The Supreme Court and Constitutional Theory:
Ann Althouse offers some thoughts on the Miers nomination:
[Miers'] lack of interest in theory has bothered a lot of lawprofs, including me. Conlawprofs are biased in favor of theory. If you are going to devote your life to the subject of constitutional law, as an academic subject, you are probably the sort of person who is attracted to abstractions, theories, and larger patterns and aspirations. . . .This brings up two interesting questions: First, how many of the sitting Justices are constitutional theorists? And second, how do we know that Harriett Miers lacks an interest in theory? On the latter question, it seems to me that we don't really know enough to say.
Thinking about it that way has begun to thaw my opposition to Miers. 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. What is wrong with having that style of analysis in the mix? We need a safeguard against the excessively theoretical.