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Miers responses to the questionnaire range from the pedestrian to the bad. She demonstrates almost no legal acuity, frequently gets things wrong (and that one was a doozy), and her writing style is simply atrocious.

That sort of thing would barely elicit a passing grade in an undergrad Con Law class - and that's giving her credit. The fact that she's a nominee for the Supreme Court honestly makes me want to perform a self-lobotomy with an electric drill.

God help us...

Ms Miers would have had advice on her answers before the questionnaire was submitted. Fred Thompson was the previous advocate. Is she being intentionally left to the wolves?

In addition to the questionnaire, she first made mistakes with who her favorite justice was; the 'apparent miscommunication' with Specter; and now AA.

If you are explaining, you are losing.

She revealed in a letter responding to the supplemental questionnaire that her law license was also suspended in 1989 in Texas for failure to pay dues.   She's had her license suspended TWICE.

I still oppose her nomination, but I'm starting to feel sorry for her.  She's clearly in over her head and the WH isn't doing her any favors along the way.  I hope she withdraws while she still has some dignity left.

of the presdient on this nomination, but even I have to admit this looks real bad.  

Soon after the nomination came out I posted this theory:

http://www.redstate.org/comments/2005/10/3/74558/9332/55#55

For those who don't want to read the whole thing, the theory is basically that Miers is a sacrificial lamb for the Dems and/or Republicans to tear apart before the real nominee is revealed.  That would be someone with a more demonstrably conservative judicial philosophy like Luttig or Estrada.  

Granted the sacrificial lamb would have to be in on the strategy  for it to be successful.  Some commented at the time that the president would be unwilling to throw his close friend Miers to the wolves like that.  However, is it possible that Ms. "You're the best governor ever!" Miers was more than eager to serve as the mutton chops?

I think to the degree that the embattled Bush Administration is standing behind this clearly errant pick is illustrative of the political peril which they find themselves in.

They are treating this like Custer's Last Stand - I hope the results aren't the same.

See, this is why RS has a profanity ban.  Cuz if there wasn't, my response would be something along the lines of: Son of a _, mother__, idiotic morons.

So I have to pause, think of something more eloquent to say.

Let's start with:

Withdraw this embarrassment and all can be forgiven as an aberration caused by bad hamburgers at the White House mess.

This is just absurd.  Even if she had stellar clerks she won't be able to save herself from complete embarrasment any time she asks questions from the bench or CJ Roberts makes the mistake of giving her the assignment of writing opinions.  I'm not even a lawyer and I could have told you there was no proportional representation requirement anywhere in the Constitution, even in its emanations and penumbras.

I watched almost every minute of the Roberts confirmation hearings and I was overawed at his brilliance.  If I can stomach watching hers I'm afraid I'll be shamed by her mediocrity.

normally the thought of having a lawyer in the particular doctrinal class take your law school exams for you is akin to great dream; ya' know, one where you don't want to wake up... BUT THIS, I would be having a nightmare at the thought of Harriet taking a conlaw exam for me... SCOTUS? I think not!  arrrrrrhhhh is right, yet another reason Ms. Miers is the wrong person for the wrong job at the wrong time...

You do have to feel sorry for her. The White House should have never, ever, ever put her in this position. She may be an able lawyer and a nice person, but she's not even close to Supreme Court material - and by putting her in that position the White House has subjected her to intense public scrutiny and they haven't seem to done enough homework to go to bat for her in anything resembling an effective manner.

I always used to defend the Bush Administration when the left accused them of being incompetent. This is the first time I've truly been inclined to agree. There's really no way to spin this nomination except that Bush wanted to nominate a friend, and the consequences be damned...

Miers is threatening to make Sen. Roman Hruska look like an elitist!

So the theory is, "Let's enrage our core supporters, make the President look like an imperious nepotist, and the administration look like bumbling incompetents, so we can change our mind later and nominate Luttig"?

No - it is exactly what it appears to be.  One thing our President is not: subtle.

Nevermind that it would be ineffective--if Republicans are seen as shooting the nomination down rather than Democrats (and there's no question they are), what stops Democrats from blithely filibustering a true conservative judge? The Miers nomination effectively took the Democrats off the defensive on judicial nominations--the rap was, Bush nominates qualified judges, and Democrats tear them down just for ideological reasons. Now neither of those is true.

Reynolds v. Sims?

Read here for the rundown.

While I have come to agree that this nomination was unfortunate and will likely fail or be withdrawn, I think you overstate your criticism, as do the Senators commenting.

I read the questionnaire.  While her experience is lighter than I'd hoped, I find it credible.  

Yes, she referred to "proportional representation" when she meant something else.  A clerk should have caught that. That it wasn't caught should concern you.  But, there is no reason to believe that she believes the Constitution requires "proportional representation" as that term is known.

In any event . . . . . . who cares if she was familiar with an election "term?"  It is not a legal term of art.  Her meaning was clear to the commentor (Sustein) from the context . . . he just condescendingly quibbled about terminology.

Now, if you want to ask her about something . . . ask how she could have argued that Disney had insufficient contacts with Texas to justify personal jurisdiction.    Unless that was an obscure Disney company unaffiliated with the theme park owner, the argument was ridiculous.  Personally, I think it appears to have been the type of argument put forward by lawyers for clients with deep pockets and a willingness to waste everyone's time until the opponent runs out of money.  I haven't read the decision, so I may be speaking too early . . . but that looks suspect.

But whether she uses the same terminology as you do . . . who cares?

Nevertheless, I think the nomination is doomed.

so I want to understand this fully.

I have read the 14th Amendment and found no proportional representation requirement.

I also looked up cases invloving violation of the 14th Amend. because of [dis]proportional representation.  Namely, Mobile v. Bolden, in which the SC overturned a trial court decision that was upheld by an appeals court, that the 14th had been violated.

Contained in the SC opinion regarding violation of the 14th amend. via disproportional representation, the opinion states that We have recognized, however, that such legislative apportionments could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities. See White v. Regester, supra; Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To prove such a purpose, it is not enough to show that the group allegedly discriminated against has not elected representatives in proportion to its numbers. White v. Regester, supra at 765-766; Whitcomb v. Chavis, 403 U.S. at 149-150.[emphasis mine]

Assuming I have read all of this correctly, Miers is indeed wrong.

You'd assume, if she had the full support of the WH, she's have access to all the resources of the WH to help craft these responses.

I heard that a number of the top people moved over to Justice with AGAG, but still, there's no excuse for not having someone who can catch obvious constitutional gaffes.  Heck, they didn't even have someone fix the misplaced commas.

I'm not averse to a theory that there is a secret plan in some quarters for her to fail, but it doesn't make sense that it would play out this way.  If a nomination is going down, you want it to happen in a quick and painless way, not in an protracted and embarassing manner.

I strongly applaud the profanity ban, and in cases like this resort to Elmer Fudd swearing -

"(&#)(&^)^&&^*&^"  

It's at least one or two degrees better than blank lines following the descriptor. It also as the advantage of allowing the reader to insert whatever grinding noises they prefer.

legal outcomes often turn on matters of terminology, the placement of a comma, the choice of "and" versus "or" and such.

For her own sake, I'm sorry she said one thing when she meant something else.  But if ever there were a job where it is important to say what you mean, it is that of Justice of the SCOTUS.

We have absolutely no reason to expect that she would be a clearer thinker or a more precise writer once she's on the job.  

I thought Reid and Leahy both recommended Miers to the President. Now Leahy does not like her answers. If Leahy mentioned Miers to the President as a possible nomination that would be accepted by DEMS he must be having second thoughts. Is his concern really over her answers or is he coming to the realization that:

1. Meirs is a religious conservative who supported a constitutional ban on abortions.  
   
   
2. She has a strong pro-business background
   
   
3. A long time friend of the President.  

Specter is mad at Miers for correcting him a few days ago, but that is Specter's fault for opening his mouth. Do we really think Miers would tell Specter one thing and hold back from the other Senators.

On November 7th we will find out if the nomination is dead or alive, but it will be interesting to see if Specter protects Miers the same way as Roberts was protected. Or will he let the Senators have their way with her.        

every word, every comma is scrutinized. First year law students even know this from day one.

The Equal Protection Clause.

I guess I learn something new every day.

is a strong cultural tie--that will be broken in this case. There is no way that she will be able to take the pressure. Not sure how the next candidate after Miers withdraws will do.

The timing of all this is setting up for a colossal crash if Miers bails and Rove and/or Libby and/or the Veep get indicted.

Let's not get carried away here. Half the motions practice in this country would be destroyed were that the case. A quarter of the opinions, too.

Thanks for mentioning this.

Folks might also want to look at Westbury v. Sanders (1964).  The definition of "proportional" representation has evolved since the Court entered the "thicket" that the Court in Colgrove v. Green (1946) refused to be drawn into.  Warren's Court did.  

Why?  Mostly not to save "urban" voters from "rural" dominated Malapportioned legislatures, but to save the Civil Rights campaign they had ushered in with Brown.  

The principle cases (from Tenn., Alabama., Fla.) were all from states where state senates (and the Tenn. House; dominated by the most fiercely segregationists political officeholders) were using their non-proportional legislative seats to thwart Civil Rights initiatives championed by urban (who frequently represented major black population concentrations) and "urbane" (like Warren) politicians.

Baker/Sanders/Simms destroyed much of the rural South's ability to curtail black civil rights.  That was their objective.  They did so using Equal Protection (and destroyed the theory of bi-cammeralism as historically practiced on the state level much to Justice's Harlan (Simms) and Frankfurter (Baker).  

To suggest that "proportional" issues are not in play in a Dallas "at large" civil rights suit seems to me highly unlikely.  At large, nested, and other methods were employed during Reconstruction and post Baker to manipulate black voter strength.  

This all looks like a game of gotcha for a term that has more historic than legal pedigree.  

Of course Reynolds was based on the Equal Protection Clause.

We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.

However, your original point remains quite valid, as Reynolds was not a proportional representation case, nor was it a Voting Rights Act case at all.

More to the point, saying that something was based upon the Equal Protection Clause does not mean that it exists within the clause. Roe v. Wade is not actually IN the ninth amendment - the fervent wishes of Arlen Specter notwithstanding.

The full quote from Miers was as follows:

While I was an at-large member of the Dallas City Council, I dealt with issues that involved constitutional questions. For instance, when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause.

As Leon says, there is scholarly debate regarding whether Section 2 of the Voting Rights act actually mandates proportional representation.  But even assuming it does, the source of that requirement is the Voting Rights Act, not the Constitution.

Reynolds and Wesberry both predate the Voting Rights Act, so obviously neither case addresses the issue of proportional representation under the Voting Rights Act.  Both cases merely stand for the proposition that legislative districts (federal in Wesberry, state in Reynolds) must be drawn to contain an equal number of persons, so that one Congressman or state representative does not represent 100,000 people while the representative next to him represents 1,000.

if this were actually the point at issue, which it's not, you would be picking a language nit.  If I were to write on a law school exam, "The Equal Protection Clause requires that legislative districts must each include the same number of citizens," I would not be marked down, even if technically it is merely the Reynolds decision which requires that under the authority of the Equal Protection Clause.

But Miers, in her answer, said she was talking about a Voting Rights Act claim, which is something completely different than the issue of same-sized legislative districts.  She wasn't talking about a Reynolds claim, so I'm not sure why it came up.

Their is nothing wrong with Miers answers. The dems are just going where the anti-miers personal attcaks w/o foundation allowed them to go.

Baker v. Carr is the guiding precedent legislative districting. I'm not a lawyer and don't know if this holds for the structure of a city council. However, here's the summary of Baker v. Carr at oyez.org:

Question Presented

Did the Supreme Court have jurisdiction over questions of legislative apportionment?

Conclusion

In an opinion which explored the nature of "political questions" and the appropriateness of Court action in them, the Court held that there were no such questions to be answered in this case and that legislative apportionment was a justiciable issue. In his opinion, Justice Brennan provided past examples in which the Court had intervened to correct constitutional violations in matters pertaining to state administration and the officers through whom state affairs are conducted. Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others raised in this case merited judicial evaluation.

Baker was the poster child for judicial activism.

Whya is there a questionaire?

This is why people who spend their life competing for a SCOTUS nominations (i.e. Roberts and Ginsburg) make sure they don't get involved with messy things like a city councils. It's a no win proposition. You get all involved with messy lawsuits where it's hard to explain your position in 2 sentences or less.

After reconstruction lots of Southern states (like TX) and a few northern ones (like IL) had fun with state congressional districts. If we have, say 2 million people and 100 congressional districts then each district should have 20,000 people. However there's nothing SPECIFICALLY in the constitution saying that. So some bright guys got the idea that putting 500,000 (mostly blacks) in one district and giving the other 99 districts just under 15,000 would be cool. At one point IL (one old home state of mine) had districts ranging from 10,000 people in Chicago to over 1 million (downstate).

In Gray vs Sanders and later Reynolds vs Sims the Supreme Court took a dim view of that type of districting (I think there were Alabama and Tennesee cases, but may be wrong). They said the representation had to be ....proportional (or somewhat so). Southern states lived under the rules of the Voting Rights act (that codified such proportionality) for years. Every southern state and most southern cities were continually being sued and negotiating with the feds through the 80's and well into the 90's on how to best implement VRA rules.

So, no, Miers wasn't longing for a European style proportional representation system. And people who weren't Southerners involved with the implementation of these rules don't remember how onerous they were. City councils were hamstrung on many fronts that were only casually related to voting due to these procedures. Undoubtedly Miers remembers the nightmare of such well meaning regulations, a memory that is missing from much of the court and the commentators jumping on this issue.

It gives the committee a basis from which to start her confirmation hearings - otherwise it'd be even more of a free-for-all then it already is.

Maybe the President insisted out of loyalty and believing she'd be more with us on conservative issues than many of us believe.  So, the brain went along with an exit strategy that if (and when) she faltered, that he could make the case to the President that he could win back the conservatives by moving right on the next pick and that the American public wouldn't want to see another nominee picked apart for political gain.

I was the editorial page editor in Port Arthur, Texas, during a Voting Rights Act lawsuit. We had the craziest city council setup imaginable, with single-district, multi-district at-large, and citywide at-large districts. The DOJ wouldn't even let us have an election for four years or so. Which was a shame, because just about everybody hated the mayor.

That equal protection answer is so unbelievably bad that it is unbelievable.  It's as if no one qualified is looking over her answers, which is next to impossible.  This almost feels intentional.  Is someone inside trying to sink this nomination?  Is such an answer supposed to provide an excuse for her withdrawal?  Or is just administration sloppiness and disregard for Congress?  This is really a bizarre episode.  Something has got to give here.  

Thanks.  Man are the knives out or what?  Let her get the hearings.  These legal scholars sure do like summary judgements.

Thanks.

My dissertation was on the reapportionment fight in Florida between 1945-1969 and your completely right.

It amazes me how quickly some of these folks are jumping on this, and how ignorantly.

I think she be beat you to the punch on the brain procedure (My bad!).  

My sense is that she really is a very good person, which should not be underestimated in terms of that influence on a group of nine lawyers spending their life together.  Con law books have been written about that sort of thing, and in fact Roberts might prefer, and have an easier time of making historic impact, with a cooperative Harriett, as opposed to another conservative intellectual stutter.  So, there really may have been some real wisdom to Bush's logic. But she... (it has all been said already).  

This is the third week I have said it now-- she will withdraw before the hearings... she can't enjoy this, and it will only get worse... much worse.  The timing may be impacted by waiting for Fitz to make his move.  The half hearted approach to the questionnaire may be an indication of capitulation, rather than just sloppiness.

Leon H,

No need to hat-tip the WA Post and Patterico, this very same information was posted by krempasky two days ago right here on the front page of RedState.

"Miers' Senate Questionaire - in HTML"

"you are" - I hate when I do that

Miers can win now, is to go in and BE BORK!! I hope she does. I hope she says Roe was obviously wrongly decided.

But she ought to be able to pull the Roberts-Ginsburg rule, as much as I loathe it myself. The umpire brilliance of Roberts may not be enough.

Bush should have consulted with some GOP senators (I know the leak problem and also that apparently Bush has not cultivated good relationships with his own senators, which is his fault) before this nomination, but the TOO personal attacks have opened the door to this crap for the Dems to now use.

help us lord

If the Dems are really the ones driving the knife here, then how come not a single Republican on the Judiciary Committee has spoken up to say, "Actually, those answers were just fine"?  There are some pretty solid conservatives on that committee!

In your analysis of ongoing events, you should leave just a tiny bit of room for the possibility that you may not be dealing with the second coming of Ed Meese here, let alone Robert Bork.  Maybe this isn't a hidden masterstroke by Bush after all.

http://www.nationalreview.com/york/york200510201613.asp

It's just a matter of timing and strategy as to her withdrawl

I do hope you're right about this being strategy regarding the Fitz probe. Although, this has made Bush look incalculably bad.

"There are some pretty solid conservatives on that committee!"

Yes, and some very shrewd Democrats, most of whom, from both camps have survived to this level by knowing when to risk or spend political capital and when to wait on events.  

Right now, given the range of reaction from the base, there is no reason for a Rep. Senator to stake anything on Miers at this time.  She is the President's to save until she saves/or kills herself at the hearings.

My contention is that too much conclusion about Miers is being spun from too few threads.  Like Gamecock, I agree, that most of this is due to the failure of Bush to anticipate the probable reaction to a "super stealth" like Miers.

I know for a fact that Rush and Hannity read redstate. Hopefully influential and well respected talk show hosts like yourselves will read this thread and do what it is obvious... Which is to go public on your radio programs to let America know that Harriet Miers is not the right choice. I have nothing against the lady, I'm sure she is trying her best, but she clearly is in over her head and is not qualified for the job.

If Rush, Hannity, and others in the media get the word out, it might not be too late to salvage the supreme court from mediocrity.

I have never seen a nominee's responses to anything - written or oral - described as "insulting". It is usually the Senators' questions that are insulting to the nominee.

Based on what we've seen so far from Meiers, and what we know about Spector -- like him or not, the man is a force of nature when it comes to the conjunction of politics and the law -- it's very hard for me to believe that the Meiers account of their meeting is more likely to be accurate.

on the Miers nomination. Does anyone believe that if the judicial filibuster had been eliminated, that Miers would have been this pick? NO WAY!

The seven fence-sitting Republicans carry much of the burden of this quagmire. I don't hear McCain or Graham voicing there strong support of this pick, and they are the reason for this mess

flee

http://washingtontimes.com/national/20051020-083137-7609r.htm

Not a smart move considering she needs to win over Senators.  If she can't handle one on one meetings there is a zero chance she survives the hearings.   I think a withdrawal is coming soon.

After reading this at Powerline I felt a lot better:

http://powerlineblog.com/archives/012006.php

Of course, Miers is apparently rather inarticulate, but that isn't a deal breaker for me.  I know too many brillant inarticulate people.

At least that is what John at Powerlin says:

http://powerlineblog.com/archives/012006.php

I guess people leaped to the conclusion that she meant the Voters Right because that is the most common usage of the phrase "propotional representation"

Reminds me of my friend who, while in college, had a major disagreement with his math professor over the meaning of the word "evaluate"

Whether the Equal Protection Clause requires proportional representation in specific contexts is not an issue addressed a length in a constitutional law class.  The mistake is evidence that she simply does not have expertise in these areas.  However, it speaks volumes that Miers did not have her handlers vet her answers to these questions.... the Bush administration is not helping her.    

We have waited for the facts.  Miers has begun answering the Senate's questions in written form, in the process the Judiciary Committee uses to prepare for the official hearings, and we are now responding to the information this process is yielding.

So far, her answers are not convincing, so I'm inches from ending my neutrality on her appointment.

I think maybe the jun has been gumped a little on this one...

I am a civil litigator, and I can immediately identify the tone of the answers - and indeed of the questions. These items sound precisely like interrogatories and answers to interrogatories that would be submitted between parties in a civil case. The questions demand detail and specificity, and the answers parry with bland generalizations and vagueness. Then, often, the parties appear before a judge, who has to decide whether the answers need to be sharpened a bit.

My husband was involved in a court case and the judge got mixed up as to which party was the petitioner and which party was the respondent and ruled the wrong direction.

Following a personal letter, he let our lawyer know that he had made a mistake and asked our lawyer to send him a motion to set aside the ruling so he could do it over.  But I guess he got the comma in the right place.

with the questionnaire? Hmm, sounds like she let GW fill it in for her to me.

That would be on his level of understanding as far as the constitution goes anyway.

Maybe he picked Miers because she IS on his level.

http://www.ThingsThatJustPissMeOff.blogspot.com

to see Bork's and Robert's et al's anwers to the same prefunctory questions. Its called piling on and the repubs on that committee are, still, politicians,ie timid wet finger in the wind spineless ... and are not acquitting themselves well as honest gentlemen, nor did Alberto Gonzales when offered the opportunity to disagree with Spector.

I don't think there is but one Bork, but the answers to these questions certainly are not relevant as to how close Miers is to a Bork.

I do know that if Miers goes in to the hearing under attack for her anti-abortion views and further elaborates on her originalist judicial  philosophy as enunciated in her statement at her announcement, in the answers on the questionaire, and as reflected in the app ct judges she helped Bush pick, then the GOP senators will lose my respect more than Miers ever will.

If the right wants a fight over whether Roe was correctly decided and whether the originalist philosphy in the ONLY proper one to follow, then they have a canadidate here that fills the bill.