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.
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Because Ms. Miers, now the White House counsel, has so rarely tackled big constitutional issues in her career, the case offers an unusual — if limited — glimpse into her legal background.
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.
With Bush v. Gore heading to the U.S. Supreme Court, few took notice of Jones v. Bush when it was filed Nov. 20 in Dallas’s federal courthouse. Mr. Bush understood the stakes and dispatched his crackerjack legal counselor Ms. Miers.
How far one can read Ms. Miers’s views in the way the case unfolded isn’t clear. A footnote amid the tumultuous 2000 presidential election, Jones v. Bush came at an unusual time of legal and political confusion.
For its part, the White House cautions against reading too much into it. “This case is a factual dispute regarding residency, and Harriet Miers vigorously represented her client,” White House spokeswoman Dana Perino said yesterday. “Arguments an attorney makes on behalf of a client do not necessarily reflect how one would rule as a judge.”