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U.S. Supreme Court

Miers falls flat with scholars

Experts cite an error that might be a misunderstanding of constitutional law or perhaps a "brain freeze."

By BILL ADAIR
Published October 22, 2005

WASHINGTON - The White House has portrayed Supreme Court nominee Harriet Miers as well-versed in constitutional law, someone who could easily handle the unique legal turf of the nation's highest court.

But law professors who have reviewed Miers' Senate questionnaire say it shows little work on important constitutional issues. And, perhaps more troublesome for Miers, they say she made a significant error explaining her experience, referring to a 14th Amendment protection that does not exist.

"She is unquestionably an intelligent person and a competent lawyer," said Cass Sunstein, a law professor at the University of Chicago. "But she's had very little experience in constitutional law."

Mary Cheh, a law professor at George Washington University, said Miers was a seasoned corporate lawyer, but has "a thin record of work with constitutional cases. It's not a blank slate, but it's very, very thin."

The Bush administration has emphasized her experience in constitutional law and said it makes her qualified for the court. 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."

Her 57-page questionnaire, delivered to the Senate Judiciary Committee on Tuesday, was Miers' first opportunity to respond in detail to complaints about her lack of experience.

But just a day later, senators from both parties complained that her answers were incomplete. Committee leaders sent her a stern letter demanding more details for nine of the 28 questions, including one about constitutional experience.

In that question, the committee asked her to "describe in detail any cases or matters you addressed as an attorney or public official which involved constitutional questions."

In her initial 11/2-page response, Miers said she dealt with those issues as White House counsel, as a corporate lawyer and during her two years on the Dallas City Council.

"For instance," she wrote, "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 law professors said the clause, which is part of the 14th Amendment, does not have a "proportional representation requirement."

"Whatever she is trying to say there, she didn't say it well," said Cheh, adding that the error "is worrisome because it might be a basic misunderstanding about the Voting Rights Act."

Sunstein, a well-known constitutional scholar, said Miers may have made the mistake because of "a simple brain freeze, the sort that all human beings are subject to. On the other hand, it is at least mildly embarrassing to make a mistake of that magnitude."

White House spokeswoman Jeanie Mamo said people "may be misconstruing" Miers' answer and that it is "entirely consistent with the requirements of the Equal Protection Clause as interpreted by the Supreme Court."

Miers also cited her work on Jones vs. Bush, a case from the 2000 election in which some Texas voters tried to stop Bush from receiving the state's electoral votes because he and his running mate, Dick Cheney, allegedly lived in the same state, which is prohibited by the 12th Amendment. Miers, an attorney for the Bush-Cheney campaign, served as lead counsel in the case defending Bush.

In her questionnaire, Miers called it "one of the only modern cases to address the Habitation Clause of the 12th Amendment."

But David Garrow, a legal historian at Cambridge University, said it was not a major case.

"In the questionnaire, she is trying to present it as something of dramatic constitutionality," he said. "At the time, this was viewed as an exceedingly minor matter."

Miers also cited work on two other constitutional cases - one involving whether a court should have certified a class action against Microsoft and another involving the right to a jury trial. But Lyle Denniston, a longtime analyst of the Supreme Court, wrote on SCOTUSBlog.com that those cases did not involve significant constitutional questions.

Miers wrote that in her work as White House counsel, "I am called upon to advise the president and White House officials on presidential prerogatives, the separation of powers, executive authority and the constitutionality of proposed regulations and statutes." But she does not give examples.

Garrow said she is exaggerating the constitutional aspects of being White House counsel because "the serious constitutional heavy lifting is done in the Justice Department."

Carl Tobias, a law professor at the University of Richmond, said Miers' legal career and White House work should make her well-suited for cases interpreting state and federal laws.

"She is a different kind of candidate," he said. "Since the mid 1960s, most everybody (on the Supreme Court) has come off the federal appeals courts. I think it's good to have some diverse experience. But the question is, is her experience sufficiently relevant?"

[Last modified October 22, 2005, 01:36:15]