Does Harriet Miers Support Affirmative Action?
I have pointed out previously that those who say we should “trust Bush” on the Miers nomination seem to forget his position on certain issues. To cite a prominent example, the Bush Administration argued for affirmative action in the Supreme Court case of Grutter v. Bollinger.
You might be able to trust Bush to pick a pal that he thinks will carry out his political agenda. But even if he’s right, that’s not necessarily the same thing as picking someone who will be your idea of a judicial conservative.
This op-ed by John Yoo raises a specific (but undocumented) concern along these lines:
By all accounts, Miers distinguished herself as a loyal, dedicated and hard-working aide. But, according to press reports, she did not win a reputation as a forceful conservative on issues such as the administration’s position on stem cell research or affirmative action.
I wish Yoo would specify what press reports he is talking about. He doesn’t link them, and I can’t find them. In his diary, David Frum elaborates, similarly without documentation:
Yoo is referring here to the case of Grutter v. Bollinger, a challenge to the constitutionality of preferential treatment for minorities in education. Many in the administration wanted to take a strong stand in favor of color-blindness. In the end, the administration faltered and argued that racial preferences are okay, up to a point. It is hard to imagine a more central issue to modern legal conservatives. Where was Miers? On the wrong side.
Frum does not say how he knows this. I believe Frum left the White House well before Grutter v. Bollinger was argued, and he doesn’t say that he heard specific discussions about this topic when he was in the White House.
But this issue is worth looking into further. If Yoo and Frum are right — and I stress if — then Miers may be a pick that would please Bush, but she is not one that should please judicial conservatives.
Miers could be Alberto Gonzales in a dress. We need to find out before she gets on the Court and starts issuing rulings.
If Yoo and Frum prove to be correct on this issue, I will be actively opposing this nominee.
Note well, however, that even if Miers turns out to have supported affirmative action, that will not cause the Beldars and Hewitts of the world to withdraw their support for Miers. I have already pointed out that both men announced their putative support for Gonzales even though they knew that Gonzales’s support of affirmative action was a matter of public record.
Support for Affirmative Action is the one political position that I cannot overlook in a candidate. If they like that, it doesn’t matter how amazing they are on every other issue, since I think the entire thought process behind it is so deeply flawed and incorrect, not to mention offensive to my preference for meritocracy (another reason I dislike the Miers nomination. There is no way that she’s the “most qualified” female, let alone any, nominee in the country, as Bush claimed).
If this is true, all bets are off, and I expect and demand of my senators the bloodiest war ever against her nomination, the president’s political standing be damned.
Angry Clam (fa7fff) — 10/6/2005 @ 7:02 amAre we all going to fight over our pet peeves? Then we really are going to bloody each other and lose it. Isn’t it enough that most of us agree not to vote for McCain? Look what he did yesterday.
Affirmative action is not my big issue, so I pass. The UN was mine and W has tried better than anyone else. Hell, he is bucking an entire world.
After being furious and ready to fight for 24 hours over Miers, I remembered Bolton. I will join you to go after McCain but no, I stay with W.
Our energy would be better spent going after that useless bunch of wimps in the Senate.
owl (59f451) — 10/6/2005 @ 9:16 amWhat did McCain do yesterday that has you so upset?
Angry Clam (a7c6b1) — 10/6/2005 @ 9:37 amThat’s true; in fact, he doesn’t even say that he knows it. It sounds like he has simply concluded that from the fact that John Yoo wrote that some other press guy wrote that some unnamed sources said she wasn’t known as a “forceful” advocate on the issue. I’d like something a little more concrete than that.
Xrlq (ffb240) — 10/6/2005 @ 11:01 amClam, let’s make a distinction between affirmative action for the sake of achieving racial diversity, and a race-based remedy for continuing harm caused by specific, historic race-based discrimination. It’s not at all clear that the Equal Protection Clause requires color blindness in all circumstances — take a look a the Slaugherhouse cases, decided by the Court in 1872. If meaning of the Constitutional language at the time of ratification at the time of ratification is to be our standard of interpretation, then there are certainly circumstances in which a race-based remedy would be permitted by the Equal Protection Clause.
But there would never, ever be a circumstance in which a racial classification could be used for any other purpose, including the achievement of diversity for its own sake, and regardless of whether there is any finding that racially diverse is better than not diverse. O’Connor’s ludicrous assertion that achieving racial diversity is so important that it is a compelling state interest justifying racial classification twists the equal protection clause from a guarantee that one’s race won’t be a legal disadvantage into a weapon that can be used to make race a relative advantage or disadvantage to whichever racial group, however defined, that a state chooses to consider favored or, as it may happen, disfavored. The day will arrive when a descendant of black slaves will find himself denied a place in a college or graduate school becuase “we already got too many of you people”; and the significance of this event will be completely lost on the know-nothings on the diversity bandwagon. I’m very afraid that Miers might be one of them.
TNugent (58efde) — 10/6/2005 @ 11:46 amI think, though, that programs termed “affirmative action” left the world of remedial action a long time ago.
If it were shown that there was discriminatory intent in hiring, and as a result a large number of minorities were required to be hired, I wonder if that would even be recognized as “affirmative action” by any modern observers.
Angry Clam (fa7fff) — 10/6/2005 @ 11:54 amThat’s true; in fact, he doesn’t even say that he knows it. It sounds like he has simply concluded that from the fact that John Yoo wrote that some other press guy wrote that some unnamed sources said she wasn’t known as a “forceful” advocate on the issue. I’d like something a little more concrete than that.
I agree. I should have said: “Frum hasn’t said how he supposedly knows this.” That’s what I meant, but I wasn’t clear.
Patterico (f5fa0e) — 10/6/2005 @ 12:18 pm[…] Either Frum is a much better legal expert than I, or I’m just an idiot for failing to understand what on earth the Bush Administration’s position on stem cell research has to do with anyone’s qualification to sit on the Court. Affirmative action is relevant, of course, but as a constitutional matter it’s not nearly as clear-cut as Frum makes it out to be; indeed, a conservative case can be made that while affirmative action may be bad policy, it is nevertheless constitutional unless conservative judicial activists do to the Equal Protection Clause of the Fourteenth Amendment what the liberals have already done to the Establishment Clause of the First. And yes, I do realize that admitting as much on this here blog, I’m virtually guaranteeing that if I’m ever appointed as a judge, Patterico will actively oppose my nomination. That’s just a chance I’ll have to take. […]
damnum absque injuria » More Frum-py Logic (38c04c) — 10/6/2005 @ 12:30 pmBut Clam, it’s still important to make purpose part of the analysis. It’s the failure to go back to the original purpose that brought us to Grutter v. Bollinger. Go back to the meaning of the equal protection clause when ratified — not just a narrow, literal meaning, but what the words were reasonably understood to mean — and the remedial purpose is clearly there. And the purpose limits the scope of what the government can do. Forget about the purpose and the limit goes away, giving us “diversity” as a compelling state interest, or rather, an excuse for circumventing the constitutional command that a state not make someone’s race a legal disadvantage.
TNugent (6128b4) — 10/6/2005 @ 1:05 pmI know. It’s a dispute of terminology.
Angry Clam (fa7fff) — 10/6/2005 @ 1:07 pmWe don’t know exactly what was said internally within the Administration that led to its position, which was (consistent with the eventual decisions by the Supreme Court) to condemn the undergraduate program at Michigan and support the “plus-factor” scheme at Michigan Law School. I would have certainly preferred that the Administration had taken the bold and intellectually rigorous approach and condemned both programs. I’ve mocked and ridiculed Justice O’Connor’s pragmatic and unprincipled — which is to say, politically expedient — opinion in the law school case. And I would obviously be disappointed were Justice O’Connor’s seat to be filled by someone who’d write and vote as she did on those questions.
That said, that’s one issue of many important ones. Even one as important as that, or as important as abortion (your baby-skull-scissors, Patterico), is neither going to make me support or make me oppose a nominee.
And the important thing is that this time, Gonzales is indeed not the nominee. So I’m a bit flummoxed to be here defending my support of Ms. Miers based on my failure to condemn Gonzales.
Beldar (c4af44) — 10/6/2005 @ 10:39 pmOne of the weaker arguments I’ve read in this debate is that Justice Scalia is more “persuasive.” Baloney. His opinions are frequently cathartic, and very well reasoned, but I have little doubt that his caustic tone has, on more than one occasion, “persuaded” Justice O’Connor to vote the other way. No, I’m not blaming the cop Scalia for “making” O’Connor kill the hostage. I am blaming him, however, for failing to take into account the possibility that O’Connor might kill the hostage,
My point is not that we need Miers on the bench, but that we probably do need someone who can be trusted to vote the right way, or at least a right way on the more complex issues, but one who is a lot better than Justice Scalia at persuading others to do so. I don’t know if Miers is that candidate or not.
Xrlq (428dfd) — 10/7/2005 @ 7:25 amXrlq,
You are one of the most caustic bloggers I know. You are also often one of the most persuasive. You don’t persuade with flowers and candy, but by the force of your arguments. The same goes for Scalia.
I want a Justice who will be persuaded by powerful argument rather than hand-holding — and who can persuade others in the same way.
Patterico (4e4b70) — 10/7/2005 @ 7:32 amVery interesting take on this issue.
Stem Cells (68e5ac) — 1/4/2007 @ 8:15 am