Dispatches from the Creation Wars

Miers’ Ignorance of Constitutional Law

Posted by Ed Brayton on October 22, 2005
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This just keeps getting worse and worse for the White House. The questionnaire that Harriet Miers filled out was so bad that they sent it back to have her redo her answers. How bad was it? The LA Times reports:

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 many constitutional experts shaking their heads.

At one point, Miers described her service on the Dallas City Council in 1989. When the city was sued on allegations that it violated 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 the Constitution’s guarantee of “equal protection of the laws” does not mean that city councils or state legislatures must have the same proportion of blacks, Latinos and Asians as the voting population.

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

Yikes. I’ve never been to law school and I could have corrected that answer before sending it out. I think this nomination is doomed. The White House will withdraw her name within two weeks and, I hope, replace her with someone far more competent.

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Comments

  1. #1 Dan
    October 22, 2005

    Wow.

    This raises a couple of questions. First, might she have been referring to one-person, one-vote? Not that there’s really any excuse for confusing that with proportionate representation, but you know, representation is sort of the same thing, kinda, as districting. At least they both have to do with elections…right?

    Second, even if the answer to no. 1 is yes…WOW! Didn’t the White House have someone review her answers? Or better yet, write the answers for her?

    I think this nomination is doomed. The White House will withdraw her name within two weeks…

    Nah. Double or nothing on our lunch (or is it dinner?) bet? No way does Bush admit defeat like that. The only way it happens is if she “asks” that her nomination be withdrawn to save the President any further embarrassment. But I don’t even see that as likely. After all, he was the bestest Governor, like, ever, so how could he make a mistake in nominating her?

  2. #2 Ed Brayton
    October 22, 2005

    Dan wrote:

    Double or nothing on our lunch (or is it dinner?) bet? No way does Bush admit defeat like that. The only way it happens is if she “asks” that her nomination be withdrawn to save the President any further embarrassment. But I don’t even see that as likely. After all, he was the bestest Governor, like, ever, so how could he make a mistake in nominating her?

    Oh, I’m sure it’ll go down that way. I think they’re going to realize they’ve got to withdraw her and, being the loyal foot soldier that she is, she’ll say it was her choice to do so. That’s my prediction. And I’ll happily go double or nothing on it. :)

  3. #3 Doctor_Gonzo
    October 22, 2005

    I still say it’s 50-50 that the right wing-nuts start circling the wagons around Miers in the next week or week and a half. The failure of this nomination, especially with the slow neutering of Tom “Bush’s Bulldog” DeLay now underway, would put this administration on ice for an extended period of time.

    The really interesting thing about the nomination is that it may stand or fall on the outcome of Pat Fitzgerald’s investigation. Everyone seems to think that some high-level indictments are on the way. If they reach into the Vice Presidential staff, or suggest that Cheney himself played a role (though I think it probably goes without saying that he won’t be indicted himself), few Republican politicians are going to want to keep their wagons hitched to the White House on the matter of a highly questionable Supreme Court nomination.

    If no indictments come, on the other hand, I expect that the vaunted GOP discipline will be back in play.

  4. #4 Ed
    October 23, 2005

    Among other difficulties I see, the appointment of Dan Coates to get her through the process. The traditional go-to guys on this stuff were Clark Clifford, now dead, and Tom Korologos. I’m not sure if Korologos is retired or not, but he seemed to have the golden touch on nominations. Former Sen. Fred Thompson did the work for Judge John Roberts.

    Among other things these guys do is read the answers to the questionnaires to see whether the candidate has answered in a way that may raise the ire of Judiciary Committee members or, perhaps more important, staffers of the committee members.

    Thompson was a real legislative player, a staffer on the Watergate Committee way back when, a Tennesseean with great mentors in Howard Baker and others. Coates was much more an indeologue than Thompson.

    There are times when people in these processes need to be concerned with good government, and not ideology. A Supreme Court nomination is one of those times.

    The fumbling of this nomination goes deep into the dysfunctions of the administration.

  5. #5 spyder
    October 23, 2005

    Fred Thompson has “street cred” with the ever mindful celebrity status of Senators; he has been a card carrying member of the Screen Actors Guild (a GOP heavy in a major Union) for a long time. But even he would find Miers too difficult.

    I listened to the CSPAN interview with Spector and Schumer discussing the questionaire. They were seriously disappointed in all of her responses, suggesting that they, and other Senators on the Judiciary committee, were deeply insulted by them. I have to go with Ed’s side of the bet here, and late news yesterday out of the Capitol had conservative pundit type leadership admitting they had been contacted by White House operatives regarding how best to handle her withdrawl as a nominee. Maybe they should just have asked Ed.

  6. #6 spyder
    October 23, 2005

    This latest news seems to suggest that this may be her last week as the nominee! In the spirit of those that were forced to withdraw because they didn’t pay the proper taxes for their maids and nannys.

    Miers’s Integrity In Question

    When President Bush announced the nomination of Harriet Miers on October 3, he called her “a leader of unquestioned integrity.” Much of what we’ve learned since then hasn’t supported Bush’s claim. To review:

    – Miers was suspended from the DC bar for non-payment of dues.

    – Miers was suspended from the Texas bar for non-payment of dues.

    – Miers repeatedly had tax liens placed on property she owned in Texas for non-payment of fines and fees.

    – Miers received 10 times the market value for a small piece of land she controlled from the state of Texas, awarded by a panel stacked with friends and allies. A mediator ordered Miers to repay $26,000 but she has failed to do so.

    These incidents take on added significant because – since Miers doesn’t have any judicial experience – Bush is selling Miers’s nomination to the court, in large part, on her “character.”