Miers Doesn’t Know Shit About Con Law

Ken AshfordConstitution, Supreme CourtLeave a Comment

I browsed through the Harriet Miers questionnaire submitted to Congress yesterday evening, pausing only to read matters that were interesting.

I spotted this question:

17. Constitutional Issues: Please describe in detail any cases or matters you addressed as an attorney or public official which involved constitutional questions. For each case or matter, please describe in detail the constitutional issue you dealt with, the context in which you dealt with it, and the substance of any positions you took related to that issue.

And here was part of her answer:

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.

Now, many of you are going to have to trust me on this: there is no proportional representation requirement in the Equal Protection Clause!  Furthermore, no court has ever required a proportional representation requirement pursuant to the EP Clause.

"Proportional representation" is a concept that says that elected officials must be comprised of the same features as their constituents.  For example, a 10-member city council with proportional representation — in a city which is 20% Hispanic — would have 2 Hispanic seats.   Virtuous as that my or may not be, the Constitution simply does not require this.

So what the hell was Miers talking about?

UPDATEThis explains it, I guess:

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.

Still, confusing these two concepts is the type of mistake that a law student might make, and not a very good law student at that.  It speaks volumes about Miers’ lack of qualifications.

UPDATE: Conservative top-tier groupblogger Leon H of RedState enters the fray with an "Aaaaaaarrrrrgh!":

I know that I’ve promised to stay out of this fray, but this is really a bit much. Leaving aside the question of whether mandatory representation by ethnicity (read: quotas) is a good idea, or a conservative idea, or the hallmark of a conservative judge – to claim in a written response that it is mandated by the Equal Protection Clause is just… just… well, as [constitutional law professor] Patterico says, it’s stunningly wrong.