Patterico's Pontifications

10/20/2005

Out on the Ledge

Filed under: Judiciary — Patterico @ 6:52 am



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.

UPDATE: Thanks to Instapundit readers, and thanks to Prof. Reynolds for the (unexpected) link. The main page is here for anyone who wishes to bookmark the site.

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.

102 Responses to “Out on the Ledge”

  1. Gee, now all she needs is a pre-frontal lobotomy and Hewitt will laud her as the next Scalia.

    Ernest Brown (645009)

  2. Well, she just won Lani Guinier’s support! :

    Ernest Brown (645009)

  3. That’s it, that’s the last damn straw. I was on the Miers support bandwagon until about yesterday when it started to become clear that she apparently doesn’t have any idea what she’s talking about, now this too? PROPORTIONAL REPRESENTATION as a Constitutional requirement? That’s pretty much what the Equal Protection Clause expressly prohibits– discrimination based on race, for whatever reason. Ugh– any Senator who would vote in confirmation of Miers, Republican or Democrat, should have all support withdraw from them in their next election campaign. Voting for this disaster of a nominee would be a clear sign of utter incompetence and frank disrespect for the US Constitution.

    FWIW, now folks are talking about Bush’s other two considerations as far as female nominees for SCOTUS in this position, and they’re not JRB or Priscilla Owen. No, they’re Maureen Mahoney and Consuelo Callahan. Are you kidding? These two would both be almost as bad as Harriet Miers. They’re both in favor of affirmative action based on race and gender, and in favor of lame “penumbra” type arguments on other issues too. As other posters have been pointing out, it would be OK to argue for affirmative action based on *economic class* or the like, opting to devote more state education funds to certain districts– but it’s not Constitutional to establish preferences based on race. It has to be colorbling. The practical effect of such preferences probably would be to help poor minorities, but the focus has to be on helping the poor, not helping those who are black or Hispanic per se (which screws over poor blacks and Hispanics as well as poor whites).

    If the Miers nomination fails, Bush had better steer clear of both Mahoney and Callahan, or else he’s heading for yet another disaster. Janice Rogers Brown would be a brilliant choice, as would Owen– as would McConnell, as would Luttig. Bush needs to get it into his head that he needs to pick someone who’s qualified and actually understands the Constitution as it’s put together.

    ProudScot (4fd023)

  4. Got room for two on that ledge? At this point, the best pro-Miers argument is that there are a lot of things we don’t know about her and some of them could be good. A week ago, I agreed with that. By today, we’re running out of places to look.

    BTW, I emailed Hewitt a week ago when he was looking for lawyers in private practice (deliberately excluding you?) blogging against Miers, and sent him a list of links showing my mounting concerns with the nomination. We’ll see if he finally acknowledges my existence when he returns from vacation.

    Crank (3fed2a)

  5. Well, why would she be any different that the twits already on the Court? Look at the Kelo decision…

    We don’t need any more legal twits on the Court. Dump her immediately.

    Brewingfrog (c568a0)

  6. Don’t jump yet. Last night I watched Specter and Leahy on the NewsHour and they were none too pleased with Ms. Miers. I wrote about their concerns here.

    Here is my prediction. The confirmation hearing starts poorly and then goes down hill from there. After the embarrassment levels have risen sufficiently, the nomination will be pulled. Today, only the beltway crowd, politicos, and bloggers who care are demanding her nomination be withdrawn. Once the entire country realizes that she is in way over her head, then whatever support is out there for her nomination will disappear.

    She will not be confirmed.

    Of course, I would appreciate it greatly if you would save me a spot on the ledge just in case I’m wrong.

    Dogwood (63c9e3)

  7. Plenty of Judges make up the law as they go. Especially SCOTUS since no one can contradict them in a civilized manner.

    George W is doing everyone a favor. He is highlighting the system. No one was outraged over LBJ or FDR or even Bill Clinton’s poor choices. It’s good for Judges to find out how little they are regarded.

    We could use some prayers that Judges, Lawers, and Politicians will be given a lesson in humility by God Almighty. Especially if said lesson makes us all happier.

    Huggy (d66f3b)

  8. Not being familiar with the details of the process, do you know if it is required that the nominee be sequestered while completing the form and then must seal it in an envelope so no one in the Executive Branch, et al, knows the responses until it’s opened by Committee members?

    Dusty (481a70)

  9. I raised the proportional representation thing early on, but this seems to confirm it.

    I want to hear Hugh or Beldar on this.

    Jeff G (302dff)

  10. Um…I know second terms are not historically as strong as first terms but is anybody at home in this White House? It’s bad enough that they chose this woman (did you know that she’s a she? A trailblazing she at that!) but didn’t anybody proof read this stuff?

    When the questionnaire was released it was obvious that writing was not Ms. Miers’ strong suit (read her answer about judicial activism, it’s like a high school essay) but now this? This is just flat out wrong. It’s about as wrong as you can be on something. Didn’t anyone notice? Part of me likes to think she wrote it and some staffer saw it, laughed (and then cried) and left it in to embarrass her.

    I am not a lawyer but I think I may know more about Constitutional Law from my undergrad classes 15 years ago than this woman (sorry, this trailblazing woman) does.

    I don’t know what’s more frightening…that she hasn’t actually, you know, read the Constitution lately or that she has and just doesn’t understand it.

    Any room left on that ledge?

    Drew (b360b8)

  11. To be fair, someone who hasn’t worked in Constitutional Law for a long time is going to forget all that stuff.

    But shouldn’t we be selecting someone who is currently an expert in the subject area instead of a state lottery administrator and the President’s personal lawyer?

    Half Sigma (7b3fba)

  12. Look on the bright side. Her role of vetting Supreme Court justice nominees is over, regardless of whether she is confirmed.

    Shredstar (532850)

  13. “Voting for this disaster of a nominee would be a clear sign of utter incompetence and frank disrespect for the US Constitution.”

    What a revolting development. She can’t even answer basic written questions properly. I thought that even a Constitutional ignoramus could humiliate the idiots on the JC, but she transcended my already bottomed-out expectations of her lackwittedness.

    Ernest Brown (645009)

  14. ElectionlawBlog has a good discussion of this:

    http://electionlawblog.org/archives/004260.html

    Basically, from reading the comments, it seems like she could just be using a bit of short hand. The Constitution does prohibit vote dilution, which was definitely going on in Dallas: the system was specifically setup to disenfranchise minorities.

    But the issue is a bit muddled here: “Instead, the Supreme Court seems to use proportional representation as a benchmark without saying that it is doing so.”

    Pierce Wetter (0f757b)

  15. Best. Appointment. Ever.

    actus (ebc508)

  16. Con law isn’t hard. Especially if you’re not concerned about being correct.

    Christopher Cross (ee574f)

  17. Here’s a thought: someone just make her take a con law exam that all first-year law students take. My guess is she does worse than at least half the first-year students from a third-tier law school.

    Mark (e364c8)

  18. […] Because Harriet Miers has him about to jump: […]

    Balloon Juice (c62e7c)

  19. […] That’s what it feels like, watching the most recent iteration of the SCOTUS nomination. Patterico is nearly suicidal: 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… 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. […]

    Neptunus Lex » Slow motion train wreck (f67377)

  20. Sunstein (the one quoted, who actually knows a little bit about Con law) spoke at my school yesterday. He gave an interesting talk about judicial minimalism (see here, for example). While I don’t necessarily agree with him (I figure prudence dictates waiting at least until finishing the entire semester of Con law before declaring allegiance to any particular grand legal theory), his arguments about judicial restraint in practice convinced me to take the absurd step of buying a book about law that hasn’t been assigned.

    I like that the most enthusiastic comment in favor of Miers on this thread (#7) is essentially “George Bush made a brilliant decision by selecting a candidate so incredibly awful no one can pretend otherwise, showing how other presidents chose less awful justices.” Maybe that’ll be Hewitt’s next tack.

    matty (187c5d)

  21. I don’t agree at all about this. To my reading, she seems to regard the issue of the Voting Rights Act (VRA) and proportional rights to be two different issues. She seems to be saying, more or less, that as they addressed the concerns raised by the VRA, she had to make sure they didn’t violate the constituiton, either.

    And to me, I don’t see any reason to think she is talking about racial gerrymandering or any similar issue when talking about proportional representation. It does reveal that she apparently is not inundated with the code words that they teach us for these concepts in law reviews, and in Ivy League law schools. But contrary to what Sustein says, the one-person-one-vote principle is PRECISELY a requirement of proportional representation. The fact that the Lani Guinier crowd uses it as a code term for racial proportionality doesn’t mean Miers is talking about that.

    Mind you, I am not a blind Miers defender. I am more “wait and see” but at the moment I don’t support this nomination. I want the best for this Court, and I am not even close to being convinced she is the best. And I would favor them asking her to decipher this comment if only to quiet your concerns. But I think you’re wrong here. She has not made a clear error, contrary to what you say, except maybe in failing to use the accepted code words.

    [P.S.: Ditch the live preview of comments. It slows down the actual writing process.]

    A.W. of Freespeech.com (019011)

  22. A.W.:

    I said what it *sounds* like, and invited people to suggest alternate explanations. I really, really hope yours is right.

    Patterico (421e3b)

  23. Take a deep breath, everyone. The “proportional representation” remark might not have been so far out there in substance. Maybe she’s just been hanging around W so long, that she’s picked up Bushisms and now uses them in everyday speech. We might just be misunderestimating her constitutional knowledge because she don’t always talk right, at least where the Constitution is concerned.

    If I recall correctly, there was at least one case decided in the early ’60s (recall from Con Law, not reading about it in the newspaper — Con Law was a long time ago, but not quite that long) requiring state legislative districts to be drawn so as to provide for representation in both houses of bicameral state legislatures to be apportioned according to population, so each citizen’s vote weighs approximately the same as every other citizens vote. I’m not sure if the case was before or after the Voting Rights Act, but I think it was before, or at least it was decided on constitutional (equal protection, that is), not statutory grounds.

    Jumping too early on something like this leaves an opening for the “just trust the President” crowd to portray Miers’ critics as a bunch of hair-splitting ConLaw nerds who put more importance on how Miers says something than on the substance of what she says. We saw how well that approach worked for the Dems in 2000 and 2004. I’m not saying that’s correct, nor am I suggesting that we shouldn’t expect a S.Ct. nominee to have knowledge of the Constitution and constitutional issues sufficient so that she uses the right words to describe them, but that’ll be the spin, and it won’t help us get someone on the Court who’s really qualified.

    TNugent (58efde)

  24. Easy solution: She should let Scalia and Thomas write her opinions.

    Attila (Pillage Idiot) (dfa1f1)

  25. Hey, ‘rico, when you take that deep breath, make sure you do it carefully.

    TNugent (58efde)

  26. Maybe she’s just been hanging around W so long, that she’s picked up Bushisms and now uses them in everyday speech.

    If there’s one area that does NOT need a “down home plain talkin’ country-fied hoss who just up and done gone get hisself a good jubbice” it’s Supreme Court opinions.

    Consdering that the difference b/w Privileges AND Immunities clause vs the Privileges OR Immunities clause matters, to be so apparently lazy with language (even if it could be salvaged through some creative interpretation) is not encouraging.

    Moreover, considering that this was Harriet’s first real “roll-out” and chance to shine/silence the critics, that this is what was produced doesn’t engender much confidence.

    Christopher Cross (ee574f)

  27. Wasn’t Miers a Democrat at the time?

    If so might that be an indication of her intended meaning?

    M. Simon (d8d91d)

  28. Clearly, her mistake on the Equal Protection Clause was ridiculous and revealed that she has much to learn in constitutional law. More important, however, it revealed that she is not careful and evidently had no understanding of the issue. One would think that, if Ms. Miers were a good lawyer, she would have researched her answer to the issue and would have therefore avoided her error.

    Recovering Democrat (0c21ac)

  29. “convinced me to take the absurd step of buying a book about law that hasn’t been assigned.”

    Matty, don’t worry, it’s all downhill from here. I have a shelf full of the things. Breyer’s book (the most recent of my reading) is pretty good but shallow, he needs to get it all footnoted and dense like an article.

    Angry Clam (fa7fff)

  30. Oh, come on. The republic survived Earl Warren, more or less.

    As to other women who actually know what constitutional law is all about — Maura Corrigan of the Michigan Supreme Court. That would be one of those good news/bad news things. The immediate improvement to the US Supreme Court would be immense – but here in Michigan, her replacement would be appointed by a Democrat. Sigh.

    Tim Morris (55d1fc)

  31. Thursday Cheer (or, yet another reminder why language matters)

    Compliments of John Derbyshire, writing at the Corner:[…] All the windsocks are now pointing in the direction of more socialism. As the population ages, Americans will want more leisure, drugs, health care, nursing homes, security. As the Jihadist th…

    protein wisdom (c0db44)

  32. “Proportional Representation Requirement of the Equal Protection Clause”?

    Harriet Miers’ responses to the Senate questionaire are being parsed and torn apart. After seeing this, I would be really surprised if she makes it through the confirmation hearings, but I’ve been surprised before with politics (such as w…

    Myopic Zeal (739a0c)

  33. Patterico,

    I know you don’t like the nomination. That’s fine, I respect your opinions and may yet join you. Or not, dunno.

    But you are being decidedly one-sided. Will you, for ex, post A.W.’s or TNugent’s reasonable alternative explanations with the same prominence as your original jump-off-a-ledge statement? Or will the alternative remain in the comments section only?

    It matters, I think, cuz the web, too, has the power of the jump.

    [I’ll try to do so over lunch. — Patterico]

    ras (f9de13)

  34. Harriet Miers: It’s A Good Start

    Frankly, I don’t think I need to see a more profound reason to support Harriet Miers than to see one more average, blog-viating lawyer take a header off of a ledge. Unfortunately, quite a few conservative bloggers are so busy

    Riehl World View (af7df9)

  35. Speaking as a Democrat who liked the Roberts nomination and grants the President wide latitude in his nominees, I think this apparent lack of basic knowledge confirms my suspicion about Miers. I think her mission is to join the court and basically vote as Scalia does. Those are the marching orders from W, and she is the perfect loyalist.

    I would rather have someone with the proper training and intellect, even if they don’t vote on things the way I might want to see them go. Hence, my support for Roberts. To the victor go the spoils after all. But if she really isn’t qualified, she should not be confirmed.

    Charles Giacometti (b949c6)

  36. She passed the religion test.

    That is good enough for me.

    M. Simon (d8d91d)

  37. Recovering Dem, was that tongue in cheek?

    If not, perhaps you and everyone else who thinks Miers just demonstrated cluelessness on the equal protection clause should make sure you’re right and she’s wrong, even if her usage of a term or two was a bit loose or even incorrect.

    I took a couple of minutes to look it up. The Court’s opinion in Baker v. Carr (facts included allocation of representation in a state legislature by county, without regard to population) pretty much agrees with Miers’ statement as reported above. Maybe she covered this yesterday in her crash course.

    If you suddenly find yourself in a hole, first stop digging.

    TNugent (6128b4)

  38. More Miers Fun

    The more I read, the more I think the few isolated points I’ve hear in her favor (“trust the President”, favorable to businesses, etc.) are utterly overwhelmed by the absolutely venal cronyism displayed by Bush nominating, and Miers accepting, his…

    Eric's Grumbles Before The Grave (1483fa)

  39. The only thing clear about the situation is that she was speaking about the Dallas City Council.

    The DCC is such a tinderbox on issues touching on race that if certain members DON’T play a “racist” card on someone for a couple of weeks, people begin to wonder if maybe they’ve been out sick.

    Racial gerrymandering is a major hot topic in parts of Dallas, so, if Miers was speaking in obfuscatory terms, there was probably a reason.

    homebru (d0de70)

  40. Quality Matters in SCOTUS nominations, but will it for Harriet Miers?

    President Bush’s nomination of Harriet E. Miers to the Supreme Court has politicians and pundits questioning her qualifications for the job. But in the hyper-partisan world of Supreme Court nominations, do qualifications really matter? The answer—…

    OUPblog (af7df9)

  41. ras, I posted my comment at 10:08 before I saw AW’s. Similar arguments, but he said it better. I really hope that this isn’t just picking on Miers when she said “proportional,” just because that term’s been commandeered by group rights advocates. Don’t forget that Miers has a math background, and probably would use “proportional” as meaning having a constant ratio. In other words, one-man one-vote.

    TNugent (58efde)

  42. A note to the Miers defenders: she is applying for a job, the first requirement of which is the ability to explain the law clearly. If her answer requires this much explaining by commenters on a blog, that is not a good sign.

    Crank (3fed2a)

  43. Crank — Precisely. Whatever she meant, she didn’t articulate it nearly clearly enough.

    I can’t wait until Miers tells the Senate at the hearings that racial minorities are a “suspicious class” for EP purposes.

    Allah (cc4e8d)

  44. I think you are misreading her quote, Patterico. To you “proportional representation” is a technical term with a specific technical meaning having to do with race or other factors. I think she is just being sloppy (which I’ll agree is not a good thing), and didn’t mean the term that way. She just meant that votes have to be roughly “proportional” to each other in their effect. That is, you can’t have one district with 250 voters for one representative and another district with two million voters for another representative.

    This is a common mis-use of the word “proportional” combined with a vaguely remembered (and also mis-used) technical term.

    Don’t jump yet.

    Doc Rampage (b7bb1a)

  45. I have updated the post with links to A.W.’s and TNugent’s explanations. At worst, she is utterly clueless; at best, she is less than clear. I am hoping it’s the latter, but I’m not particularly encouraged either way.

    Patterico (d8a89e)

  46. Can I be sure that all you Con (double entendre intended) lawyers are you aware that every change to voting regulations in the South is reviewed for compliance with the Voting Rights Act for “disparate impact”? I believe that includes re-apportionment, re-districting and selection of polling places. Could this be what she means?

    Of course you can discount me because I am not a lawyer, I voted for Bush and still claim to be a conservative. Not only that, but my first reaction to meeting a lawyer is to put my hand on my wallet to make sure it hasn’t been stolen.

    Kenneth Daves (2983ff)

  47. Um, the proportional representation requirement of the equal protection clause was established in Reynolds v. Sims. Sure, some people screamed that the decision violated the original intent, but that’s how the Supreme Court ruled, and that’s the issue Miers would’ve been faced with on the Dallas City Council.

    George Turner (2fd3e1)

  48. Doc, I don’t think she’s being sloppy, much less wrong, in that use of proportional. She’s using it the way a math teacher would use it, rather than the way a socialist, group-rights advocating, racial-demagoguery spewing civil rights lawyer would use it. Nothing we’ve seen or heard so far should give us any reason to suspect that Miers’ apparent if imperfect understanding of voting rights under the Equal Protection Clause is anything other than a product of her cramming for her Con Law exam that starts in a few weeks. I’m in the yet-to-be-impressed-and-getting-more-skeptical-every-day camp where Miers is concerned (and also in the W-nominated-his-own-lawyer/babysitter?-you’ve-got-to-be-effing-kidding-me? camp), so I’m reluctant to give any cover for those who say “just trust the President” or, still worse, “we’re sure she’s pro-life, so let’s all get behind her confirmation.” But there’s a difference between giving cover for the other side of an issue and making sure that the arguments coming from our side don’t end up with an anti-climactic “oh, never mind” like we used to hear from Gilda Radner’s character on SNL.

    TNugent (58efde)

  49. Um, the proportional representation requirement of the equal protection clause was established in Reynolds v. Sims. Sure, some people screamed that the decision violated the original intent, but thats how the Supreme Court ruled, and thats the issue Miers wouldve been faced with on the Dallas City Council.

    Nothing in Reynolds v. Sims or Baker v. Carr mandates that members of protected classes be represented on legislative bodies in numbers corresponding to their proportion in the general population. Those cases went to the “one man, one vote” principle. Different issue.

    If Miers actually dealt with the latter issue in her City Council case — and maybe she did — then she has expressed herself unclearly, in a way that fooled several legal scholars. Not good. If she really meant that the Equal Protection Clause mandates proportional racial representation, then it’s worse still: she has no idea what she is talking about.

    TNugent and A.W. argue that she meant the latter. Fine. Then my request is: more clarity, please, Ms. Miers. This is not a good sign for someone seeking a lifetime appointment that carries the responsibility of clarifying the law for the nation.

    Patterico (d8a89e)

  50. Good catch. We do have a Con law nerd with us, maybe even the greatest, or the greatest ever. George Turner for Associate Justice.

    TNugent (6128b4)

  51. My perhaps overly cynical judgement is this: having lived in Dallas for 18 years, I am utterly convinced that anyone who has served on the city council is corrupt beyond redmption. It’s a requirement for the position. Anyone else who pays attention to city politics will know what I mean.

    Chia (85373b)

  52. Patterico,

    Agreed that clarity is important. But am I the only one to find it ironic that her precise use of the word was considered fuzzy, and the politicized euphemism would have been clear?

    Not saying you’re wrong, just noting the same sorta thing that made Lewis Carroll smile.

    ras (f9de13)

  53. btw, by “precise” I mean as in the way a math teacher would mean the word. To me – my background is technical – math is more precise than law, tho each field does have its own unique calculus.

    ras (f9de13)

  54. I believe I read in one of her questionaires about running for Dallas City Council , she responded that had their been a minority runnning for the position, she would not have run.

    She is very affirmative action

    alexandra morris (8d0335)

  55. Patterico, what makes you think she meant special group rights, rather than just the right not to have votes diluted? I can’t find that anywhere in the quote you’ve given in your original post, although I did get a sense of how “proportional” is defined in the Cass Sunstein Dictionary of the New and Improved English Language. I’m not familiar with the Dallas City Council issues, so unless there’s something in that situation that makes it clear that she’s referring to racially proportional representation in legislative bodies (that would really be a stunner), then shouldn’t we assume that she’s just referring to numerically proportional representation — that is, legislative districts that each contain approximately the same number of people?

    We lawyers are used to deciding, sometimes arbitrarily, what meanings words have. We do it all the time. Most of us understand that we’re not really changing the meaning of the word for general purposes, but only in the very narrow context of our own work product, whether it’s a brief, a pleading or a contract. But it seems there are some lawyers who could use a reminder that just because we assign a meaning to a word, the previously existing meaning or meanings of that word aren’t superseded, even if we think our new definition is more precise (as if making a word useful in fewer situations is necessarily an improvement — there are some four-letter examples that prove my point, but we’ll keep it clean). Someone please tell Cass Sunstein what most people (and almost certainly most math teachers) in the English-speaking world mean when they say “proportional.”

    TNugent (6128b4)

  56. I find this post excessively dramatic and a good example of the stereotypical loony hysteria of bloggers. Stop it.

    Nobody who went to high school, much less law school, much less works in the White House, much less acts as legal counsel to the President of the United States, could walk around with a belief the Constitution demands that women make up half the Congress. Absolute stupidity. This post attempts to suggest that Miers is not merely a poor nominee, but is an utter retard with sub-zero intellectual capacity. Perhaps I shouldn’t simply “trust Bush” to provide a good conservative judge, but I will trust that he carefully eliminated all candidates who are so unbelievably stupid that they could not possibly dress themselves.

    ss (52cee5)

  57. If she worked with the President to formulate his friend of the court brief/official Presidential position on the UofMichigan case, why wouldn’t we believe that she is for proportional representation of (insert nomenclature here – protected race/class/religion/group/nationality/etc.)?

    Honest question….

    NED

    NewEnglandDevil (cc6b20)

  58. I thought Bush was going to get rid of the soft bigotry of low expectations?

    Otto Man (c8aa67)

  59. #59 – Otto Man
    He obviously did not intend for that to apply to elected officials.

    NED

    NewEnglandDevil (cc6b20)

  60. Can you raed tihs? Of csorue, if you rlelay wnat to.

    or perhaps

    time flies like an arrow
    fruit flies like a banana

    Clarity of written communication requires both the writer and the reader to strive for it.

    ras (f9de13)

  61. i just want you all to know that my above post was written by harriet.

    alexandra morris (8d0335)

  62. Miers said:

    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.

    Most lawsuits filed under Section 2 of the Voting Rights Act have dealt with “at large” seats, and Miers herself occupied one of the two at-large seats on the Dallas City Council. While holding that seat the council was was involved in a bitter fight over redistricting and racial representation. At the time, a little less than half of Dallas was white, but they held all but two seats out of a ten member council. So Dallas had to have a court-supervised redistricting.

    In any such redistricting effort, the proportional representation requirements (non-racial) of the Equal Protection Clause must be met, as laid out in Reynolds v. Sims, which holds that you can have a geographic representation system, but not one where the Las Colinas stockyards or some spread north of Grapevine get one seat, while a high-density area downtown also gets one seat.

    As she would’ve been providing her best advice based on these Supreme Court Rulings and the Equal Protection Clause, I would give her the benefit of the doubt when it comes to knowing about the issue.

    But then Lani Guinier is a Harvard Law Professor, so what can you say? BTW, I may be the only person outside of Louis Farrakan’s group who actually read her book. Her writing style is quite unique, and can be summed up as this.

    Paragraph: racial assertion #1, racial assertion #2, racial assertion #3. Conclusion with absolutely no logical relations to assertions #1, #2, #3. Repeat for hundreds of pages. Hope nobody reads it.

    George Turner (2fd3e1)

  63. This bears repeating:

    In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city’s political structure.

    In the same testimony, Miers, then a member of the council, said she believed that the city should divest its South African financial holdings and work to boost economic development in poor and minority areas. She also said she “wouldn’t belong to the Federalist Society” or other “politically charged” groups because they “seem to color your view one way or another.”

    Jeff G (302dff)

  64. Before you jump, would you be kind enough to send your readers my way?

    steve sturm (e37e4c)

  65. Let’s not let Sunstein off the hook. Given that “proportional” means having a constant ratio (you know, like one legislator for x number of people), he proceeds to say that Miers is confusing “proportional representation” with, well, proportional representation.

    To think that Sunstein might have been on the short list for Associate Justice had Kerry been elected. . . this quote puts him closer to the short bus than the short list.

    TNugent (6128b4)

  66. SCOTUS nominee Harriet Miers showcases her political pragmatism by avoiding making a tough ideological choice at the McDonald's drive-thru window

    Miers:  "Hmmm.  Better let me have a vanilla shake, a chocolate shake, and a strawberry shake.  Because equality of representation and showy gustatory diversity are, after all, the most telling indicators that one has achieved a pro…

    protein wisdom (c0db44)

  67. From Comments over at Ed Morrisy’s Place by RBMN

    From:
    United States House of Representatives, 109th Congress, 1st Session: Foreward of the Constitution
    http://www.house.gov/house/Foreword.shtml

    excerpt:

    The document printed here was the product of nearly 4 months of deliberations in the Federal Convention at Philadelphia. The challenging task before the delegates was to create a republican form of government that could encompass the 13 States and accommodate the anticipated expansion to the West. The distribution of authority between legislative, executive, and judicial branches was a boldly original attempt to create an energetic central government at the same time that the sovereignty of the people was preserved. The longest debate of the Convention centered on the proper form of representation and election for the Congress. The division between small States that wished to perpetuate the equal representation of States in the Continental Congress and the large States that proposed representation proportional to population threatened to bring the Convention proceedings to a halt. Over several weeks the delegates developed a complicated compromise that provided for equal representation of the States in a Senate elected by State legislature and proportional representation in a popularly-elected House of Representatives.

    OK – maybe what she said is fine. But I’m getting more and more uneasy….

    NED

    NewEnglandDevil (cc6b20)

  68. […] Well, welcome to the party, people. Feel free to join the rest of us out on the ledge. One response to ‘“The Miers Support Team: Gloomy and Demoralized”’. RSS feed for comments and Trackback URI for ‘“The Miers Support Team: Gloomy and Demoralized”’. […]

    Confirm Them » “The Miers Support Team: Gloomy and Demoralized” (e203ab)

  69. Here’s section 2 of the Voting Rights Act:

    (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

    The “provided” clause at the end, which addresses proportional representation by race, was, if recollection serves, added after great controversy in 1982 when Congress effectively overturned a Supreme Court decision stating that discriminatory intent was required. What it says, you’ll notice, is that we don’t want you to think we mean what we just said.

    I know very little about voting rights, and I’ll eagerly defer to those who do, but if proportional representation were required by the 14th amendment, this little statute wouldn’t be necessary, and it arguably would be an attempt to cut back on the requirements of the Constitution.

    Attila (Pillage Idiot) (dfa1f1)

  70. This nomination shall be forever known as:

    “THE Edna Mode nomination”

    She’s Incredible.

    Plato's Stepchild (ae616f)

  71. Jeff G, read George Turner’s last comment. It should be enough to dismiss any thought that Miers misused “proportional representation.”

    Patterico, from what I’ve seen around the web today, there are at least a few other conservative bloggers who just accepted Sunstein’s version of this, because he is a “Constitutional Scholar.” So now, there are a whole lot of people who probably never before considered the phrase “proportional representation” but who now think that it means what Sunstein and Guinier say it means, and, more importantly, who also think that Miers got something very basic very wrong. That’s wrong — Miers got it right, maybe just because of the crash course, but maybe not. It’s even worse because the MSM will do its usual knee-jerk: Sunstein must be right because he’s a liberal, and Miers must be wrong, not just because she’s a conservative (politically — we have no idea what she is judicially), but because she’s Bush’s nominee.

    If the appointment to the Court weren’t so important, I would be in favor of circling the wagons around Miers. Won’t do that — but I will acknowledge that she scored a point, even if no one in the MSM willl acknowledge it. Hopefully, the conservative blogosphere will get this right.

    Stop digging. Get out of hole. Fill in hole so you don’t fall in again.

    TNugent (6128b4)

  72. Attila, there’s an enforcement clause in the 14th amendment:

    Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    Having Congress enforce the EPC by legislation is more clearly what was intended than having the Court do so directly. That’s heresy these days, but that doesn’t change the fact that it’s true.

    TNugent (6128b4)

  73. The decision in Reynolds v Sims, which found a proportional requirement in the Equal Protection Clause, wasn’t unanimous, Attila, and Justice John Harlan issued a scorching dissent.

    Yet Chief Justice Warren wrote

    Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State’s legislators. To sanction minority control of state legislative bodies would appear to deny majority rights in a way that far surpasses any possible denial or minority rights that might otherwise be thought to result. And the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.

    He goes further.

    With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live. Any suggested criteria for the differentiation of citizens are insufficient to justify any discrimination, as to the weight of their votes, unless relevant to the permissible purposes of legislative apportionment.

    Here comes the clincher.

    Since the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators.

    And here comes the earth-shaking conclusion that shook up old and comfortable legislative seats, forever and distinctly marking our modern elections from those of past.

    Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race or economic status…. Our constitutional system amply provides for the protection of minorities by means other than giving them majority control of state legislatures.

    By “minorities”, he could’ve been refering to the Dallas City Council, where the minority whites still held the vast majority of seats (about 80%). This wasn’t quite as bad as New Orleans when Mayor Moon Landreux was elected, circa 1970, a majority black city with NO blacks on the city council.

    Here’s a period Dallas Morning News article on the Dallas redistricting, from 1991. Practical Progressive Activist is posting lots of old Dallas Morning News articles regarding Miers role in redistricting, and here’s more.

    The redistricting was supervised by the 5th Circuit Court of Appeals, involved multiple lawsuits based on the racial considerations of redistricting, multiple schemes and maps to redress the problems, with consideration of the Equal Protection Clause of the 14th Amendment.

    Yet from all this a law professor concludes that Miers has absolutely no familiarity with any of it.

    As TNugent pointed out, Sunstein is nuts. This post started with this excerpt.

    “There is no proportional representation requirement in the Equal Protection Clause,” said Cass R. Sunstein, a constitutional law professor at the University of Chicago.

    Did the consitutional law professor bother reading Chief Justice Warren’s opinion? The Supreme Court said there IS a proportional representation requirement in the Equal Protection Clause.

    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 [which we like to call “proportional representation“].

    Anyway, regarding Miers, have we hit any constitutional issues yet? Why yes, I think we have.

    George Turner (25387c)

  74. #47 Kenneth Daves,

    The first thing I think of when I meet a lawyer is: how can I get my competition’s product declared illegal so I can increase my profits.

    M. Simon (d8d91d)

  75. You wrote:

    > I said what it *sounds* like

    You are right, you did. I stand corrected on that point.

    A.W. of Freespeech.com (019011)

  76. And let’s not forget that, as George has reminded us, the author of the opinion that vindicates devoted fan Harriet Miers was written by none other than the man himself, Chief Justice EarlWarrenBurger.

    TNugent (6128b4)

  77. TNugent, I know about section 5 of the 14th amendment. There’s a similar clause in the 15th, which if memory serves was the basis of the preceding court decision.

    My point was that Congress didn’t — or at least said it didn’t — establish proportional representation by statute.

    Attila (Pillage Idiot) (471b7c)

  78. George Turner, #75, you might be responding to someone else. I didn’t say Reynolds v. Sims was unanimous. I didn’t mention the case at all. And I was talking about proportional representation as to race, which is not what Reynolds was about anyway.

    And what does any of this have to do with helping poor Patterico in off the ledge?

    Attila (Pillage Idiot) (471b7c)

  79. Here’s what happened. The person in charge of screening Supreme Court nominations for Bush failed to inspect this one closely enough.

    David M. Brown (4133e3)

  80. The evidence is gone, but the conclusion lingers. Interesting.

    Even if the anti-HM folks are correct – and I remain firmly malleable in my own indecision – are not many of those critics displaying the very attitude they fear in a Justice Miers, that even if she votes “properly” it won’t necessarily be for the right reason?[I feel like I’m repeating myself here: I invited alternate explanations in the post; I updated the post with a proffered explanation when one was made available; and I noted that — even crediting that explanation — several legal scholars were apparently confused by her language (given the proximity of the references to Section 2 and proportional representation, suggesting racial proportional representation to me *and* to those scholars). I don’t see how I’m digging a hole. I respectfully submit that Ms. Miers is the one doing that. — Patterico]

    ras (f9de13)

  81. this si the damndest discussion I’ve ever read. If she were a mathematician, her statement might be understandable. But she is a lawyer. One man one vote is not what lawyers mean by proportional representation. She is either ignorant or technically illiterate, either of which is disfavored in Supreme Court justices.

    sklein11 (db721a)

  82. Well Attila, I was just addressing your point that neither Congress nor the Constitution clearly mandate proportional representation, which is why the ruling wasn’t without dissent. In principle, the Senate and Electoral College completely violate the principle of proportional representation, yet our constitution is a compromise, so that’s okay too.

    Reynolds does address race in an elliptical way, since anytime you have a system where those being elected are from a minority, and maintain their stranglehold on power through disproportionate voter representation, then those without power, though constituting a majority of the population, will remain blocked from power, and thus potentially are blocked from equal protection under the laws, vis-a-vis one man one vote. They could be blacks, poor whites, or just city folks, but the effect in any case is not very democratic.

    Back in the 1960’s, this was a very big racial issue, of course. But what Congress had to establish is that they didn’t mean that elected representation had to be some particular reflection of the electorate, a position held by Lani Guinier, who wanted a system of guaranteed black and minority seats in Congress.

    And don’t worry too much about Patterico. He’ll come in when he gets hungry, or needs more stuff to blog.

    George Turner (25387c)

  83. sklein11 et al,

    Could you direct me – a link w/b fine, thx – to the legal definition of “proportional representation?”

    If it’s just a colloquial/political term, lacking a formal definition of any sort, then HM is perfectly correct to use it as she did: i.e. representation in proportion (to population).

    But if the term “proportional representation” (a.o.t. the lengthier “proportional representation by population“) has a single, formal definition in law, one that specifically makes it apply solely to proportional representation by race, then we would have an instance of poor writing on HM’s part.

    Either way, it should be an easy puzzle to solve. Got a link?

    ras (f9de13)

  84. For further thoughts on “proportional representation” see here: http://electionlawblog.org/archives/004260.html and note especially comment 1.

    DRJ (15ed57)

  85. I am not sure whether to laugh at this nonsense, or to be sad that Patterico, who usually makes sense, is being so silly. (Maybe both. The post is pretty darn funny, though unintentionally.)

    Unless I am wrong, Patterico is, at least in years, a grown-up. But you wouldn’t know that from the post.

    Should I say something serious? I hate to spoil the mood, but I will. Here it is: Come down off the ledge, take a deep breath, and think for just a few minutes. All this drama does no one any good.

    Jim Miller (82104c)

  86. “… no idea what the Constitution says.” Perhaps that’s a bit hyperbolic. I’d say it is; you’d say it is, if it were in an LAT lede, wouldn’t you?

    Beldar (5cb405)

  87. Well, there’s a bit of hyperbole in the post, no? And it is intentional, Jim. I mean, I hate to spoil the joke, but I’m actually sitting at home at my computer. I’m not literally on a window ledge. You knew that, right?

    Explaining jokes always ruins them.

    Here’s the thing, Beldar. (If you read over the comment thread, I’m saying this for about the fifth time.) If, as Sunstein and other legal scholars seemed to think, Miers really believed that the Equal Protection Clause mandated “proportional representation” in the way I took her to mean it — that members of protected classes like racial minorities must be represented on legislative bodies in numbers corresponding to their proportion in the general population — than she is as clueless as clueless can be.

    However, I noted in updates to the post that some — A.W., TNugent, and now John Hinderaker — have read her statement as simply referring to the “one man, one vote” requirement. If that’s true, then she is perhaps not as constitutionally clueless as I’d originally thought. But she is far too sloppy with her language, and apparently unfamiliar with the general use of the term as used by people who regularly discuss these issues. This is a less serious defect, but is a defect nonetheless: a failure of clarity. I don’t consider that trivial.

    But then, we already knew her writing is weak — so if A.W., TNugent, and John H. are right, then we are learning nothing truly new.

    I’m getting tired of saying the same thing over and over, so I’m hoping this is the last time I’ll have to explain this.

    Patterico (4e4b70)

  88. Patterico got it right. She used the phrase proportional representation in a way that is inconsistent with the way it is used by people “who regularly discuss these issues.” But out of idle curiousity, if proportional representation (using the phrase the way lawyers use it) is so bad, why did we insist on it in Iraq?

    Invictus (5d3e98)

  89. Wait wait wait….so Patterico isn’t actually on the ledge?

    The world I knew is gone.

    Christopher Cross (88c07d)

  90. Patterico – Well, I won’t tell you to take a time out, though I am tempted to do so. But I will make one factual point and give you one challenge.

    First, the factual point: Polls show that conservatives and Repubicans generally support Miers. It is simply false to claim otherwise as some conservative and libertarian bloggers have been doing. No blogger should say that conservatives oppose Miers — because most of them don’t. (Out of kindness, I won’t name the blogger who did an absurd poll of bloggers in order to make the opposite argument.)

    Second, the challenge: President Bush promised to nominate justices like Scalia and Thomas. Most seem to think that Roberts is like Scalia, at least in his knowledge of the law. (Roberts is much slicker, which causes me a little worry.)

    Opponents of Miers have been unwilling to face the fact that Miers is like Thomas. Both were chosen for political reasons — something that does not bother me. Neither had the kind of resume that would impress a law professor. Both were chosen because they were personally trusted by the president who nominated them. Or to put it another way, both could be accuse (unfairly) of being “cronies”.

    Opponents of Miers on the right need to answer this question: If you applied the same standards to Clarence Thomas that you are using on Miers, would you conclude that it was a mistake for the first President Bush to nominate Thomas? I think you would — if you are honest intellectually.

    (Personally, I think that Thomas has worked out pretty well, which is one reason I support Miers.)

    PS – Don’t you think its time to add a link to my site?

    Jim Miller (de079c)

  91. Scoot over. I’m coming out on the ledge, and I brought lunch (and no, it ain’t none of that sissified easterner porcine crap, either).

    After all, if Consuelo’s on deck and Callahan right behind her, I’m gonna be on this here ledge for a long time.

    MrSpkr (67f49d)

  92. With all due respect, Jim, Miers is not Thomas.

    Thomas went to Yale, the most selective law school in the country. Miers did not.

    Thomas had served, albeit briefly, as a federal appeals court judge, producing written opinions. Miers has not.

    Thomas had well-known views on a number of issues, and was widely known to people in DC besides the president who could vouch for his intellect and his stubborn, prickly temperament. Evidence of the same for Miers is skimpy (her tenure on the Dallas City Council marks her as irresolute), and her views on few issues are known; she would not, unlike Thomas, be quizzed on her known philosophical commitments.

    Thomas headed an administrative enforcement agency that required him to stake out and defend public policy positions, including pursuing actions in court. Miers’ jobs have involved either private counseling of the president, purely administrative functions with few policy implications (the Lottery Commission), or jobs with a lot of happy talk and no responsibility for persuasion (the State Bar).

    I don’t have handy samples of Thomas’ pre-confirmation writings, but I suspect they show a much greater clarity and insight than Miers’.

    Crank (3fed2a)

  93. What’s Been Going On

    Though I haven’t been writing, I have indeed been reading and these are the items that have drawn my interest. Patterico, playing to lovers of lawyer jokes everywhere, is ready to make a good start end it all over the

    baldilocks (af7df9)

  94. Patterico, it doesn’t bother me a bit that Miers is confusing Sunstein, particularly when I consider that the cause of this confusion is Miers’ proper use of ordinary words in the English language, clearly conveying an idea that non-lawyers of average intelligence are capable of understanding. When you look up “Out of Touch Con Law Geek” in the dictionary, do you find Sunstein’s picture?

    TNugent (6128b4)

  95. Apologies for the late hit, and IANAL, but I was surprised none of the comments discussed Thornburg v. Gingles, 478 U.S. 30 (1986), and its three-part test, or “Gingles factors” for demonstrating minority vote dilution: “(1) compactness; (2) cohesive minority voting; and (3) a bloc voting majority that can usually defeat the minority-preferred candidate.” Reading through Gingles, it appears to be nothing but an exercise in proportional representation. In the first place, proportional representation was one test of whether a minority bloc is being properly represented:

    Consistent and sustained success by candidates preferred by minority voters is presumptively inconsistent with the existence of a 2 violation.

    Further, the main issue was the proportion of minority voters in any particular district, a fact noted by O’Connor:

    There is an inherent tension between what Congress wished to do and what it wished to avoid, because any theory of vote dilution must necessarily rely to some extent on a measure of minority voting strength that makes some reference to the proportion between the minority group and the electorate at large. [emphasis added]

    Finally, the test as approved provides a de facto entitlement to proportional representation (O’Connor):

    Third, although the Court does not acknowledge it expressly, the combination of the Court’s definition of minority voting strength and its test for vote dilution results in the creation of a right to a form of proportional representation in favor of all geographically and politically cohesive minority groups that are large enough to constitute majorities if concentrated within one or more single-member districts.

    Is there some reason this isn’t pertinent, or that I shouldn’t read it the same way Miers apparently does?

    Cecil Turner (9c6ab9)

  96. I want to send a few comments on the nomination of Harriet E. Miers to the U.S. Supreme Court not to engage in the controversy surrounding her qualifications, experience or views but rather to offer my perspective on what makes a good lawyer a better judge.

    First, I want to take a brief look at the answers she submitted to the Senate Judiciary Committee, remembering that President said this at a press conference on October 20, 2005.

    “One thing the questionnaire does show, if people look at it carefully, is Harriet’s judicial philosophy,” Bush said. “It’s the main reason I picked her.… She is not going to legislate from the bench. She will strictly interpret the Constitution.”

    I did look at the questionnaire carefully. Her 57-page response was submitted by a person serving as White House Counsel, presumably having available to her a staff of lawyers, word-processors, secretaries, clerks, interns and others as well as handlers, consultants, advisors and legal colleagues from her years of practice in Texas, where she was president of the Dallas Bar Association and Texas State Bar Association, and years of activity in the American Bar Association. A copy of what she submitted to the Judiciary Committee, which has its own staff of lawyers, word-processors, secretaries, clerks and interns can be found at http://www.nationalreview.com/pdf/HEM%20Questionnaire%20final.pdf.

    Better lawyers and word-vetters than me are going to have a field day with how she responded.

    If you take the time to download her responses and copy them into a Microsoft Word document and run it through the standard spell/grammar checker as I did, you may be as puzzled as I was to find at least four misspellings. She wrote “breach of contact” rather than “breach of contract” on Page 41, “misprepresentation” rather than “misrepresentation” on Page 44 and “law suits” rather than “lawsuits” on Page 51 and “free wheeling” rather than “freewheeling” on Page 55. The first two are embarrassingly dumb mistakes–the last two just slightly less so. However, my spell/grammar checker found many other errors and typos, missing commas and frequent poor grammar.

    Second, the questionnaire mostly gathers personal and background information. However, questions 17, 18 and 28 and, perhaps, others allowed her an opportunity to write about her legal and judicial philosophy in response to questions about her experience with the constitutional issues, legal activities and judicial activism. She did not take advantage of the opportunity offered. Instead, she wrote dryly about a relative handful of cases she handled over the last 35 years. In one instance, she expressed a garbled understanding of constitutional equal protection law and proportional representation requirements of the Voting Rights Act. Here is a part of what she wrote in response to Question 17 on Page 49:

    “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.”

    Proportional representation was a focus of debate in the early 1980s. Democrats and liberal activists were pressing for Congress to change the Voting Rights Act to ensure minorities equal representation on city councils, state legislatures and in the U.S. House. They were responding to a 1980 case in which the Supreme Court upheld an election system in Mobile, Alabama, that had shut out blacks from political power. The city was governed by a council of three members, all elected citywide. About two-thirds of voters were white and one-third black, but whites held all three seats. The Supreme Court said Mobile’s system was constitutional, so long as there was no evidence it had been created for a “discriminatory purpose.”

    “The equal protection clause does not require proportional representation,” the court said in a 6-3 decision. In dissent, Justice Thurgood Marshall said the decision gave blacks the right to cast “meaningless ballots.” In response, Congress moved to change the Voting Rights Act to permit challenges to election systems that had the effect of excluding minorities from power. The Reagan administration opposed those efforts, saying they would lead to a proportional representation rule.
    Congress adopted a hazy compromise in 1982. It said election systems could be challenged if minorities were denied a chance “to elect representatives of their choice…. Provided that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion of the population.”

    This law put pressure on cities such as Dallas to redraw their electoral districts in areas with concentrations of black or Latino voters. The number of minority members of Congress doubled in the early 1990s after districts were redrawn. When Ms. Miers took her at-large seat on the Dallas City Council in 1989, the council was already involved in Voting Rights Act litigation over the composition of the council, with minorities arguing for greater representation through districts.

    The city council, then with 8 districted members and 3 at large members, considered ways to respond to the lawsuit, including adopting a plan, the 10-4-1 plan, which would have created 10 single member districts, four elected from “quadrant” districts, and a mayor (elected at large). When Ms. Miers first came on the council, she was non-committal. She said she preferred retaining the two at-large seats on the council so that there will be someone on the council, other than the mayor, with a citywide perspective. The Justice Department opposed the 10-4-1 plan, which had been approved by voters. After a 14-1 plan was approved containing 4 rather than a possible 5 African-American majority districts, Ms. Miers told a group of minority lawyers at a bar association luncheon that “Incumbent issues caused the maps under consideration to be drawn a certain way….If we can take the issue of incumbency away, we could have a map in a New York minute.”

    While, Ms. Miers clearly grasps the proportional representation clause of the Voting Rights Act, it was also clearly erroneous of her to say that it was a requirement of the equal protection clause. Making such a mistake over the Voting Rights Act and the equal protection clause of the U.S. Constitution in a response being sent to the Senate Judiciary Committee, when Senator Kennedy grilled John Roberts over this general subject makes her error enormous.

    Third, her response to these open-ended questions, twice raised a red, white and blue flag. In partial response to Question 18 on Page 50 she wrote:

    “My experience on the City Council helps me understand the interplay between serving on a policy making board and serving as a judge. An example, of this distinction can be seen in a vote of the council to ban flag burning. The Council was free to state its policy position, we were against flag burning.”

    In partial response to Question 28 on Page 56 she also wrote:

    “There was a vast difference between our vote as a policy matter to prevent the desecration of the American flag, and the job of the courts (including the Supreme Court) to rule whether such an ordinance was constitutional.”

    This bothers me for two reasons. First, the City’s legal staff certainly would have provided her and other members of the council either written memorandums or offered oral advice regarding the four U.S. Supreme Court cases regarding flag burning. They are U. S. vs O’Brien (1968), Schact vs. U. S. (1970), Spence vs. Washington (1974) and Texas vs Johnson (1989). (It seems to me that there is likely some connection between this last case and the flag burning action by the Dallas City Council.) Nonetheless, the City Council and Miss Miers voted to prohibit flag burning.

    Second, remarkably, she suggests, perhaps, inadvertently, that legislative bodies are somehow free to take actions which by precedent are unconstitutional while the courts may not. Frankly, I do not understand. All state and federal officers take an oath to support the Constitution and are bound by Article VI to be to support its obligations. Legislators and executive officials are obliged to consider the constitutionality what they decide. Bills are routinely opposed in the US Congress, State Legislatures and City Councils because of constitutional questions. Presidents veto legislation over constitutional doubts. In sum, contrary to Ms. Miers, the Supreme Court is not the only institution entrusted with adherence to the Constitution.

    Twice mentioning the flag-waving action she took as a member of the Dallas City Council looks like political grandstanding by a judicial nominee. If asked, would she say that the action she took was unconstitutional? Or would she refused to answer.

    Finally, it is interesting to note that she may have been clerking for U.S. District Judge Joe Estes when he issued an opinion affirming a Texas statute regarding flag desecration. Here is the opinion:

    Robert Alan JONES, Plaintiff, v. Henry WADE and Frank Dyson, Defendants

    Civ. A. No. 3-3850-A

    UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION

    338 F. Supp. 441; 1972 U.S. Dist. LEXIS 15314

    February 1, 1972

    JUDGES:

    Estes, Chief Judge.

    Plaintiff Jones is presently under indictment for violation of Article 152, Vernon’s Ann. Texas Penal Code, proscribing insult to the flag of the United States, in Cause No. C-70-4160-L/H, pending in the Criminal District Court of Dallas County, Texas, which violation was alleged to have occurred on or about May 19, 1970.

    On May 18, 1970, at about 1:20 p.m., Jones was arrested by officers of the Dallas Police Department for suspicion of a violation of Article 152. At the time of his arrest, Jones was wearing (a) an army surplus green fatigue shirt with a small American flag sewn over the right breast pocket and (b) a pair of army surplus green fatigue pants with small American flags sewn into the bottom of the legs of his trousers. On the basis of the arrest and incarceration of Jones, on May 18, 1970, his attorney, Bill Barbisch, filed on the afternoon of the same day an application for writ of habeas corpus in the 195th District Court of Dallas County, Texas, which application was set for hearing May 19, 1970, at 11:00 a.m.

    Prior to the filing of the writ and without the plaintiff’s attorney knowing, plaintiff was released at 3:30 p.m. on May 18, 1970, without charge. On the morning of May 19, 1970, and prior to the time of the 11:00 a.m. writ of habeas corpus hearing in the 195th District Court, Dallas County, Texas, plaintiff filed this action in federal court.

    The Original Complaint requested that a three-judge court be convened to hear this case and that a declaratory judgment be issued holding Article 152 of the Texas Penal Code unconstitutional on its face. Plaintiff also requested a temporary restraining order and a preliminary and permanent injunction, restraining defendants, their agents and successors from enforcing the challenged statute. Plaintiff sought costs and whatever other relief to which plaintiff was entitled.

    On May 19, at 11:00 a.m., plaintiff’s attorney learned that Jones had been released without charge at 3:30 p.m. on the preceding afternoon. The admitted purpose in filing the federal suit prior to the 11:00 a.m. writ hearing was to make certain that the plaintiff’s suit fell within the doctrine of Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), by having been filed prior to any formal charge against plaintiff by state law enforcement authorities.

    On the afternoon of May 19, 1970, plaintiff, dressed in the same manner as he had been dressed on May 18, went to the office of Henry Wade, District Attorney for Dallas County, Texas, where he was arrested and charged with a violation of Article 152 of the Texas Penal Code, which violation was alleged to have occurred on or about May 19, 1970. Plaintiff’s attorney had advised Jones that he might be arrested if he appeared at the district attorney’s office dressed as he was on May 19. Notwithstanding this warning, plaintiff persisted in wearing the same apparel to the office of the district attorney. Moreover, plaintiff made garments substantially identical to the garments which he wore on May 18 and 19, 1970, and on two occasions since May 19, 1970, has worn such garments displaying the United States flag or replica thereof in public and in view of law enforcement officers of Dallas County. The parties to this suit have agreed that the District Attorney of Dallas County will not further prosecute Cause No. C-70-4160-L/H against plaintiff pending the final determination of this suit.

    It is clear that plaintiff must assert traditional equitable grounds entitling him to the injunctive relief he requests. Younger v. Harris, 401 U.S. 37, 46, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971); Perez v. Ledesma, 401 U.S. 82, 122, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971); see also Douglas v. City of Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324 (1943), and Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). The facts of this case present no such equitable grounds for relief.

    Plaintiff is being prosecuted for alleged unlawful conduct and not for his speech or expressions. The Texas Court of Criminal Appeals recently declared that Article 152 was a constitutional statute. That Court stated that in cases involving either pure communicative conduct or speech plus conduct, a sufficiently important governmental interest in regulating nonspeech aspects of the conduct can justify incidental limitations on the right of expression. Deeds v. State (Tex. Cr. App., Nov. 9, 1971), 474 S.W. 2d 718. Plaintiff’s purposeful conduct brought about a prosecution under Article 152, with which a federal court should not interfere on equitable grounds. The allegations by plaintiff that his conduct was a means of expressing his feelings does not change the fact that he is being prosecuted solely for the act of wearing American flags or replicas thereof sewn into the bottom of the legs of his trousers. Whether such conduct falls within the prohibition of the statute is a question to be decided by the state court, and this court has no justification for interfering with the state court’s performance of its duty.

    In addition, this Court finds that under the circumstances surrounding the institution of this suit, the doctrine of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), would be thwarted if plaintiff were granted relief from the state prosecution through federal interference. The Younger case repeats the admonition of Fenner v. Boykin, 271 U.S. 240, 46 S. Ct. 492, 70 L. Ed. 927 (1926), that a suit to enjoin state prosecutions “even with respect to state criminal proceedings not yet formally instituted, could be proper only under very special circumstances.” (emphasis added) Younger v. Harris, supra, 401 U.S. at 45, 91 S. Ct. at 751.

    The Younger doctrine of non-interference with pending state prosecutions is one of reasonableness and results from the necessity that our federal and state systems coexist and function to achieve the just and speedy disposition of criminal prosecutions. The rationale of the Younger doctrine would be defeated if races to the courthouse were allowed to circumvent the application of the rule.

    The facts of this case show that the plaintiff was arrested for suspicion of a violation of Article 152 and was released, and that the next day plaintiff was arrested again for the same conduct and later was indicted by a grand jury. The second arrest took place in the office of the district attorney, who is charged with enforcement of state penal statutes, where plaintiff had gone knowing that arrest was probable and with the intent of doing what he knew to be considered a violation of Article 152. The State officials had no alternative to the prosecution of plaintiff other than a complete abdication of their responsibilities to enforce the laws of the State of Texas. In this case, the good faith of the State prosecutors cannot be challenged.

    In attempting to prove that the State cannot prosecute an act as unlawful if the actor intends the act as a means of expression, plaintiff has continued to wear American flags or replicas thereof in the same manner as resulted in his indictment. Equity requires that he be made to set up and rely upon in the state court his defense that his prosecution is unconstitutional or that his conduct is not prohibited by Article 152.

    Finally, this Court stands ready to and does declare that Article 152 of the Texas Penal Code is a valid exercise of the police power of the State of Texas to preserve the dignity of the flag of the United States of America and to prevent the violence which would naturally result from public indignities shown the national emblem.

    Plaintiff is not entitled to the relief demanded.

    Therefore, this action should be and hereby is ordered dismissed at plaintiff’s costs.

    Good lawyers don’t make dumb mistakes. The best lawyer I ever worked with, the late Paul J. O’Reilly rarely wrote his own briefs, legal opinions, ordinances, etc. Junior lawyers in the law firm did almost all of that kind of work, which he carefully reviewed. Many times over the years, he picked up some piece of my work, scanned — just that fast — the first, second and last page, marking and pointing out typos neither I, my word-processor or secretary had caught and fixed.
    He would grill me with questions, spit out suggestions for further research, facts to investigate, people to consult. Good lawyers surround themselves with a good staff, demand and get good staff work. What makes a good lawyer a better judge? Having surrounded themselves with good staff and getting good staff work, they think about what they are doing one case at a time, demanding that the lawyers appearing and arguing before them do good work in the interests of justice.

    Neil J. Lehto (77bed1)

  97. I believe that the Dallas City Council actually voted on a resolution urging Congress to adopt an anti-flag burning constitutional amendment rather than an ordinance. That in case, what she wrote is a muddled mess.

    Neil J. Lehto (77bed1)

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