Thursday, October 20, 2005

Miers' experience with the Constitution

Because it is so important, and relatively short, quoted in full below is Miers' response to the Senate Judiciary Committee questionnaire asking for her experience with Constitutional issues:

"17. Constitutional Issues: Please describe in detail any cases or matters you addressed as an attorney or public official which involved constitutional questions. For each case or matter, please describe in detail the constitutional issue you dealt with, the context in which you dealt with it, and the substance of any positions you took related to that issue. Please identify and provide copies of: any briefs you have drafted or filed, transcripts or other records of any oral arguments you have made, and memoranda, speeches or other materials you have written relating in any way to such issues, as well as any other materials that reflect your familiarity with, views on, or questions regarding such issues.

As Counsel to the President, I am regularly faced with issues involving constitutional questions. 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.

While in private practice, I handled cases involving constitutional questions, some of which are described in more detail in response to questions 15 and 16. I represented Disney Enterprises on several occasions in litigation brought in Texas that involved issues of personal jurisdiction, including Disney Enterprises, Inc. v. Esprit Finance, Inc. In that case, like others in which I represented Disney, I argued that, under the Due Process Clause of the Fourteenth Amendment, there were not sufficient "minimum contacts" between Disney and Texas to justify forcing the company to respond to a lawsuit in the Texas courts. I have handled many cases involving issues of personal jurisdiction under the United States Constitution. For instance, in Westinghouse Electric Corporation v. Rio Algum Limited, described in detail in response to question 16, a significant issue was whether the United States District Court for the Northern District of Illinois had personal jurisdiction over my client, Pioneer Nuclear, consistent with the Due Process Clause of the Fourteenth Amendment. We argued that Pioneer had insufficient contacts with Illinois to be subject to personal jurisdiction there, the court ultimately disagreed.

Microsoft Corp. v. Manning, described more fully in question 16, involved the interplay between state and Federal class action laws, and also raised Federal constitutional issues involving the proper application of the Due Process Clause and the Full Faith and Credit Clause. On behalf of Microsoft, I argued that the trial court's class certification violated Microsoft's due process rights under the state and Federal constitutions and the Full Faith and Credit Clause of the United States Constitution. The trial court decertification of the class was in part based upon the briefing filed on behalf of Microsoft. Thereafter, the plaintiffs dismissed the case altogether.

I handled one of the only modern cases to address the Habitation Clause of the Twelfth Amendment, which states: "The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves." Jones v. Bush, 122 F. Supp. 2d 713 (N. D. Tex. 2000), relief denied, 244 F.3d 144 (5th Cir. 2000) (unpublished), cert. denied, 531 U.S. 1062 (2001). This clause bars a member of the Electoral College from voting for inhabitants of the elector's state for both President and Vice-President. I argued on behalf of then-Governor Bush that the plaintiffs lacked constitutional standing to sue under the relevant clause of the Twelfth Amendment, and in the alternative that Mr. Cheney was an inhabitant of Wyoming rather than Texas within the meaning of the Twelfth Amendment.

In George R. Truitt, Trustee for Hunt International Resources Corporation v. Manufacturers Hanover Trust Company, described in detail above, among the issues litigated pre-trial was the scope of the Seventh Amendment right to a jury trial in suits at common law as discussed in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989).

In addition to litigated matters, I represented a media client for many years. My representation encompassed many First Amendment issues that were never litigated, including libel. For instance, I would often consult on prepublication review of articles and issues related to reporters' sources of information.

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. Likewise, everyday city council issues potentially implicate constitutional rights, including zoning decisions, voting redistricting, eminent domain, and police activities. As a member of the Texas State Lottery Commission, I was responsible for overseeing the operations of one of the nation's largest lotteries. Among the many issues before the commission were questions arising under the Federal Indian Gaming Regulatory Act, which implicates tribal sovereign immunity.

From 1970-1972, I served as law clerk to United States District Court Judge Joe E. Estes. Judge Estes routinely heard cases implicating constitutional issues, and I assisted in researching and drafting opinions and orders."

That's it. This is also what's getting Senator Specter all up in arms. Note the non-specificity of her answers when the question clearly asks her to "describe in detail the constitutional issue you dealt with, the context in which you dealt with it, and the substance of any positions you took related to that issue . . . ." Thus, in perhaps the most important part of her questionnaire, Miers arguably doesn't even answer the question.

Also, as noted by Professor Cass Sunstein of the University of Chicago, there is no "proportional representation requirement of the Equal Protection Clause." Hopefully, this is all part of Karl Rove's plan to get a real nominee once Miers is voted down in committee.


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