Postcards from the Ledge: Miers Fooled More Scholars Than Just Cass Sunstein With Her Reference to Proportional Representation
[“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.
PREEMPTIVE P.S. No doubt several people will criticize me for citing the L.A. Times as a source. I’m getting a lot of that type of commentary lately.
Well, the paper also said that Hurricane Wilma struck the Yucatan Peninsula today. Are we to believe that this did not happen, simply because the L.A. Times says it did?
I am as suspicious as anyone of this paper when it comes to hot-button legal issues, and I am no fan of David Savage, the author of the article. But I try to stick to fact-based criticism, and I don’t stick my head in the sand and try to pretend that the articles are always 100% wrong.
If anyone has a valid criticism of this article — such as a good reason to doubt that the scholars actually said what was attributed to them — I’m happy to hear it. It wouldn’t be the first time that the paper got something like that wrong. But, without more, snarky comments that an assertion must not be true because it appeared in this newspaper are not a convincing form of argument.
Nor am I likely to be convinced by wave-of-the-hand dismissals of legal experts’ opinions because they are pointy-headed professors. The fact is that they are conversant with the relevant terms of art, and a Supreme Court Justice needs to be conversant with those terms of art as well — and nip potential ambiguities in the bud before people get confused.
If you want to slam this article, or the professors themselves, then back up your criticisms. That’s what I do.
Election/redistricting law is an unusual and specialized field. Our host, as a scholar and a gentleman, may have intimate familiarity with its lingo, caselaw, and concepts, for which I applaud him. I would venture to guess, however, that 98 percent of the lay public, and 90 percent of lawyers, had as their first reaction to this story a fair amount of confusion not due to Ms. Miers’ statements, but to the comparative obscurity of the subject.
That’s not to dismiss its importance; but I, for example, had not heard any of these terms since law school until I began blogging specifically about the Texas redistricting efforts. I’d likewise be surprised if even our host has been counsel of record in a case directly involving these terms. And for what it’s worth (which isn’t much): “One person, one vote” has become the preferred and politically correct term of art, usually abbreviated OPOV. Were our host to have written “one man, one vote” on a judicial questionaire of his own, he’d be savaged by some for being sexist — unfairly, of course, but there you have it; criticism isn’t always fair, is it?
Those who don’t live in geographic areas covered by the section 5 preclearance provisions of the Voting Rights Act of 1965 — all y’all who aren’t statutorily, irrebuttably presumed, based on reprehensible conduct of your grandparents’ generation, to have racist intent if a redistricting has even arguably negative racial effects, such as disproportionate effect on existing minority office-holders — may look at things somewhat differently, and are likely see these issues come up in different contexts than we do here in Texas. If, as I suspect, most of Ms. Miers’ exposure to Voting Rights Act concerns, and in turn its underlying constitutional concerns, came not through her own law practice, but rather through discussion from the Dallas City Council’s facing of voting issues, then she probably relied upon the Council’s legal advisors — who, one presumes, were retained with the understanding that they had some expertise — rather than trying to re-learn the subject from scratch. That is to say, while she undoubtedly would bring her general knowledge as a lawyer to the City Council’s deliberations, she almost certainly wasn’t trying to be the City Council’s own lawyer on these issues. Perhaps she was repeating imprecise language she’d heard others use; perhaps her memory has been smudged slightly by the intervening years and events. Her critics, of course, blame her for all errors, but never account for the possibility that others may actually have introduced them; but the questionaire was her responsibility, and if someone else initiated an error, I doubt she’d try to escape responsibility for it.
Still, I think it’s important to recognize that this isn’t an area of law in which she’s practiced. It’s an area of law now much more thoroughly taught in law schools than it was in 1966-1970 (which was when much of modern election law was really getting going). So these things temper my expectations of someone in her position. I have no doubt that were I to be on a corporate board of directors whose counsel gave us federal income tax advice, for example, I’d make a thorough muddle in trying to explain what advice had been given to us — and that probably would be true even if I actually had a reasonably good understanding of what we were doing when I cast my votes! It’s the classic difference between active and passive vocabulary.
So if Ms. Miers, as our host charges, was guilty in failing to be as accurate as he might wish, or as an election law expert might wish, or perhaps even as she might wish, I’m just not terribly concerned. I certainly agree with our host that clear writing from the Supreme Court is important! But it’s an absolute bit of balderdash to suggest that the same care ought to, or possibly could, have gone into the preparation on these questionaire responses as would go into an opinion of the Court. The latter would be polished, the product of reflection, and proof-read by multiple sets of eyes. I’d no more expect Ms. Miers’ questionaire to meet the same standards of polish than I’d expect her to, say, include a draft opinion comprehensively and masterfully reconciling the SCOTUS’ competing holdings in last Term’s establishment clause cases as part of her “application package” for the Senate Judiciary Committee!
(And if you want to know a dirty little secret, sometimes the Supreme Court’s opinions — especially when still in slip form — have mistakes in them too! Oh my! Misplaced commas, semicolons, and colons; bad citation form; and occasionally inapt words as well. We’re talking here of human endeavor, and that is, always and forever, imperfect.)
So those searching for reasons to hate this nominee can surely find more by flyspecking her punctuation or usage of lingo. Those, like me, who think that’s unproductive and unrealistic, won’t.
Beldar (239bd8) — 10/22/2005 @ 1:15 am…it’s an absolute bit of balderdash to suggest that the same care ought to, or possibly could, have gone into the preparation on these questionaire responses as would go into an opinion of the Court. ~ Beldar
Is it? Why shouldn’t she put great care into such a historic document? I just don’t buy that.
Actually, of course I’m no attorney, but I did read over her responses and what struck me the most about her answers is that some of them border on flippant. For example, on page 57, she is asked (I’m paraphrasing here): “Were most of your court appearances in civil or criminal proceeding? “ Her answer is simply “Almost all civil.” Is it too much trouble for Ms. Miers to answer the questions in complete sentences? She doesn’t seem to take the application seriously enough at times, so will she take the position seriously? Her lack of respect for the court should be grounds for an automatic rejection.
Tillman (1cf529) — 10/22/2005 @ 5:42 am” Beldar
With all due respect, Beldar’s analogy does not hold up here. Ms Miers is not merely trying to EXPLAIN the advice she was given as a City Council member, she is applying for the position of being the lawyer (or in this case, the judge) who is GIVING the advice. That’s what makes her error such a compelling indictment of her legitimacy as a SCOTUS candidate.
As far as this error being only a minor inaccuracy, I must respectfully disagree with Beldar there as well. Although I would be the first to acknowledge that we humans are a fallible, mistake-prone lot, the fact that the Supreme Court is filled with smart, detail-oriented law clerks who draft, polish, fact check and proofread opinions does not justify appointing judges who are (at best) careless with language and imprecise with their use of legal terms of art. And if Ms Miers does not know or care enough to have her SCOTUS application vetted by competent constitutional scholars, what rational basis do we have for assuming that she would adopt a higher standard once on the Court (where, presumably, she would be the “competent constitutional scholar” of record and would direct her law clerks accordingly)?
Finally, I would like to pose a question to Beldar and all those who feel that the same care should not or could not have gone into the preparation of Ms Miers’ questionaire responses as would go into an opinion of the Court. If YOU had to fill out an application in support of your own nomination to the SC, knowing it would be scrutinized and fact checked not only by the Senate, the media and the general public, but by the entire U.S. legal community as well, how many people would you have review, polish, proofread and fact check your application?
Jeannine (667328) — 10/22/2005 @ 11:29 amSCOTUS nominee Harriet Miers showcases her political pragmatism by avoiding a tough ideological choice at the McDonald's drive-thru window, 2
Miers: "I'm sorry, miss…? Is it too late to turn half those hamburgers into cheeseburgers? And while we're at it, better give me 3 small fries to go with the 3 large and the 3 supersized fries. As long as we&apo…
protein wisdom (c0db44) — 10/22/2005 @ 11:30 amHi Patterico: Actually, I have been reading your posts and it’s not that I don’t find your arguments interesting–if you read my sporadic Miers commentary you will find that I am not necessarily a supporter of hers, but I am a dedicated supporter of the President, and I’m not yet out on the ledge. What Antimedia and I are distressed over, and what I thought that Powerline exerpt spoke to, is the “shrill and harsh” tone that has permeated a great deal of anti-Miers commentary. I also agree with Antimedia it is a cause for concern particularly for those of us who spend a lot of time media “watchdogging” when we find ourselves embracing sources–particularly op-ed sources–we usually deplore because we find ourselves in agreement with them on a single issue. So I have no issue with your opposing Miers–as I said I have found your commentary interesting–but personally, I don’t think you need David Savage to do it effectively. Along those lines, the other thing we were discussing in the comments about which I do feel strongly (and this does not have to do with you) is the sudden lionization of Arlen Specter by some conservatives opposing Miers. Specter has shown himself willing to do just about anything (like cozy up to Chavez and Castro) in order to further his personal agenda, and a scant ten months ago many of these same people were strongly contesting his eligibility to be Judiciary Chairman. I don’t trust him now or ever and I think a very strong “consider the source” warning should be issued wherever he’s concerned.
Academic Elephant (72f1d6) — 10/22/2005 @ 12:12 pmBeldar:
And for what it’s worth (which isn’t much): “One person, one vote” has become the preferred and politically correct term of art, usually abbreviated OPOV. Were our host to have written “one man, one vote” on a judicial questionaire of his own, he’d be savaged by some for being sexist — unfairly, of course, but there you have it; criticism isn’t always fair, is it?
My main point of agreement with your comment is that this particular criticism isn’t worth much.
Let’s put aside the fact that plenty of people use the term “one man, one vote.” (It was used in the WaPo article quoting Sunstein, for example.) Let’s put aside the fact that I wouldn’t use that term in a questionnaire of this sort, what with the rampant P.C. out there. Let’s put aside the fact that nobody was confused by my use of the term, whereas lots of folks were confused by Miers’s use of the term “proportional representation.” And, let’s put aside the fact that the term “one person, one vote” isn’t technically more accurate, since it is overinclusive (children are people too) just as “one man, one vote” is underinclusive.
Ignore all that. Let’s assume that you are completely right that it was wrong for me to use that term in a blog post.
What have you proven? Exactly this: if my blog post were an application to be an Associate Justice to the U.S. Supreme Court (which it isn’t), and if I were to proofread each post the way I would proofread such an application (which I don’t) — then one could argue that I am not qualified to be a Supreme Court Justice (which, I agree, I’m not).
So what?
So yes, you’re absolutely right: this is not worth much as a criticism.
So why did you make it?
The answer is obvious. To devalue my criticism by attacking me. No other reason.
Still, I think it’s important to recognize that this isn’t an area of law in which she’s practiced.
She is clearly inexperienced in this area, it’s true — just as she is in so very many areas of law that come before the Court. I don’t see this as a positive thing. It may be “important to recognize,” but perhaps not for the reason you think.
But it’s an absolute bit of balderdash to suggest that the same care ought to, or possibly could, have gone into the preparation on these questionaire responses as would go into an opinion of the Court. The latter would be polished, the product of reflection, and proof-read by multiple sets of eyes.
I’ll tell you what’s an “absolute bit of balderdash,” Beldar. The line that the Administration has been trying to feed us that Ms. Miers is especially attentive to detail, and shows a manic obsessiveness about grammar, spelling, and punctuation.
Patterico (4e4b70) — 10/22/2005 @ 2:47 pm