Legal Scholars Puzzled By Mier's Equal Protection Response

[Nbadan]

When 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 some constitutional experts shaking their heads.

At one point, Miers described her service on the Dallas City Council in 1989. When the city was sued for violating 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 that the Constitution's guarantee of the "equal protection of the laws" does not mean that city councils or state legislatures must have enough minority members to match the proportion of blacks, Hispanics and Asians in the voting population.

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

LA Times (http://www.latimes.com/news/nationworld/nation/la-na-miers22oct22,0,1244386.story?coll=la-home-headlines)

But, but... "She has DEEP knowledge of constitutional law"!!


White House spokesman Scott McClellan said "she has deep knowledge of the Constitution and constitutional law." President Bush has said that in her role as White House counsel, she "addresses complex matters of constitutional law." ...

[Phil E.Buster]

I wonder who will be the replacement nominee?

[boutons]

A conservative pisses on dubya/Miers.

Some think the only ass-saving exit is for Miers to withdraw, nominate someone with at least a snowball's chance in hell.

Good ol' dubya, nary a clue as to what's goin on. Keep on disrespecting the office of the President and the federal govt by nominating incompetent hacks, dubya sycohpants, cronies, political operatives.

=========================

washingtonpost.com

Defending The Indefensible

By George F. Will

Sunday, October 23, 2005; B07

Such is the perfect perversity of the nomination of Harriet Miers that it discredits, and even degrades, all who toil at justifying it. Many of their justifications cannot be dignified as arguments. Of those that can be, some reveal a deficit of constitutional understanding commensurate with that which it is, unfortunately, reasonable to impute to Miers. Other arguments betray a gross misunderstanding of conservatism on the part of persons masquerading as its defenders.

Miers's advocates, sensing the poverty of other possibilities, began by cynically calling her critics sexist snobs who disdain women with less than Ivy League degrees. Her advocates certainly know that her critics revere Margaret Thatcher almost as much as they revere the memory of the president who was educated at Eureka College.

Next, Miers's advocates managed, remarkably, to organize injurious testimonials. Sensible people cringed when one of the former Texas Supreme Court justices summoned to the White House offered this reason for putting her on the nation's highest tribunal: "I can vouch for her ability to analyze and to strategize." Another said: "When we were on the lottery commission together, a lot of the problems that we had there were legal in nature. And she was just very, very insistent that we always get all the facts together."

Miers's advocates tried the incense defense: Miers is pious. But that is irrelevant to her aptitude for constitutional reasoning. The crude people who crudely invoked it probably were sending a crude signal to conservatives who, the invokers evidently believe, are so crudely obsessed with abortion that they have an anti-constitutional willingness to overturn Roe v. Wade with an unreasoned act of judicial willfulness as raw as the 1973 decision itself.

In their unseemly eagerness to assure Miers's conservative detractors that she will reach the "right" results, her advocates betray complete incomprehension of this: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result. Indeed, in an important sense, the path that the Supreme Court takes to the result often is the result.

As Miers's confirmation hearings draw near, her advocates will make an argument that is always false but that they, especially, must make, considering the unusual nature of their nominee. The argument is that it is somehow inappropriate for senators to ask a nominee -- a nominee for a lifetime position making unappealable decisions of enormous social impact -- searching questions about specific Supreme Court decisions and the principles of constitutional law that these decisions have propelled into America's present and future.

To that argument, the obvious and sufficient refutation is: Why, then, have hearings? What, then, remains of the Senate's constitutional role in consenting to nominees?

It is not merely permissible, it is imperative that senators give Miers ample opportunity to refute skeptics by demonstrating her analytic powers and jurisprudential inclinations by discussing recent cases concerning, for example, the scope of federal power under the commerce clause, the compatibility of the First Amendment with campaign regulations and privacy -- including Roe v. Wade .

Can Miers's confirmation be blocked? It is easy to get a senatorial majority to take a stand in defense of this or that concrete interest, but it is surpassingly difficult to get a majority anywhere to rise in defense of mere excellence.

Still, Miers must begin with 22 Democratic votes against her. Surely no Democrat can retain a shred of self-respect if, having voted against John Roberts, he or she then declares Miers fit for the court. All Democrats who so declare will forfeit a right and an issue -- their right to criticize the administration's cronyism.

And Democrats, with their zest for gender politics, need this reminder: To give a woman a seat on a crowded bus because she is a woman is gallantry. To give a woman a seat on the Supreme Court because she is a woman is a dereliction of senatorial duty. It also is an affront to mature feminism, which may bridle at gallantry but should recoil from condescension.

As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch's invaluable dignity. Finally, any Republican senator who supinely acquiesces in President Bush's reckless abuse of presidential discretion -- or who does not recognize the Miers nomination as such -- can never be considered presidential material.

[email protected]

© 2005 The Washington Post Company

[exstatic]

Are people actually surprised that she doesn't know dick about the Constitution? That's the real puzzle...

[boutons]

http://www.creators.com/1016/LK/LK1021bg.gif


http://images.ucomics.com/comics/wpswi/2005/wpswi051021.gif

[boutons]

The New York Times
October 23, 2005

Schumer: Few Senators Now Favor Miers For Court
By BRIAN KNOWLTON

International Herald Tribune

WASHINGTON, Oct. 23 - A senior Democrat on the Senate Judiciary Committee, Senator Charles Schumer of New York, said today that if a vote were held now on the embattled nomination of Harriet Miers to the Supreme Court, she would not be confirmed.

"She would not get a majority either in the Judiciary Committee or the floor," he said on NBC's "Meet the Press."

Some Republicans disagreed with that assessment, but others insisted that the case for confirmation was far from made.

One of Ms. Miers's most outspoken Republican critics on the committee, Senator Sam Brownback of Kansas, said that senators needed much more information about the nominee - who has never been a judge, and whose documentary record has been judged rather sparse - to make an informed judgment, let alone to confirm her.

He went so far as to say that if in order to provide Ms. Miers's papers, the White House had to waive executive privilege - a legal principle invoked by this and earlier White Houses to block release of some sensitive documents - then that was "almost a risk they assume when you nominate a candidate that's from inside the White House."

In contrast, the chairman of the Judiciary Committee, Senator Arlen Specter, Republican of Pennsylvania, said, "I don't think the nomination is in trouble." He credited Ms. Miers with "a very, very strong record as a civil lawyer," and added, "I think she has the capacity to handle constitutional law."

But Mr. Specter said the fate of the nomination would probably depend on how she comes across during Senate confirmation hearings set to begin Nov. 7. All 18 committee members will be well-prepared, he said, for what will amount to an "interrogation."

Senator Schumer said that three areas troubled him: Ms. Miers's legal qualification, as someone who has never been a judge or specialized in constitutional law; uncertainties over her judicial philosophy; and the question of her independence from a president for whom she has worked, most recently as White House general counsel.

One committee Democrat, Senator Dianne Feinstein of California, said she felt particular concern over how a Justice Miers would treat cases involving executive power - whether regarding treatment of detainees, the fight against terrorism, or the reach of international treaties -- that come before the court.

Senator Feinstein said that when she met recently with Ms. Miers, the nominee had declined to say that she would recuse herself from "any issue connected with this president" that might come before the court. The senator said on CBS's "Face the Nation" that she found that troubling.

But one conservative senator, Kay Bailey Hutchison of Texas, strongly defended the nomination of her fellow Texan and said that she saw no chance that the White House might withdraw Ms. Miers's name. "She is totally qualified for the Supreme Court of the United States," Hutchison said on "meet the Press."

There was mounting pressure today for the White House to release additional documents about Ms. Miers's work there, to provide a fuller picture of her views. Some analysts suggested that a battle over releasing such documents could force a standoff that might lead to Ms. Miers's withdrawal.

The Democratic Party chairman, Howard Dean, said on ABC's "This Week" that "if the president wants to get this nomination through, with all the flak he's getting from the right wing, he needs to waive executive privilege." He added, "If we don't get those documents, she can't get confirmed."

Mr. Dean called this "probably the most mismanaged nomination I've ever seen by the White House."

The nomination, remarkably, has probably received more virulent criticism from Republicans, who see Ms. Miers as lacking the conservative credentials and the experience they seek, than from Democrats. Prominent conservative commentators kept up their extraordinarily sharp attacks today.

"This nomination is a catastrophe," the columnist Charles Krauthammer said on "This Week." "I don't think there is a way she can end up being confirmed."

The commentator William Kristol, who worked in the administration of the first President Bush, said, "I think she'll end up withdrawing."

* Copyright 2005 The New York Times Company

[scott]

Harriet Miers' Constitutional knowledge is matched only by her use of grammar.

[boutons]

"
The Philadelphia Inquirer finds a questionable Harriet real-estate deal:

"Supreme Court nominee Harriet Miers collected more than 10 times the market value for a small slice of family-owned land in a large Superfund pollution cleanup site in Dallas where the state wanted to build a highway off-ramp.

"The payment came after a judge, who received thousands of dollars in campaign contributions from Miers' law firm, appointed a professional associate of Miers and an outspoken property-rights activist to the three-member panel that determined how much the state should pay." Hmmm.
"

http://www.washingtonpost.com/wp-dyn/content/linkset/2005/04/11/LI2005041100587.html

[boutons]

It sure looks like this Miers lady is dead-meat, even on the Repub side of Congress.
It will be hilarious if the vote goes strict party line, Dems approving, Repubs rejecting. :lol

==================================

October 26, 2005

Senators in G.O.P. Voice New Doubt on Court Choice
By DAVID D. KIRKPATRICK

WASHINGTON, Oct. 25 - The drumbeat of doubt from Republican senators over the Supreme Court nomination of Harriet E. Miers grew louder Tuesday as several lawmakers, including a pivotal conservative on the Judiciary Committee, joined those expressing concerns about her selection.

Emerging from a weekly luncheon of Republican senators in which they discussed the nomination, several lawmakers suggested that as Ms. Miers continued her visits on Capitol Hill, she was not winning over Republican lawmakers.

"I am uneasy about where we are," said Senator Jeff Sessions, an Alabama Republican on the Judiciary Committee who had so far expressed only support for the president's choice. "Some conservative people are concerned. That is pretty obvious."

Senator John Thune, Republican of South Dakota, called Republican sentiment toward Ms. Miers's nomination "a question mark."

"There is an awful lot of Republican senators who are saying we are going to wait and see," he said.

Senator Norm Coleman, a Minnesota Republican in the political middle of his party, said he needed "to get a better feel for her intellectual capacity and judicial philosophy, core competence issues."

"I certainly go into this with concerns," Mr. Coleman said.

Coming less than two weeks before confirmation hearings, the public questioning by Republican senators may be an ominous sign. Of the 10 Republicans on the 18-member Judiciary Committee, Mr. Sessions joins two others who have publicly raised concerns: Senator Sam Brownback of Kansas has questioned her legal views on abortion rights, and the committee chairman, Senator Arlen Specter of Pennsylvania, has said Ms. Miers could benefit from a "crash course in constitutional law."

Several Republican aides, speaking on condition of anonymity for fear of reprisals, said two other Republican committee members, Senator Tom Coburn of Oklahoma and Senator Jon Kyl of Arizona, had privately raised questions about her judicial philosophy. Both declined to comment on their views of her.

And leaving the lunch meeting on Tuesday, Senator Lindsey Graham, Republican of South Carolina and a Judiciary Committee member, acknowledged that senators who had met with Ms. Miers were telling colleagues that they had been unimpressed.

"She needs to step it up a notch," Mr. Graham said.

Senator Trent Lott, Republican of Mississippi, said there was not much enthusiasm for the nomination among Senate Republicans, although most had "held their fire."

Many prominent conservatives have criticized the nomination or called for its withdrawal, and one conservative group plans on Wednesday to start a week of radio and television advertising urging Ms. Miers's withdrawal.

At a Republican National Committee dinner on Tuesday night, President Bush restated his support for Ms. Miers, calling her "a really fine person" and "a good practicing attorney" who "will strictly interpret the Constitution of the United States."

Ms. Miers also has champions on the Judiciary Committee, most notably her friend Senator John Cornyn, Republican of Texas, and Senator Orrin G. Hatch, Republican of Utah. Senator Mike DeWine, an Ohio Republican on the committee, said on Tuesday that she was a qualified nominee who deserved a hearing before the Senate.

No Republican senator has publicly suggested that she withdraw. But on Tuesday some offered notably neutral comments about the question.

"To support the withdrawal would be a rebuke of the president, not her, because she has not said anything yet, so that is a slam on the president, not Harriet Miers, so I don't think any Republican wants to do that," Senator Graham observed.

Ms. Miers faces a deadline of Wednesday to comply with a request from Mr. Specter and Senator Patrick J. Leahy, the ranking Democrat on the Judiciary Committee, for fuller answers to her judicial questionnaire and documents relating to her work in the White House. Mr. Specter has said he believed Ms. Miers could provide some documents and other information without unduly violating the confidentiality of White House deliberations.

But at the Republican dinner on Tuesday night, Mr. Bush restated that he did not intend to provide them. "Asking for those documents is a red line, as far as I'm concerned, in protecting the White House and the ability to operate," he said.

In an interview Tuesday, Mr. Hatch, a former chairman of the committee, argued that Republicans had previously opposed the arguments for disclosure that Mr. Specter was making. "I am just surprised that there are some on our side using it, after we have established that principle," Mr. Hatch said.

But other conservatives who said they supported the administration's stance also said that the lack of information about Ms. Miers's work there could make it harder for her. "It is going to be incumbent on her to get as much information to Republicans as possible in response, particularly, to some of the fundamental constitutional issues," Mr. Thune said. "She has really got to raise the comfort level around here.

Ms. Miers faced challenges from Democrats as well. After meeting with her on Tuesday evening, Senator Russell D. Feingold, a Wisconsin Democrat on the Judiciary Committee, expressed frustration that she had declined to discuss any of her White House work. ,"There is a kind of a hard line coming from the White House on this that is actually to her detriment," Mr. Feingold said.

Ms. Miers "did a decent job" discussing cases about the scope of federal power under the Constitution's commerce clause, he said, but stopped short of disclosing her own views. And he said she was either unwilling or unable to discuss issues about the Constitution in a time of war, separation of church and state, and potential recusals if matters she had worked on came before the court.

Asked if the debate had become "one-sided" with too few defending Ms. Miers , Senator Sessions, the Alabama Republican, struggled for words, then pushed a button for a nearby elevator in the Capitol building and told an aide, "Get me out of here."

[exstatic]

Asked if the debate had become "one-sided" with too few defending Ms. Miers , Senator Sessions, the Alabama Republican, struggled for words, then pushed a button for a nearby elevator in the Capitol building and told an aide, "Get me out of here."

:rollin Fucking classic.