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October 20, 2005
Still Stumbling Towards SCOTUS (Proportionally Updated!)

The Harriet Miers nomination and political support campaign continued its clumsy path yesterday, with her questionnaire responses receiving failing grades from Judiciary Committee members of both parties. Chair Arlen Specter and ranking Democrat Pat Leahy held a press conference yesterday to castigate the effort as at best incomplete, and at worst an insult to their intelligence:

The top two members of the Senate Judiciary Committee yesterday complained about the written responses they received from Supreme Court nominee Harriet Miers this week, and warned her to expect tough questions from Republicans and Democrats alike when her confirmation hearing begins Nov. 7.

Barely concealing their irritation during a 35-minute news conference at the Capitol, Chairman Arlen Specter (R-Pa.) and ranking Democrat Patrick J. Leahy (Vt.) called the lobbying on Miers's behalf "chaotic," and said the answers she provided Monday to a lengthy questionnaire were inadequate. "The comments I have heard range from incomplete to insulting," Leahy said.

Specter clarified "chaotic" as an adjective applied to the lobbying coming from sources other than the White House, presumably the more grass-roots efforts coming from the blogs and political action groups. That reflects the nature of the opposition and support of this particular nominee, I would think. The conservatives have fractured on Miers, and that means people who would normally have united and tried speaking with one voice have instead resorted to trying to shout each other down.

It isn't the entire story, however, as Specter once again insisted that he didn't misinterpret what Miers said to him about Griswold, while the Post thinks that Miers misinterprets other important court precedents:

Specter said he remained perplexed by a disagreement Monday stemming from his meeting with Miers in his office, after which their accounts differed on what the nominee had said about Supreme Court rulings that preceded Roe .

In dealing with 11 Supreme Court nominees, Specter said, "I've never walked out of a room and had a disagreement as to what was said." He smiled politely as Leahy said, "I've never known him to make a mistake on what he heard."

Meanwhile, several 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.

If true, that hardly instills confidence in Miers' ability to debate this case and others in front of the Judiciary Committee.

UPDATE: Let me explain a bit further, adn explain why Patterico's on a ledge waiting to jump. Anyone who thinks that the Constitution has a requirement for proportional representation has spent little time in its study. Proportional representation is a results-based notion, similar to comparable worth, that guarantees an end result to elections. For instance, if a population has a polka-dotted demographic of 25%, it would reserve 25% of the seats on a city council or state legislature for pollka-dotted people, regardless of the actual vote counts.

Proportional representation comes up once every ten years as a way to right the wrongs of discrimination, either race-based or gender-based -- and in fact, it echoed through this particular Supreme Court nomination in the general insistence that Sandra Day O'Connor's replacement had to be a woman. Local communities tend to consider this more often than anyone proposes it for a state or national solution. It's not unconstitutional in theory, but it certainly has no constitutional mandate.

For Harriet Miers to make that kind of mistake when talking about her work on Constitutional theory is a jaw-dropping mistake. CQ commenter Corrie asks why I'm holding Miers to a super-Roberts standard, but anyone who has paid attention to politics over the past twenty years should know the difference, let alone an attorney who claims to have worked on constitutional issues. Only two possibilities exist for this kind of error: sloppiness, which for this document should be inexcusable, or flat-out ignorance, which should scare the hell out of everyone coming from a Supreme Court nominee. I'd sure like someone to give me a third option that will make me feel better. Beldar?

Meanwhile, I'm finding myself climbing out on the ledge with Patterico. Move over, pal, and pass the coffee.

UPDATE II: Mike at Presto Agitato wants to talk Patterico and I off the ledge. Perhaps we're talking about two different issues with remarkably similar names, but I'm still not quite convinced. I'd like to see a link to a description of what Mike means so I can read it myself.

UPDATE III: Here's Mt. Holyoke on proportional representation:

Proportional representation -- sometimes also called "full representation" -- is the voting system used in most Western democracies and is widely considered to be fairer and more democratic than the current U.S. system. In the United States, interest in this electoral reform has been growing rapidly, fueled by Americans' frustration with our traditional winner-take-all elections.

Or here:

The basic approach of proportional representation is simple: legislators are elected in multimember districts instead of single-member districts, and the number of seats that a party wins in an election is proportional to the amount of its support among voters. So if you have a 10-member district and the Republicans win 50% of the vote, they receive five of the ten seats. If the Democrats win 30% of the vote, they get three seats; and if a third party gets 20% of the vote, they win two seats. Electoral system designers have devised several ways to achieve these proportional results, and so there are three basic kinds of PR described below: party list, mixed-member, and single-transferable vote (also called choice voting).

These PR systems were devised to solve the many problems caused by plurality-majority voting systems. As a rule, PR voting systems provide more accurate representation of parties, better representation for political and racial minorities, fewer wasted votes, higher levels of voter turnout, better representation of women, greater likelihood of majority rule, and little opportunity for gerrymandering.

Think Iraq, for instance. This also has been advanced as a way to demolish the American two-party system.

UPDATE IV: John at Power Line talks everyone in off the ledge:

But I now realize that I was reading too much into Miers's sentence. Left-wing law professor Cass Sunstein is, for once, right. All Miers meant was that the City Council, in trying to draw districts in compliance with the Voting Rights Act, had to take into account the one-man-one-vote rule that has been held to be mandated by the Equal Protection Clause. In other words, the districts had to be of roughly equal size so that each voter's ballot counted about the same.

Thus understood, the criticism of Miers is (not for the first time) far out of proportion to the offense. The meaning she gives to the phrase "proportional representation" isn't the usual one, but it is perfectly logical. Read in this way, there is nothing at all wrong with what Miers wrote. The Equal Protection Clause has indeed been held to require that voters be "proportionally represented," i.e., that some citizens' votes not be diluted by being part of a disproportionately large district.

All of which suggests, I think, two things: first, people shouldn't be so quick to jump to the conclusion that Miers is an idiot. Let's let her speak for herself at her confirmation hearing. And, second: Patterico, you can come in off that ledge.

Does that mean we rushed to judgment with Lani Guinier, too? I still think this falls into the inexcusably inarticulate category. A significant part of being a Supreme Court justice is the ability to clearly write one's opinions. Using the phrase "proportional representation" leaves one with two options for interpretation, and one of them has a much more recent and negative application. Why would we have assumed she meant the other?

It's sloppy writing for what was essentially an application for a position which requires precision and clarity. It doesn't bode well for her confirmation hearing. However, I'll climb off the ledge, while keeping the window open.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at October 20, 2005 6:54 AM

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