If you need me this morning, I’ll be out on the window ledge. Because it is becoming clearer and clearer that we are headed towards the confirmation of a Supreme Court justice who has no idea what the Constitution says.
The Washington Post buries the lede in this story about Harriet Miers. At paragraph 18 of the article, we see this:
[S]everal constitutional law scholars said they were surprised and puzzled by Miers’s response to the committee’s request for information on cases she has handled dealing with constitutional issues. In describing one matter on the Dallas City Council, Miers referred to “the proportional representation requirement of the Equal Protection Clause” as it relates to the Voting Rights Act.
“There is no proportional representation requirement in the Equal Protection Clause,” said Cass R. Sunstein, a constitutional law professor at the University of Chicago. He and several other scholars said it appeared that Miers was confusing proportional representation — which typically deals with ethnic groups having members on elected bodies — with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations.
Michelle Malkin notes the specific portion of Miers’s questionnaire regarding this issue (an answer to question 17 at page 49), which says:
While I was an at-large member of the Dallas City Council, I dealt with issues that involved constitutional questions. For instance, when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause.
It sure sounds like she is saying that the Equal Protection Clause requires that members of protected classes be represented on legislative bodies in numbers corresponding to their proportion in the general population. If that is indeed what she is saying, it is just stunningly wrong.
If you have a plausible alternate explanation of her comment in the context of Section 2, please let me know. But please: whisper when you do it. That window ledge is mighty narrow, and you don’t want to startle me.
I should note that two readers (A.W. and TNugent — not the rock star/radio personality) have attempted to coax me off the ledge with explanations of Miers’s statement. I don’t pretend to speak for them, and you should read their comments in their entirety — but if I understand them correctly, they are saying that Miers may have the basic idea right, but may simply be using the wrong terminology.
Since I have reviewed very little documentation relating to the Dallas City Council case, I don’t know whether A.W. and TNugent are right. However, I note that getting the terminology (what A.W. calls “code words”) correct is important for Supreme Court Justices who are, after all, supposed to make the law clear for the rest of us.
One of two things is true. Miers either 1) expressed herself unclearly, in a way that fooled several legal scholars, or 2) believes that the Equal Protection Clause mandates proportional racial representation. Option #1 is not as bad as #2 — but it’s not great, either.
In any event, this is not the only thing that has put me out here on the ledge. Even if this is explained to everyone’s satisfaction, I still have dozens of other deep concerns about this nomination. I detail these in my Judiciary category; just click here and keep scrolling.
I’m not coming in. And don’t get too close to me!
UPDATE x2: Thanks to Jonathan Adler at Bench Memos and John Hinderaker at Power Line for the links. John appears to agree with A.W. and TNugent that Miers was making an inartful reference to the “one man, one vote” rule. Interestingly, he says that “Cass Sunstein is, for once, right” — and hyperlinks those quoted words to the article cited above, in which Sunstein says that Miers is confusing the concepts of proportional representation and “one man, one vote.” I don’t understand why commenters and pundits don’t find it troubling that Miers is confusing several legal scholars with her terminology.
UPDATE x3: Cass Sunstein was not the only legal scholar fooled by Miers’s imprecise terminology — by far. More details here.
UPDATE x4: The Supreme Court of the United States also disagrees with Miers.