Miers' Constitutional Law Experience

The Wall Street Journal (electronic version available to subscribers only, I'm afraid) published a front page article today on what, so far as I've heard, was the only constitutional law case Harriet Miers ever argued:

Amid 2000 Election Turmoil, Harriet Miers Took On A Constitutional Battle By JESS BRAVIN Staff Reporter of THE WALL STREET JOURNAL October 7, 2005; Page A1 WASHINGTON -- President Bush cites many accomplishments of Harriet Miers to explain her nomination to the Supreme Court. One the White House doesn't mention is her successful argument during the disputed 2000 election that Dick Cheney is definitely not a Texan.

The way she did that was striking: Her legal team successfully persuaded a judge to take what her brief described as a "broad and inclusive" reading of the Constitution. That runs counter to a conservative tradition of legal interpretation that calls for a relatively narrow reading of constitutional texts. President Bush has long championed that philosophy, and much of his conservative base -- now hungry for clues about the little-known Ms. Miers -- has been eager for a Supreme Court nominee in that mold....

The section of the Constitution at issue is the relatively obscure 12th Amendment, overshadowed by its neighbor, the 13th, which abolished slavery after the Civil War. Ratified after the disputed 1800 election, the 12th lays out a number of regulations for the Electoral College. The rule in question says a state's delegation can't vote for presidential and vice presidential candidates who are both from electors' home state.

The 12th Amendment sat silently on the books for 196 years until the Bush-Cheney ticket, after falling 543,895 votes short of the Gore-Lieberman ticket, nevertheless stood poised to claim 271 electoral votes to the Democrats' 266.

Annoyed by that prospect, three Texas voters filed suit under what they called the Constitution's Habitation Clause, seeking to prevent the state's 32 electoral votes from going to the Republicans. George W. Bush, then the state's governor, didn't deny his Texas standing, despite being born in Connecticut. But the plaintiffs also alleged that Mr. Cheney lived in Dallas as chief executive of Halliburton Co. Mr. Cheney contended he was a Wyomingite.

Essentially, she argued that although Cheney owned a house in Texas, had two cars registered there, and until very recently had been registered to vote there, that the idea of "residence" in 2000 was very different from in 1800, and so for constitutional purposes he should not be considered a Texas resident.

Now, I'm not necessarily saying her argument was a travesty that proves she's another Souter. Basically, she was just trying to get her client off. (It does strike me as awfully careless of Bush and Cheney not to have noticed the problem till that late.) But it does strike me as interesting/amusing that this is the only constitutional law paper trail that Miers has, when we were promised an originalist on the order of Thomas or Scalia.