And for what it’s worth (which isn’t much): “One person, one vote” has become the preferred and politically correct term of art, usually abbreviated OPOV. Were our host to have written “one man, one vote” on a judicial questionaire of his own, he’d be savaged by some for being sexist — unfairly, of course, but there you have it; criticism isn’t always fair, is it?

My main point of agreement with your comment is that this particular criticism isn’t worth much.

Let’s put aside the fact that plenty of people use the term “one man, one vote.” (It was used in the WaPo article quoting Sunstein, for example.) Let’s put aside the fact that I wouldn’t use that term in a questionnaire of this sort, what with the rampant P.C. out there. Let’s put aside the fact that nobody was confused by my use of the term, whereas lots of folks were confused by Miers’s use of the term “proportional representation.” And, let’s put aside the fact that the term “one person, one vote” isn’t technically more accurate, since it is overinclusive (children are people too) just as “one man, one vote” is underinclusive.

Ignore all that. Let’s assume that you are completely right that it was wrong for me to use that term in a blog post.

What have you proven? Exactly this: if my blog post were an application to be an Associate Justice to the U.S. Supreme Court (which it isn’t), and if I were to proofread each post the way I would proofread such an application (which I don’t) — then one could argue that I am not qualified to be a Supreme Court Justice (which, I agree, I’m not).

So what?

So yes, you’re absolutely right: this is not worth much as a criticism.

So why did you make it?

The answer is obvious. To devalue my criticism by attacking me. No other reason.

Still, I think it’s important to recognize that this isn’t an area of law in which she’s practiced.

She is clearly inexperienced in this area, it’s true — just as she is in so very many areas of law that come before the Court. I don’t see this as a positive thing. It may be “important to recognize,” but perhaps not for the reason you think.

But it’s an absolute bit of balderdash to suggest that the same care ought to, or possibly could, have gone into the preparation on these questionaire responses as would go into an opinion of the Court. The latter would be polished, the product of reflection, and proof-read by multiple sets of eyes.

I’ll tell you what’s an “absolute bit of balderdash,” Beldar. The line that the Administration has been trying to feed us that Ms. Miers is especially attentive to detail, and shows a manic obsessiveness about grammar, spelling, and punctuation.

Miers:  "I'm sorry, miss…?  Is it too late to turn half those hamburgers into cheeseburgers?  And while we're at it, better give me 3 small fries to go with the 3 large and the 3 supersized fries.  As long as we&apo…

“I have no doubt that were I to be on a corporate board of directors whose counsel gave us federal income tax advice, for example, I’d make a thorough muddle in trying to explain what advice had been given to us — and that probably would be true even if I actually had a reasonably good understanding of what we were doing when I cast my votes! It’s the classic difference between active and passive vocabulary.

” Beldar

With all due respect, Beldar’s analogy does not hold up here. Ms Miers is not merely trying to EXPLAIN the advice she was given as a City Council member, she is applying for the position of being the lawyer (or in this case, the judge) who is GIVING the advice. That’s what makes her error such a compelling indictment of her legitimacy as a SCOTUS candidate.

As far as this error being only a minor inaccuracy, I must respectfully disagree with Beldar there as well. Although I would be the first to acknowledge that we humans are a fallible, mistake-prone lot, the fact that the Supreme Court is filled with smart, detail-oriented law clerks who draft, polish, fact check and proofread opinions does not justify appointing judges who are (at best) careless with language and imprecise with their use of legal terms of art. And if Ms Miers does not know or care enough to have her SCOTUS application vetted by competent constitutional scholars, what rational basis do we have for assuming that she would adopt a higher standard once on the Court (where, presumably, she would be the “competent constitutional scholar” of record and would direct her law clerks accordingly)?

Finally, I would like to pose a question to Beldar and all those who feel that the same care should not or could not have gone into the preparation of Ms Miers’ questionaire responses as would go into an opinion of the Court. If YOU had to fill out an application in support of your own nomination to the SC, knowing it would be scrutinized and fact checked not only by the Senate, the media and the general public, but by the entire U.S. legal community as well, how many people would you have review, polish, proofread and fact check your application?

Is it? Why shouldn’t she put great care into such a historic document? I just don’t buy that.

Actually, of course I’m no attorney, but I did read over her responses and what struck me the most about her answers is that some of them border on flippant. For example, on page 57, she is asked (I’m paraphrasing here): “Were most of your court appearances in civil or criminal proceeding? “ Her answer is simply “Almost all civil.” Is it too much trouble for Ms. Miers to answer the questions in complete sentences? She doesn’t seem to take the application seriously enough at times, so will she take the position seriously? Her lack of respect for the court should be grounds for an automatic rejection.

That’s not to dismiss its importance; but I, for example, had not heard any of these terms since law school until I began blogging specifically about the Texas redistricting efforts. I’d likewise be surprised if even our host has been counsel of record in a case directly involving these terms. And for what it’s worth (which isn’t much): “One person, one vote” has become the preferred and politically correct term of art, usually abbreviated OPOV. Were our host to have written “one man, one vote” on a judicial questionaire of his own, he’d be savaged by some for being sexist — unfairly, of course, but there you have it; criticism isn’t always fair, is it?

Those who don’t live in geographic areas covered by the section 5 preclearance provisions of the Voting Rights Act of 1965 — all y’all who aren’t statutorily, irrebuttably presumed, based on reprehensible conduct of your grandparents’ generation, to have racist intent if a redistricting has even arguably negative racial effects, such as disproportionate effect on existing minority office-holders — may look at things somewhat differently, and are likely see these issues come up in different contexts than we do here in Texas. If, as I suspect, most of Ms. Miers’ exposure to Voting Rights Act concerns, and in turn its underlying constitutional concerns, came not through her own law practice, but rather through discussion from the Dallas City Council’s facing of voting issues, then she probably relied upon the Council’s legal advisors — who, one presumes, were retained with the understanding that they had some expertise — rather than trying to re-learn the subject from scratch. That is to say, while she undoubtedly would bring her general knowledge as a lawyer to the City Council’s deliberations, she almost certainly wasn’t trying to be the City Council’s own lawyer on these issues. Perhaps she was repeating imprecise language she’d heard others use; perhaps her memory has been smudged slightly by the intervening years and events. Her critics, of course, blame her for all errors, but never account for the possibility that others may actually have introduced them; but the questionaire was her responsibility, and if someone else initiated an error, I doubt she’d try to escape responsibility for it.

Still, I think it’s important to recognize that this isn’t an area of law in which she’s practiced. It’s an area of law now much more thoroughly taught in law schools than it was in 1966-1970 (which was when much of modern election law was really getting going). So these things temper my expectations of someone in her position. I have no doubt that were I to be on a corporate board of directors whose counsel gave us federal income tax advice, for example, I’d make a thorough muddle in trying to explain what advice had been given to us — and that probably would be true even if I actually had a reasonably good understanding of what we were doing when I cast my votes! It’s the classic difference between active and passive vocabulary.

So if Ms. Miers, as our host charges, was guilty in failing to be as accurate as he might wish, or as an election law expert might wish, or perhaps even as she might wish, I’m just not terribly concerned. I certainly agree with our host that clear writing from the Supreme Court is important! But it’s an absolute bit of balderdash to suggest that the same care ought to, or possibly could, have gone into the preparation on these questionaire responses as would go into an opinion of the Court. The latter would be polished, the product of reflection, and proof-read by multiple sets of eyes. I’d no more expect Ms. Miers’ questionaire to meet the same standards of polish than I’d expect her to, say, include a draft opinion comprehensively and masterfully reconciling the SCOTUS’ competing holdings in last Term’s establishment clause cases as part of her “application package” for the Senate Judiciary Committee!

(And if you want to know a dirty little secret, sometimes the Supreme Court’s opinions — especially when still in slip form — have mistakes in them too! Oh my! Misplaced commas, semicolons, and colons; bad citation form; and occasionally inapt words as well. We’re talking here of human endeavor, and that is, always and forever, imperfect.)

So those searching for reasons to hate this nominee can surely find more by flyspecking her punctuation or usage of lingo. Those, like me, who think that’s unproductive and unrealistic, won’t.