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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