Patterico's Pontifications


Harriet Miers Isn’t the Only One Who Can’t Proofread

Filed under: Humor,Judiciary — Patterico @ 11:53 pm

From the New York Times:

Mr. Cornyn, a friend of Ms. Miers from Texas, called her highly qualified and predicted that neither the president nor Ms. Miers would withdrawal the nomination.

Maybe that’s what it sounded like Cornyn said, what with that southern withdrawl of his.

Washington Times Says White House Is Preparing for Possible Miers Withdrawal

Filed under: Judiciary — Patterico @ 11:33 pm

Am I wrong to assume that Miers is still going to be confirmed? I don’t think so. But a new article in the Washington Times makes me wonder. It’s titled Insiders see hint of Miers pullout, and pits anonymous Republicans against the White House:


Postcards from the Ledge: Miers Fooled More Scholars Than Just Cass Sunstein With Her Reference to Proportional Representation

Filed under: Judiciary — Patterico @ 10:48 pm

[“Postcards from the Ledge” is a semi-regular feature of this site, detailing revelations about Harriet Miers that have driven your gentle host out onto the window ledge.]

It turns out that Harriet Miers’s reference to “proportional representation” confused more people than just myself and Cass Sunstein — as the L.A. Times makes clear in a story titled Scholars Are Puzzled at Miers’ Equal Protection Response:

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

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

At one point, Miers described her service on the Dallas City Council in 1989. When the city was sued for violating the Voting Rights Act, she said, the council “had to be sure to comply with the proportional representation requirement of the Equal Protection clause.”

But the Supreme Court repeatedly has said that the Constitution’s guarantee of the “equal protection of the laws” does not mean that city councils or state legislatures must have enough minority members to match the proportion of blacks, Hispanics and Asians in the voting population.

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

That’s one voting-rights expert who is not Cass Sunstein. Here’s another:

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

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

That’s two election law experts.

In comments to my post on this issue yesterday, several commenters argued that Miers could have been making an inartful reference to the “one man, one vote” rule. And indeed, according to The Times, that is the White House’s defense:

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

Once that explanation was offered, I updated my post to reflect it. But, as I said numerous times in these updates (as well as in comments to the post), this explanation is not terribly reassuring. Miers should have been aware of the usual use of the term “proportional representation.” Her use of the phrase ended up confusing a lot of election law experts. Despite the efforts of some to portray it otherwise, that is not a good thing. The significance of today’s Times story is that Cass Sunstein was not the only legal scholar misled by Miers’s imprecise language — by a longshot.

In the end, I agree (for once) with a third election law expert, Loyola’s Rick Hasen:

“There are two possibilities here. Either Miers misunderstood what the Equal Protection clause requires, or she was using loose language to say something about compliance with the one-person, one-vote rule,” said Richard Hasen, a professor at Loyola Law School in Los Angeles who specializes in election law. “Either way, it is very sloppy and unnecessary. Someone should have caught that.”

That’s three election law experts.

Hasen’s quote sounds remarkably like my take on this yesterday:

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.

Folks, we need clarity in the law. We don’t need a Supreme Court Justice who leaves experts scratching their heads trying to figure out what the Justice is trying to say. We already have enough Justices like that, thanks very much.


I Usually Have Little Use for Lithwick…

Filed under: Humor,Judiciary — Angry Clam @ 9:59 pm

[Posted by The Angry Clam]

…but her suggestions for a questionnaire that Miers is able to answer is hilarious.

1. Who is the bestest, smartest, coolest president ever?

2. Please provide the names, addresses, and telephone numbers of everyone with whom you have never discussed Roe v. Wade.

3. True or False: Barbara and Jenna totally don’t appreciate how cool their mom and dad are.

4. Is it correct for a comma to appear before a coordinating conjunction linking the parts of a compound predicate?

5. You have named Chief Justice Warren Burger as one of your favorite Supreme Court justices. Is it his devastating intellect, his soaring writing style, or his evenhanded administration of the court that you most admire? Where do Charles Whittaker and James McReynolds rank among your Top 10 Justices?

6. When you wrote “Dates Not Available” next to most of the events at which you gave speeches throughout your career, did you mean that you were unable to recall the dates of the events, or that Justice Nathan Hecht was stepping out with Priscilla Owen that night?

7. Best bowling score ever?

8. If Jesus and President Bush got into a fight, who would win?

9. Please name any state Bar Associations from which you have yet to be suspended.

Ouch. It hurts because it’s true.

— The Angry Clam

UPDATE FROM PATTERICO: Sorry . . . Ms. Lithwick still gets under my skin. But she has a great point about Burger. I’m still just appalled by that answer of Miers’s. Even as an administrator, Burger was God-awful. I dare any Miers defender to claim otherwise. Read The Brethren to see what I mean.

Anyone who admires Warren Burger for any aspect of his tenure on the Supreme Court is utterly clueless about the Supreme Court — period.

Crank Opposes Miers

Filed under: Judiciary — Patterico @ 5:31 pm

Baseball Crank has an excellent post on why he has come down from the fence and decided to actively oppose the Miers nomination. Great stuff — and great blog.

P.S. Jeez, I sound like Harriet Miers, using the word “great” twice in one post.

Maybe It Was, Oh, I Dunno . . . The Quality of the Nominee??

Filed under: Dog Trainer,Judiciary — Patterico @ 6:54 am

The L.A. Times cluelessly compares Harriet Miers and John Roberts, here:

Administration officials acknowledge that they were caught by surprise by the deluge of criticism from activists on the right who thought her record did not demonstrate a clear and strong commitment to conservative principles. By contrast, when Roberts was nominated, he was warmly embraced by GOP activists — in part because White House operatives and allies conducted a behind-the-scenes campaign to win the allegiance of conservatives who might have favored a more stridently conservative nominee.

You don’t think they’re conducting a behind-the-scenes campaign with the Miers nomination? You don’t think that Roberts’s impressive background, court opinions, and memos showing a commitment to principles of judicial conservatism had anything to do with it?

Get a clue.

The Timeless Art of Flattery

Filed under: Judiciary — Patterico @ 6:43 am

The L.A. Times has a piece in the Style section about Harriet Miers’s effusive praise for the President, titled The timeless art of flattery. She is compared to Eddie Haskell:

Move over Eddie Haskell. Harriet E. Miers could teach you a thing or two about sucking up.


Proofreading Miers’s Questionnaire Answers: Questions 17 and 18

Filed under: General,Humor — Patterico @ 6:41 am

This is my latest post proofreading Harriet Miers’s questionnaire answers. This post looks at Miers’s answers to Questions 17 (“Constitutional Issues”) and 18 (“Legal Activities”). She did much better than in her answers to Questions 15 and 16. My main comment is that someone needs to teach her that a comma does not perform the same function as a semi-colon or a period.

Page 48:

We argued that Pioneer had insufficient contacts with Illinois to be subject to personal jurisdiction there, the court ultimately disagreed.

That should be a semicolon and not a comma. The same problem pops up in the next example, at page 50:

The Council was free to state its policy position, we were against flag burning.

As before, I am avoiding the pickier points, such as whether the various branches of government should be capitalized (pp. 50-51) or not (pp. 54-55). See how kind I am?

P.S. As always, the race is on to find something wrong in the blog post about proofreading . . . . Bonus points to the first person to spot an error in this post — but don’t forget my retort! (You can find it in the P.P.S. to my earlier proofreading post.) And remember: we’re having fun here, as evidenced by the filing of these posts in the “Humor” category.

Wall Street Journal: Miers Nomination a “Political Blunder of the First Order”

Filed under: Judiciary — Patterico @ 6:25 am

The Wall Street Journal runs an editorial today calling the Harriet Miers nomination “a political blunder of the first order.” Some excerpts:

Regarding Ms. Miers’s qualifications, we aren’t among those who think an Ivy League pedigree or judgeship is a prerequisite for a Supreme Court seat. But the process of getting to know Ms. Miers has been the opposite of reassuring. Her courtesy calls on Senators have gone so poorly that the White House may stop them altogether.

I agree with this entirely, by the way — as well as this point:

In earlier and less polarized times, someone without broad Constitutional experience might have avoided this trouble. But after decades of Republican anger over judicial activism, and 20 years of disappointing GOP Court selections, a nominee who was a blank slate was bound to get pounded. Mr. Bush has set her up to be hit by a withering political crossfire.

The editorial concludes:

Perhaps Ms. Miers will prove to be such a sterling Senate witness that she can still win confirmation. But so far the lesson we draw from this nomination is this: Bad things happen when a President decides that “diversity,” personal loyalty and stealth are more important credentials for the Supreme Court than knowledge of the Constitution and battle-hardened experience fighting the judicial wars of the past 30 years.

Excerpts don’t do it justice. Read it all.

The Journal stops short of actively calling for Miers’s withdrawal or defeat. But I think that the frank nature of the editorial adds momentum to the anti-Miers movement. The Journal‘s editorial voice, like that of Robert Bork, is not easily ignored. It will be interesting to see how Miers supporters react to today’s piece.

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