| Was it possible, I wondered,
that my Constitutional Law professor at Yale had been
so derelict as to leave out such a concept? True,
our overview had been necessarily a brisk study of
a subject of law that could easily occupy a semester’s
worth of classes on its own, but a “proportional
representation requirement” sounded rather important,
and yet entirely unfamiliar to me.
Luckily, the next paragraph cleared it up: Cass Sunstein,
noted constitutional law scholar and professor at
the University of Chicago, spelled out: “There
is no proportional representation requirement in the
Equal Protection Clause.”
It is that spirit of farce—the unbelievable
moment of, “Oh, no, she really did turn in written
answers to the Senate supporting her nomination to
the highest court in the land with content that would
flunk me out of my first-semester constitutional law
class”—that seems to have driven all discussion
of Miers this last week. (Yale Law School bucks the
national trend by having students take Constitutional
Law in their first semester.)
I’m still not entirely sure of exactly how
significant an error Miers made. Her defenders were
quick to explain that she was confusing the “one
man, one vote” concept laid down by the Supreme
Court in a 1964 case called Reynolds v. Sims,
that dealt strictly with the often egregious discrepancy
in numbers of individual voters in legislative districts,
with the concept of proportional representation, or
the idea that representation on a given legislative
body should reflect the demographic makeup (gender,
race, and so on) of the population it represents.
The defense of Miers argues that she simply used the
term ‘proportional representation requirement’
to refer to the ‘one man, one vote’ concept—sloppy
language to be sure, but not necessarily indicative
of a glaring gap in constitutional understanding.
There are two problems with this explanation. One
is that Miers alluded to the phantom “proportional
representation requirement’ in reference to
a case brought against the city of Dallas alleging
that the election structure of the city violated the
rights of minorities. In other words, she used the
phrase “proportional representation” in
reference to a case that dealt with the concept of
vote dilution, making it rather difficult to argue
that she was carelessly using a generic term in reference
to a legal concept. Second, and more problematically,
“proportional representation” is recognized
as having a precise meaning in legal scholarship.
It would be entirely understandable if the average
layman used the term “proportional representation”
to refer to the “one person, one vote”
principle. It would also be understandable if the
average person on the street referred to a harpsichord
as a piano. They’re roughly similar, and there’s
no reason why someone unfamiliar with keyboard instruments
would know the correct name for the correct item.
But anyone who has a rudimentary knowledge of the
topic can explain the difference—which is why
it’s so shocking that a woman nominated to be
one of nine voices determining the fundamental understanding
of the basis of our nation’s legal structure
made such a flagrant mistake.
The slip in Miers’s responses to the Senate
was not, of course, the only question raised this
past week. Many of the raised eyebrows came from the
Senate itself: the bipartisan leadership of the Senate
Judiciary Committee explained in a news conference
that Miers’s response to their questions, as
a whole, was entirely inadequate. The senior Democratic
member of the committee, Senator Patrick Leahy, said
that “the comments I have heard range from incomplete
to insulting.” Further legislative hostility
was aroused after an individual meeting held between
Miers and Republican Chairman Arlen Specter. After
the meeting, what each person said about the content
of their discussion, particularly what Miers told
Specter about her opinion regarding the line of cases
that set the stage for Roe v. Wade, differed
dramatically. Specter, obviously angry about the snafu,
said that in his dealings with eleven nominees to
the Supreme Court during his legislative career, he
had never previously “walked out of a room and
had a disagreement as to what was said.”
And that is even outside of the more shocking questions
being raised about Miers. Twice in her career—once
in Texas, once in D.C.—her license to practice
law was suspended because she didn’t pay her
dues to the bar association. And five years ago, Miers
was granted more than ten times the market value for
a small piece of family-owned land that the government
wanted to build a freeway off-ramp. Texas law says
that in determining the value of such properties,
a judge should appoint three “disinterested”
officials to assess the property. In this case, the
judge appointing those three officials just happened
to be one who had received thousands of dollars in
political donations from the law firm at which Miers
worked. And he just happened to appoint Peggy Lundy
as one of the three officials—the same Peggy
Lundy listed as one of Miers’s “personal
friends” by the conservative group “Progress
for America;” the same Peggy Lundy who describes
the many times in the 1990s that she sought Miers
out for advice.
It is telling of the level to which politics in this
country has sunk that Miers could be nominated. It
is not enough that she has never served as a judge
at any level; the President actually nominated a woman
whose license to practice law has been suspended twice
and who explained her exposure to constitutional issues
with a mistake that would be enough to flunk a first-semester
law student. It is more telling that the White House,
which presumably reviewed the answers she submitted
to the Senate Judiciary Committee, either felt so
secure in the nomination of a woman whose chief qualification
is political loyalty or has such little respect for
the Constitution that those in charge of vetting her
answers didn’t even notice the mistake themselves.
Visit Dara Purvis @ www.DaraPurvis.com.
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