24 October 2005

Miers' homework returned

Miers' Answer Raises Questions... By David G. Savage

Legal experts find a misuse of terms in her Senate questionnaire 'terrible' and 'shocking.'

Asked to describe the constitutional issues she had worked on during her legal career, Supreme Court nominee Harriet E. Miers had relatively little to say on the questionnaire she sent to the Senate this week.

And what she did say left many constitutional experts shaking their heads.

At one point, Miers described her service on the Dallas City Council in 1989. When the city was sued on allegations that it violated the Voting Rights Act, she said, "the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause."

But the Supreme Court repeatedly has said the Constitution's guarantee of "equal protection of the laws" does not mean that city councils or state legislatures must have the same proportion of blacks, Latinos and Asians as the voting population.

"That's a terrible answer. There is no proportional representation requirement under the equal protection clause," said New York University law professor Burt Neuborne, a voting rights expert. "If a first-year law student wrote that and submitted it in class, I would send it back and say it was unacceptable."

Stanford law professor Pamela Karlan said she was surprised the White House did not check Miers' questionnaire before sending it to the Senate.

"Are they trying to set her up? Any halfway competent junior lawyer could have checked the questionnaire and said it cannot go out like that. I find it shocking," she said.

In the 1960s, the Supreme Court adopted the "one person, one vote" concept as a rule under the equal protection clause. Previously, rural districts with few voters often had the same clout in legislatures as heavily populated urban districts. Afterward, their clout was equal to the number of voters they represented. But voting rights experts do not describe this rule as "proportional representation," which has a specific, different meaning.

"Either Miers misunderstood what the equal protection clause requires, or she was using loose language to say something about compliance with the one-person, one-vote rule," said Richard L. Hasen, a professor at Loyola Law School in Los Angeles who specializes in election law. "Either way, it is very sloppy and unnecessary. Someone should have caught that."

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