(sent to conlaw prof)
... Bobby, I can't agree with any of this.
The basic difference in the dynamic of judging versus legislating is that one deploys casuistry; the other group-placating. Tip O'Neal was an exemplar at being a politician, not a judge. Holmes and John Marshall (and Solomon and Hercules) are exemplars at judging, not politicians. George Washington, Lincoln and Roosevelt were exemplars at being executives. None of these individuals either within their own group or compared across groups deployed the same "decision methodology." In legislative circles, they debate about whether to be a "delegate, politico or trustee." They debate in executive circles how best to manage. You could invert your question and say: since all legislators do not deploy the same method or style, shouldn't they all be judges? Even capitalism has different philosophies of how to play. You don't even have uniform methods for running companies. Let me ask you as a professor -- is pedagogy uniform? Seems to me the first
question out the door is "what is your teaching philosophy?" Don't parents have philosophies for raising kids? Why on earth would judging not also develop competing paradigmatic views as to how to make the best of it?
Judges are only required to make the best sense of the law they can to the best of their ability. Legislators are required to group-placate to a point of maximal efficiency. Each requires a different set of skills and "methods," but there is none within each domain that is uniform.
We worry about the methods of judging the same that we worry of the quality of art in a painting. I would argue, precisely, that is what the worry consists of. Also, I don't see "ideology" as a "method of decision" for a legislator. Both judges and legislators are "capitalist," but do something different with their brains when they group-placate versus deploy casuistry. Better to say that one who judges or legislates according to beliefs about capitalism is an "idealist" or "dogmatist" in method -- which, if it appeared in legislative or judicial institutions, would manifest itself differently, given the differences in the cultural practices of judging/legislating.
Dr. Sean Wilson, Esq.
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860