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Miers flunks out first semester


Reading a story in the Washington Post about the continuing nomination battles of Harriet Miers, I was puzzled to learn that in her response to some questions by the Senate Judiciary Committee, she referred to the “proportional representation requirement” of the Fourteenth Amendment’s Equal Protection Clause.


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.

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