A Primer On Con Law Might Be Useful

By the way, there's some fun stuff here in the Miers nomination, especially to legal geeks. Fighting the elitism charge is a hell of a lot easier when people know what you're talking about...

Meanwhile, several constitutional law scholars said they were surprised and puzzled by Miers's response to the committee's request for information on cases she has handled dealing with constitutional issues. In describing one matter on the Dallas City Council, Miers referred to "the proportional representation requirement of the Equal Protection Clause" as it relates to the Voting Rights Act.

"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.

Cass Sunstein and I don't agree on a lot of things, but Harriet Miers has brought us together. I suppose that's a good thing.

The Miers Ship Continues To Struggle

The Journal's latest editorial on the Miers nomination shows they're edging toward telling the White House it's time to withdraw...

Senate Republicans now find themselves caught between their loyalty to the President and their entirely legitimate concerns about Ms. Miers's philosophy and qualifications. For their part, Democrats have so far largely been content to watch their opposition squirm and shout. But they will certainly play the opportunists, jumping on any opening on ethics or ideology to defeat her and embarrass the President.

The liberal base may even demand it, given that one of the White House's private selling points to religious conservatives has been that she is both an evangelical and is personally opposed to abortion rights. (Hint: She'd vote to overturn Roe v. Wade.) These assurances, if that's what they were, may turn out to have been doubly counterproductive, given that they also undercut Republican claims to believe in process- rather than results-oriented jurisprudence.

Perhaps Ms. Miers will prove to be such a sterling Senate witness that she can still win confirmation. But so far the lesson we draw from this nomination is this: Bad things happen when a President decides that "diversity," personal loyalty and stealth are more important credentials for the Supreme Court than knowledge of the Constitution and battle-hardened experience fighting the judicial wars of the past 30 years.

This is about as close as the WSJ will get to telling the President the battle is over. I mentioned this to the Lord of Truth and the Minister of War yesterday -- many of the major leaders of the Christian Right have backed the President on this one, but it's their base that's not following them or him, and the rest of the right-wing concerned with jurisprudence can't take this pick seriously.

For one thing, it entirely concedes the idea that you can get a true judicial conservative (Lutting, McConnell, Alito, Estrada, etc.) confirmed. Second, it applies an absurd quota to the high bench, in that a woman can only be replaced by a woman (when I was in high school, I objected to the Clarence Thomas nomination on similar grounds since he was replacing Thurgood Marshall, but I'm depressed that I was even thinking about this crap in high school). Third, how can you say with a straight face that she's the best candidate for the job, based on his promise to deliver another Scalia or Thomas? I almost threw up when Bush cited her time on the friggin' Lottery Commission as a qualification. Ye gawds, that's like me listing my service as treasurer of my fraternity as a rationale for being elected to Congress. And based on John Fund's article today, the Lottery Commission service may actually hurt Harriet.