This just in: George W. Bush is not a lawyer (Nor was George Washington)

[Sanford Levinson]

I have just listened to an NPR story about a prisoner who just received a
pardon from Governor Bush.  DNA showed that he was almost certainly
innocent of the sexual crime for which he was convicted.  What is crucial
is that the Board of Pardons and Paroles recommended the pardon (with the
support, I believe, of the prosecutor in the case), and Bush deferred to
that recommendation.  Astonishingly (and outrageously), the Texas Court of
Criminal Appeals decided a couple of years ago, after the first DNA test
showed that the prisoner (who had been in prison for some years) probably
didn't do it, that the prisoner was not entitled to a new trial because,
after all, he might have been using a condom, which would explain why there
was no evidence connecting him to the rape.  When asked why Bush didn't
issue a pardon then, the Governor's spokesperson said (I am trying to quote
as accurately as possible from my memory of the segment a couple of minutes
ago):  "The governor believes in separation of powers, and he doesn't
second-guess courts.  After all, he's not a lawyer."  It is obviously true
that the Governor is not a lawyer.  (He was not admitted to the University
of Texas Law School!)  But he has scarcely maintained silence about the
judiciary.  Thus, he professes to admire Scalia and Thomas.  I believe that
he has "second-guessed" the Court on Roe, and it is certainly true that he
has endorsed a party platform that continues implicitly to call for the
exclusive appointment of judges who are prepared to overrule that decision.
 But, if we take his spokeswoman seriously, how can he come to any informed
view about what constitutes a defensible approach to legal decisionmaking?
Is this a "gratuitous slap" at the Governor, or does this reveal a genuine
problem with regard to his stance visi-a-vis the judiciary?  Or do we
simply say that one can't take seriously anything a politician says and
that it is, therefore, unfair to subject what they say to serious analysis?

We have, of course, had many non-lawyer presidents, some of them quite good
ones, including George Washington.  He, of course, asked his Cabinet for
their advice re the chartering of the Bank of the United States, and two of
the three, including the Attorney General of the United States, said it was
unconstitutional.  Only the Secretary of the Treasury, Mr. Hamilton,
believed it was constitutional.  Yet Washington signed the bill, presumably
because he agreed with Hamilton.  This seems strongly to suggest, among
other things, that one need not be a lawyer in order to resolve the most
complex constitutional issues, that Washington could indeed come to an
informed conclusion as to the various argument.  If we have no problem with
this, then does this suggest that we might benefit, for example, from
having a non-lawyer on the Supreme Court?  I.e., can experience or
Washingtonian virtue outweight whatever is provided by professional
education?  Or is the justification of the lawyer's monopoly the
non-constitutional part of the docket?

Sandy Levinson