Not As Dumb As It Sounded

Several pundits whom we respect, including Patterico and Michelle Malkin, were apoplectic today over one aspect of the questionnaire Harriet Miers filled out for the Senate Judiciary Committee. This was the offending paragraph; it was part of Miers’s recounting of her experience with Constitutional issues:

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.

The second sentence has been ridiculed on the ground that Miers seems to think that the Equal Protection Clause requires proportional representation of the races on bodies like city councils. When I read that sentence, I thought its syntax was confused, but that Miers was making a legitimate point about the Voting Rights Act, which does indeed come perilously close to mandating proportional representation of favored races. Miers had a lot of experience with the Voting Rights Act on the Dallas City Council; her at-large seat was eventually abolished by court order because the system then in use, with eight geographic districts and three at large members, didn’t produce enough black and Hispanic city councilmen. I thought that her reference to the Equal Protection Clause was garbled–that constitutional provision was also involved in the litigation over the Dallas City Council–but that her blunt characterization of the Voting Rights Act might provoke some honest discussion of that little-understood statute.

But I now realize that I was reading too much into Miers’s sentence. Left-wing law professor Cass Sunstein is, for once, right. All Miers meant was that the City Council, in trying to draw districts in compliance with the Voting Rights Act, had to take into account the one-man-one-vote rule that has been held to be mandated by the Equal Protection Clause. In other words, the districts had to be of roughly equal size so that each voter’s ballot counted about the same.

Thus understood, the criticism of Miers is (not for the first time) far out of proportion to the offense. The meaning she gives to the phrase “proportional representation” isn’t the usual one, but it is perfectly logical. Read in this way, there is nothing at all wrong with what Miers wrote. The Equal Protection Clause has indeed been held to require that voters be “proportionally represented,” i.e., that some citizens’ votes not be diluted by being part of a disproportionately large district.

All of which suggests, I think, two things: first, people shouldn’t be so quick to jump to the conclusion that Miers is an idiot. Let’s let her speak for herself at her confirmation hearing. And, second: Patterico, you can come in off that ledge.

PAUL concurs: Another example of interpreting everything Miers says or does in the worst possible light occurred after Miers wrote that good lawyers are creative. I don’t see how anyone can dispute that. But some conservatives interpreted this to mean that Miers would be a creative judge who would invent new constitutional rights, or whatever.

The shrill and harsh treatment of Miers by some conservatives reminds me of the way the lefties treat many of Bush’s conservative judicial nominees. Recall, for instance, how the left seized upon stray comments by John Roberts from the Reagan era, holding them out as smoking-gun evidence that Roberts’ confirmation would wreck the Republic. In my opinion, Miers was a poor choice, but that doesn’t mean that conservatives should imitate left-wing bloggers and rush headlong to the rhetorical edge.

I’d like to think that the piling on we’re witnessing isn’t just the product of blind rage. Perhaps it’s calculated to induce Miers to withdraw, either by applying direct pressure on her or by applying pressure on conservative Senators to oppose her. But either way, some of it strikes me as quite unseemly.


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