Harriet Miers’ responses to the Senate questionaire are being parsed and torn apart. After seeing this, I would be really surprised if she makes it through the confirmation hearings, but I’ve been surprised before with politics (such as when Bill Clinton made it through eight years in office).

In answer to question 22 (Page 49) asking her for examples of constitutional cases she had dealt with in the past, Miers answered the following:

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.

But the Washington Post has an article that says:

“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.

So sure, anyone can slip up in a conversation, but a mistake of this magnitude on a questionaire submitted by Congress in preparation for hearings for a nomination to the Supreme Court does not bode well for Ms. Miers perceived intellect or grasp of Constitutional law.

Vic Fleischer, a friend of Prof Bainbridge, says:

I’m sort of amazed this woman made it through a clerkship. The most desperate cries for the red pen: “An example, of this distinction …” (delete the comma!), “position, we were against flag burning” (semi-colon or period, not comma), “requirements, as well” (awk).

… The problem goes beyond misplaced commas. Her answer sounds like that of an earnest (but not overly bright) high school student writing a practice essay for the SAT. “The Council was free to state its policy position, we were against flag burning.” Hmmm. Did the Council state its policy position, or did it enact a statute? Did the Council itself have an obligation to consider whether the ban was constitutional? If not, why not? Should the Council just enact whatever it wants, constitutional or not, and wait for the courts to knock it down?

And Christine Hurt makes the same point I do above:

… everyone makes typos/spelling errors. However, most of us catch them before we hand them to the Senate in our application for one of the most powerful positions in the country, which is the most powerful in the world.

Here is some general information on the fourteenth ammendment that may provide context for the non-lawyer like myself.

It is interesting that in Davis v. Bandemer (1986), the court wrote the following majority and minority opinions. (Emphasis mine)

JUSTICE WHITE, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN, concluded in Parts III and IV that the District Court erred in holding that appellees had alleged and proved a violation of the Equal Protection Clause.

(a) A threshold showing of discriminatory vote dilution is required for a prima facie case of an equal protection violation. The District Court’s findings of an adverse effect on appellees do not surmount this threshold requirement. The mere fact that an apportionment scheme makes it more difficult for a particular group in a particular district to elect representatives of its choice does not render that scheme unconstitutional. A group’s electoral power is not unconstitutionally diminished by the fact that an apportionment scheme makes winning elections more difficult, and a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause. As with individual districts, where unconstitutional vote dilution is alleged in the form of statewide political gerrymandering, as here, the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination. Without specific supporting evidence, a court cannot presume in such a case that those who are elected will disregard the disproportionally underrepresented group. Rather, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole. The District Court’s apparent holding that any interference with an opportunity to elect a representative of one’s choice would be sufficient to allege or prove an equal protection violation, unless justified by some acceptable state interest, in addition to being contrary to the above-described conception of an unconstitutional political gerrymander, would invite attack on all or almost all reapportionment statutes.

(b) Relying on a single election to prove unconstitutional discrimination, as the District Court did, is unsatisfactory. Without finding that because of the 1981 reapportionment the Democrats could not in one of the next few elections secure a sufficient vote to take control of the legislature, that the reapportionment would consign the Democrats to a minority status in the legislature throughout the 1980’s, or that they would have no hope of doing any better in the reapportionment based on the 1990 census, the District Court erred in concluding that the 1981 reapportionment violated the Equal Protection Clause. Simply showing that there are multimember districts and that those districts are constructed so as to be safely Republican or Democratic in no way bolsters the contention that there has been a statewide discrimination against Democratic voters.

(c) The view that intentional drawing of district boundaries for partisan ends and for no other reason violates the Equal Protection Clause would allow a constitutional violation to be found where the only proven effect on a political party’s electoral power was disproportionate results in one election (possibly two elections), and would invite judicial interference in legislative districting whenever a political party suffers at the polls. Even if a state legislature redistricts with the specific intention of disadvantaging one political party’s election prospects, there has been no unconstitutional violation against members of that party unless the redistricting does in fact disadvantage it at the polls. As noted, a mere lack of proportionate results in one election cannot suffice in this regard.

JUSTICE O’CONNOR, joined by THE CHIEF JUSTICE and JUSTICE REHNQUIST, concluding that the partisan gerrymandering claims of major political parties raise a nonjusticiable political question, would reverse the District Court’s judgment on the grounds that appellees’ claim is nonjusticiable. The Equal Protection Clause does not supply judicially manageable standards for resolving purely political gerrymandering claims, and does not confer group rights to an equal share of political power. Racial gerrymandering claims are justiciable because of the greater warrant the Equal Protection Clause gives the federal courts to intervene for protection against racial discrimination, and because of the stronger nexus between individual rights and group interests that is present in the case of a discrete and insular racial group. But members of the major political parties cannot claim that they are vulnerable to exclusion from the political process, and it has not been established that there is a need or a constitutional basis for judicial intervention to resolve political gerrymandering claims. The costs of judicial intervention will be severe, and such intervention requires courts to make policy choices that are not of a kind suited for judicial discretion. Nor is there any clear stopping point to prevent the gradual evolution of a requirement of roughly proportional representation for every cohesive political group. Accordingly, political gerrymandering claims present a nonjusticiable political question.

UPDATE: Patterico is out on the window ledge today.

It sure sounds like she is saying that the Equal Protection Clause requires that members of protected classes be represented on legislative bodies in numbers corresponding to their proportion in the general population. If that is indeed what she is saying, it is just stunningly wrong.

If you have a plausible alternate explanation of her comment in the context of Section 2, please let me know. But please: whisper when you do it. That window ledge is mighty narrow, and you don’t want to startle me.

But A.W. of FreeSpeech.com comments on Patterico’s comments:

I don’t agree at all about this. To my reading, she seems to regard the issue of the Voting Rights Act (VRA) and proportional rights to be two different issues. She seems to be saying, more or less, that as they addressed the concerns raised by the VRA, she had to make sure they didn’t violate the constituiton, either.

And to me, I don’t see any reason to think she is talking about racial gerrymandering or any similar issue when talking about proportional representation. It does reveal that she apparently is not inundated with the code words that they teach us for these concepts in law reviews, and in Ivy League law schools. But contrary to what Sustein says, the one-person-one-vote principle is PRECISELY a requirement of proportional representation. The fact that the Lani Guinier crowd uses it as a code term for racial proportionality doesn’t mean Miers is talking about that.

Mind you, I am not a blind Miers defender. I am more “wait and see” but at the moment I don’t support this nomination. I want the best for this Court, and I am not even close to being convinced she is the best. And I would favor them asking her to decipher this comment if only to quiet your concerns. But I think you’re wrong here. She has not made a clear error, contrary to what you say, except maybe in failing to use the accepted code words.

The New York Times slams (via OTB):

But her responses were so unimpressive that the top Republican and Democrat on that committee took the extraordinary step yesterday of instructing her to give it another try, this time with more “particularity and precision.” She thus became perhaps the most important judicial nominee in history to be offered what amounts to a do-over on a take-home quiz.