October 18, 2005
Miersisms. Or am I misunderestimating, the nominee?
Posted by Victor Fleischer

Dave Hoffman points me to Miers' written response to the Senate, which includes the following gem (p.50):

My experience on the City Council helps me understand the interplay between serving on a policy making board and serving as a judge. An example, of this distinction can be seen in a vote of the council to ban flag burning. The Council was free to state its policy position, we were against flag burning. The Supreme Court’s role was to determine whether our Constitution allows such a ban. The City Council was anxious to encourage minority and women-owned businesses, but our processes had to conform to equal protection requirements, as well.

I'm sort of amazed this woman made it through a clerkship.  The most desperate cries for the red pen:  "An example, of this distinction ..." (delete the comma!), "position, we were against flag burning" (semi-colon or period, not comma), "requirements, as well" (awk). 

Perhaps she dictated her answers to a secretary.  But she still should have proofed it, no? 

The problem goes beyond misplaced commas.  Her answer sounds like that of an earnest (but not overly bright) high school student writing a practice essay for the SAT.  "The Council was free to state its policy position, we were against flag burning." Hmmm.  Did the Council state its policy position, or did it enact a statute?  Did the Council itself have an obligation to consider whether the ban was constitutional?  If not, why not?  Should the Council just enact whatever it wants, constitutional or not, and wait for the courts to knock it down?

Is this what we can expect in her Court opinions?  If Miers had written Brown v. Board, the doctrine of "separate but, equal" would be unconstitutional.  Or, perhaps, constitutional.  Is segregation a policy decision, or a constitutional issue?  Oh, my, it all gets so complicated.  Let's see how Thomas votes, and I'll just follow along. 

Someone please tell me this is a scanner error (my source is a pdf file from the National Review) or an elaborate practical joke.  I don't think we should have a Supreme Court Justice who would have trouble passing the typical 1L course in legal research and writing. 

Update: Of course, I just caught a typo in my own post. It happens.

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Comments (16)

1. Posted by Scott Moss on October 18, 2005 @ 20:58 | Permalink

I'm amazed the White House, Dan Coats, or a really good undergraduate intern didn't edit that for her....


2. Posted by BTD Venkat on October 18, 2005 @ 22:59 | Permalink

Cmon. We've all seen typos from highly regarded lawyers (maybe this wasn't a typo, but comma abuse, isn't the end of the world).

Heck we've seen typos and misplaced commas in SCOTUS opinions.


3. Posted by Scott Moss on October 19, 2005 @ 5:13 | Permalink

Yes, "typos" are hard to avoid 100%; I hate re-reading my own writing after the fact because invariably I find a typo or two that eight proof-reads somehow didn't catch. But in Ms. Miers's questionnaire we see (a) a number of errors (not just one) (b) that seem like common grammatical errors (rather than true "typos") (c) coming from a person whose published articles featured similarly odd grammar and syntax.

I think the evidence is pretty clear: Harriet Miers just can't write.


4. Posted by Christine Hurt on October 19, 2005 @ 7:47 | Permalink

Were the women and minority-owned businesses burning flags? Did we switch topics? I'm confused.

Yes, everyone makes typos/spelling errors. However, most of us catch them before we hand them to the Senate in our application for one of the most powerful positions in the country, which is the most powerful in the world.


5. Posted by Joe Miller on October 19, 2005 @ 9:01 | Permalink

The errors are odd. But they are not as deeply troubling (at least not to me) as the proposition that, when voting as a member of the Dallas City Council, she did not need to give a fig for the constitutionality of what she was voting on. Given the central constitutional role that state and local governments are required to play in, e.g., the takings area (can you say Kelo?), her blithe disregard for the supreme law of the land is passing strange.


6. Posted by elizabeth nowicki on October 19, 2005 @ 10:58 | Permalink

"Were the women and minority-owned businesses burning flags? Did we switch topics? I'm confused."

Professor Hurt, you made my day!

Obviously the City Council was trying to encourage women and minority-owned businesses NOT to burn flags, but they (the City Council) had to wait to first conform to equal protection requirements.
(tongue firmly in cheek)


7. Posted by TCO on October 19, 2005 @ 21:52 | Permalink

"The Council was free to state its policy position, we were against flag burning."

Poor construction here. She changes the number of the actor (council) in the middle of a sentence. Puts a lot of stress on the reader and also makes one wonder about the plural pronoun. Is it refering to the singular council?

I prefer: "The Council was free to state its opinion: It was against flag burning." (colon works better here than semicolon since the second clause is in apposition to "opinion").

P.s. I know my post is poorly written. But my points about her style are relevant.


8. Posted by TCO on October 19, 2005 @ 21:53 | Permalink

P.s. Bushitlerchimperorshrubya is a lightweight. I'm really tired of him...


9. Posted by elizabeth nowicki on October 20, 2005 @ 12:03 | Permalink

Now I'm getting a bit paranoid: Am I acting like an obsessive law review editor by caring about commas, spelling, and all that?

Phrased differently, in the medical field, for example, I am not convinced that all of the brilliant, top top oncologists out there have actually mastered how to make a cursive "m." They write the top textbooks, they put out cutting edge treatment protocols, they teach and give exams to the next generation of brilliant oncologists, but they often do it by dictating into a hand-held tape recorder.

Does that influence my view of their intellectual firepower? If not, then why is Miers different?

It is not because she has to write for a living - so do the oncologists, and they manage by dictating. It is not because she, through her lousy punctuation, might improperly punctuate and thereby change the law. She is protected by her super-skilled Law Review editor salivating by her side, Strunk and White and the Bluebook in hand, and the clerks of the other Justices.

So maybe I am just a dork, who cannot see the forest through the trees, because I actually cringed when I tried to read the portion of her statement that was cut-and-pasted in this thread. Maybe I need to revisit my instinctual response, or maybe I should at least cut the woman some slack.


10. Posted by Christine Hurt on October 20, 2005 @ 13:56 | Permalink

Elizabeth, I think you're right to value your snap judgment. Manipulating a pen is different than manipulating your thoughts into words. Doctors aren't valued on their penmanship, but lawyers are valued on their ability to get clear thoughts onto paper in clear syntax. Yes, sometimes lawyers collaborate with others who help them refine their prose, just as doctors may collaborate with others to refine a diagnosis or prognosis. If these errors were in a timed writing that Miers had done in an LSAT environment, that's one thing. However, she had a lot of time to fill out the questionnaire and I assume that she was able to ask others to look over it.

Of course, I taught legal writing, so I am biased by my experiment to believe that at some point, awkward writing represents awkward thinking.

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