Critical Mistakes

The debate on the nomination of Harriet Miers to the United States Supreme Court has hit a new low today, with critics on the left and right showing stunning incapacity to be even slightly fair.  From Captains Quarters, apparently quoting from the Washington Post:

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.

Perhaps Miers' critics should acquaint themselves with the "One Man One Vote" jurisprudence of the Equal Protection clause (Gray v. Sanders, 1963, and Reynolds v. Sims, 1964 -- the Court rejected Alabama's plan to apportion one house of its legislature by county, and the other "by the 'equal proportions' method").  According to this jurisprudence, the Equal Protection clause requires proportional representation (representation by enumeration) in all houses of a State's legislature despite the non-proportional nature of the U.S. Senate.  Reynolds was an absurd ruling, but if we are to take Bush v. Gore as a sign (and we must, since Justice Kennedy was explicit about the source of the Equal Protection issue in that case), there are at least eight members of the present Court who are unwilling at this time to reverse the precedent.  Stare Decisis reigns.

But perhaps we have a semantic misunderstanding, with some people thinking of "proportional representation" as representation by racial enumeration.  There is a third interpretation (which Ed at Captain's Quarters notes), a "proportional representation" system which contrasts to the usual "winner take all" system of elections in America.  Under that system, representatives are determined proportionally by the percentage of the vote received by their parties.  This is the system commonly used in Europe.

Update: I have refined and expanded my comments.  Also, welcome to Captain's Quarters readers.

Update II: I may have been a bit unfair to some of the critics, ironically in much the same way they were being unfair to Ms. Miers.  Of course Prof. Sunstein did recognize that Miers was referring to the One Man One Vote jurisprudence of the Equal Protection clause, but since she didn't invoke the standard academic terms (but rather a variation on a phrase actually found in one of the Apportionment rulings), he (Sunstein) assumed – falsely, I think – that she didn't know what she was talking about.  This is a common academic problem.  A friend of mine, who has a PhD (Piled higher and Deeper) in Philosophy regularly misunderstands points I (and others) make because he is hung up on jargon, academic usage, and connotation.  The real world, wherein "the rubber meets the road" and people have to apply the theory, waits outside.

Unfortunately for Ms. Miers, we are proposing to send her back inside.  It is a very good thing that she has spent so much time in the real world; she's less likely to drink the Kool Aid they gave to Souter and Kennedy.  And not being a lifetime politician, she's also unlikely to go the way of Earl Warren.

Update III: No, Ed, this does not mean that you can let Lani Guinier off the hook.  She was actually proposing racial representation.

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On a parallel subject: Senator Specter expressed, today, his confidence that he did not misunderstand Miers' discussion of Griswold v. Connecticut, in which he'd thought she agreed with the ruling.  Miers says she made no such representation, and I must say that no one who has actually read Griswold could honestly agree with it as a matter of constitutional interpretation. 

Experience suggests that Specter almost certainly did misunderstand.  Take a look at the transcript of the Bork hearings, of Specter's questions to Judge Bork and Bork's answers, and ask yourself if Specter is actually hearing what the nominee is saying.  Ask yourself, further, whether Specter is looking for scholarship and proper judicial temperament, or rather a particular (political) result.  I wonder, frequently, how we let this guy on our team.

Comments

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For all of the grief we gave GWHB for Souter, who gave us Thomas? Sometimes the best we can expect is 50% success.