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Another reason to be concernedI'm reposting this from Volokh, where I posted it as a reply. Why this strong presumption? Consider her mindset and experience. She has spent virtually her entire career as a lawyer, and a lawyer that can afford to eat is a lawyer who is results-oriented; they are paid to present a compelling case for a given outcome, not to determine whether their client is right or wrong according to the specifics of the law. There's nothing wrong with the point of view if you're a litigator, and everything wrong with it if you're a jurist. But Miers stands to become the latter, despite a career in which her primary view of the law is precisely what originalism, being process-oriented, stands in opposition to. This would be less of a concern, of course, if Miers had a strong, clearly articulated judicial philosophy, or a record of having thought deeply about the constitution, its meaning and interpretation. But she does not; virtually every single Volokh co-conspirator has written more in the public record about the Constitution in the last ten days than Harriet Miers seems to have written in the public record in the last ten years. This being the case, I think there is a very strong presumption that she will reach the court, and draw on every ounce of her much-vaunted "real world" experience. She will determine the (probably conservative, this decade) result that she wants and support it with such materials as are available. In this regard, she will be no different to Justice Ginsburg, Kennedy or Breyer choosing their preferred result and selectively citing precedent - foreign or domestic, as available - to support it. And I don't believe in putting just another flavor of dead wrong on the court. |
    
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