Saturday, October 22, 2005

"Are they trying to set her up?"

On the front page of the LA Times (registration required, I recommend using bugmenot.com):
Miers' Answer Raises Questions

WASHINGTON — Asked to describe the constitutional issues she had worked on during her legal career, Supreme Court nominee Harriet E. Miers had relatively little to say on the questionnaire she sent to the Senate this week.

And what she did say left many constitutional experts shaking their heads.

At one point, Miers described her service on the Dallas City Council in 1989. When the city was sued on allegations that it violated the Voting Rights Act, she said, "the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause."

But the Supreme Court repeatedly has said the Constitution's guarantee of "equal protection of the laws" does not mean that city councils or state legislatures must have the same proportion of blacks, Latinos and Asians as the voting population.

"That's a terrible answer. There is no proportional representation requirement under the equal protection clause," said New York University law professor Burt Neuborne, a voting rights expert. "If a first-year law student wrote that and submitted it in class, I would send it back and say it was unacceptable."

Stanford law professor Pamela Karlan, also an expert on voting rights, said she was surprised the White House did not check Miers' questionnaire before sending it to the Senate.

"Are they trying to set her up? Any halfway competent junior lawyer could have checked the questionnaire and said it cannot go out like that. I find it shocking," she said.

White House officials say the term "proportional representation" is "amenable to different meanings." They say Miers was referring to the requirement that election districts have roughly the same number of voters.

In the 1960s, the Supreme Court adopted the "one person, one vote" concept as a rule under the equal protection clause. Previously, rural districts with few voters often had the same clout in legislatures as heavily populated urban districts. Afterward, their clout was equal to the number of voters they represented. But voting rights experts do not describe this rule as "proportional representation," which has a specific, different meaning.

"Either Miers misunderstood what the equal protection clause requires, or she was using loose language to say something about compliance with the one-person, one-vote rule," said Richard L. Hasen, a professor at Loyola Law School in Los Angeles who specializes in election law. "Either way, it is very sloppy and unnecessary. Someone should have caught that." ...
If that is any indication of Miers' understanding of the Constitution and its amendments, she properly belongs in Congress. After all, Congress incorrectly invokes the Necessary and Proper and Interstate Commerce clauses to justify the federal government's sweeping powers to tax, spend and trump state laws.

At worst, President Bush nominated someone who doesn't know constitutional law. At best, he nominated someone whose legal ability is too imprecise to warrant trusting her as a judge on our highest court. Charles Krauthammer has a brilliant suggestion on how Miers can withdraw while she and the White House still save face. Sounds good to me, and may history books be kind.

Update: I sent the link to Professor Bainbridge, asking if he had any comment. Yes, he does here.

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