David Limbaugh

Like it or not, the vast majority of lawyers learned little, if any, judicial theory in their constitutional law courses. They learned the case law, without examining whether it was developed through activism, much less whether such activism is proper. Irrespective of what you may think the Constitution says or means, or even what the Framers may have understood it to mean, law professors teach that it means -- by force of law -- what the Supreme Court has said it means over the years. The constitutional law student's bible is not the Constitution; it is the body of cases that have interpreted it.

In those schools whose constitutional law courses include discussions of judicial philosophy, you can safely bet the instructors are proponents of liberal judicial activism and the concept of the Constitution as a "living document." I would bet that most of the professors harbor a contempt for originalism that rivals Karl Marx's disdain for capitalism.

I firmly believe that for any justice to have a significant impact on restoring the Constitution to its originally understood meaning, it won't be enough that he pays lip service to the popular cliche not to "legislate from the bench." Preferably, he will have developed his originalist philosophy over a considerable period of time, during which he will have considered and "unlearned" some of his law school indoctrination.

Those best equipped to undo the damage wrought by years of constitutional misinterpretation will have devoted a large portion of their careers to developing and honing a judicial philosophy that will withstand all pressures, intellectual and political, once they become a part of the Court.

The universe of potential justices who can be safely relied on to have given the subject enough thought to have unlearned the law school dogma is quite small. True, there may be untold numbers of potentially great originalist justices out there. But we have no way of knowing with the "stealth candidates," and there is simply no reason to take the risk when we don't have to.

I am not offering some cleverly disguised argument to mask an elitist preference for Ivy-League-educated judicial scholars. I'm not worried as much about the school; there are plenty of good law schools out there.

But given the crapshoot that choosing judges has proven to be for well-meaning Republican presidents, I just think it would have been far more prudent for President Bush to have chosen among those jurists, practitioners and scholars who have demonstrated their originalist wares in the course of their legal careers. The stakes are too high to gamble on someone with no track record in the things that matter most for such an appointment -- no matter how well President Bush may believe he knows Harriet Miers.


David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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