid familiarity with the Constitution, might substitute her personal beliefs, based on nothing more than “I feel sorry for these people” or “What would GWB say?” for step A), and then proceed with steps B) and C). I hope I’m wrong, but I’d feel a lot more comfortable with a nominee with firmly established judicial, not lawyerly, habits.
Yup. And as I pointed out this morning, this A-B-C process was exactly the process used by Lewis Powell (to whom Miers has been compared) to decide how to cast his vote in Roe v. Wade.
Was Powell’s method of reasoning directly and exclusively related to his lack of previous judicial experience, and to his previous experience as a practitioner? Not necessarily. But let’s not pretend that lawyers are more likely than anyone else to bring to the bench a philosophy of fealty to constitutional and statutory text.
One’s performance as a judge can at least provide some indication as to that issue, when (as here) there exists significant doubt.