[“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.