Patterico's Pontifications

10/9/2005

Miers Did Support Affirmative Action

Filed under: Judiciary — Patterico @ 8:22 am

Here are a couple more depressing revelations on Miers that I hadn’t previously seen.

From an article in the Dallas Morning News, reprinted in the Monterey Herald:

Ms. Miers was one of 10 Dallas council members to unanimously approve a 1989 agenda item that revised minimum height, weight and vision requirements for Dallas firefighters to facilitate “promotion of certain ranks in the Fire Department,” particularly women.

The agenda item’s title: “Implementation of Fire Department Affirmative Action Plan.”

Because we don’t mind short, weak, nearsighted firefighters, as long as we get enough women in the process.

And from the October 7 edition of Washington Week (no Web link available), Joan Biskupic of USA Today corroborates John Yoo’s assertion that Miers was heavily involved in the Administration’s decision to argue for affirmative action in the Grutter case:

BISKUPIC: There’s not a paper trail at all on her, and actually the truth is–there are a couple decisions that she was–she played a larger role in. For example, the affirmative action case from Michigan two years ago, she gave a little bit more advice than usual. But one of the reasons that I think Alberto Gonzales had some things going against him is because he actually had his fingerprints on some of these memos. Harriet Miers didn’t.

I’m still waiting for something genuinely reassuring . . .

UPDATE: Jeff Goldstein has further thoughts, and they are well-considered and well-expressed, as his thoughts always are.

31 Responses to “Miers Did Support Affirmative Action”

  1. Well, a unanimous vote for certain standards may well indicate that they were reasonable and had the support of the fire department brass.

    Dean Esmay (44346c)

  2. If you go back to the linked article, you’ll find that the Dallas City Council was apparently in the habit of voting on all sorts of crackpot resolutions, urging other parties to do something (or not do something) that was absolutely none of the business of a city council.

    Dana R. Pico (ba0b64)

  3. P,

    I find it a rather large leap to go from this vote to “Miers supports (or even ‘supported’) Affirmative Action.” For one thing, as Dean points out, it IS a unanimous vote, so it’s not like in context these revisions were seen as anything problematic or controversial.

    For another thing, as I’m sure you’re aware, the actual letter of the law of affirmative action has nothing to do with ‘dumbing down’ the standards, as you seem to imply (though that is most people’s perceptions of it). Rather, it says, if your standards are set at yea bar, (1) start at the bar. (2) Of the resulting candidates, make sure your selections reflect the demographics of the community from which you are pulling.

    To save us all the argument, I agree that the way this is implemented is in many cases flawed (and, especially if quotas are involved, downright illegal). But poor implementation of affirmative action, such as accepting “short, weak, nearsighted firefighters” simply in order to bring more women on board, if that’s what really happened, is the correlation–not the causation.

    Tom (eb6b88)

  4. “For one thing, as Dean points out, it IS a unanimous vote, so it’s not like in context these revisions were seen as anything problematic or controversial.”

    Do you think that restoring affirmative action to California universities after the passage of Proposition 209 was a controversial topic?

    22 regents voted unanimously to do so in 2001.

    Sometimes unanimous votes are very controversial.

    Patterico (4e4b70)

  5. Tom, the point isn’t whether standards are dumbed down. Any standard which doesn’t pertain to substantive qualifications, such as race, should leave the government with an uphill fight to justify it. And justification is not impossible, but being right on the purposes which may serve as a justification for such otherwise irrelevant criteria is absolutely essential. And this is where the President and, so it would appear, Miers, gets it absolutely and disqualifyingly wrong: “diversity” is not remedial; rather diversity is classification for its own sake.

    Race-based remedies for harm caused by racial discrimination can be ok, but in permitting racial classification to achieve “diversity,” the requirement of a remedial purpose is disregarded or, just as bad, concluded to be met without any findings to that effect, opening a hole in the equal protection clause that renders the clause itself meaningless. That’s what O’Connor and the rest of the majority in Grutter gave us.

    If Miers supports that position, there are only two possibilities, and either should absolutely disqualify her: either she’s ok with O’Connor’s opinion that achieving “diversity” is sufficient justification for racial classification, in which case she just declared as a “living constitution” advocate, or she disagrees with O’Connor but went along with the administration’s position anyway, for the sake of political gain, because it would benefit the President politically. Here’s a thought — just because we have justices take an oath to uphold the constitution doesn’t mean we should appoint justices who don’t feel like they have to do so before they take the oath. We need to know exactly where she stands on this issue.

    TNugent (6128b4)

  6. Another controversial unanimous vote:

    In a unanimous vote on April 12, the Los Angeles City Council asked the LA Police Commission to take action that would bar INS or Border Patrol agents from Los Angeles Police Department (LAPD) facilities unless they are working on specific federal investigations, and then only with permission of the station’s commanding officer. The resolution called on the Police Commission to reaffirm its support of Special Order 40, a 1979 city policy that restricts police inquiries into residents’ immigration status. The motion also directs the Police Commission to convene a task force—composed of representatives from the American Civil Liberties Union and a variety of immigrant rights organizations–to conduct a study of all of the LAPD’s interactions with the INS. (LA Times 4/13/00)

    Try telling the residents of L.A. that this is an uncontroversial vote.

    Patterico (4e4b70)

  7. Oops. “because it would benefit the president politically” and “for the sake of politial gain” and saying the same thing twice and making redundant statments all at once. Deja vu all over again.

    TNugent (6128b4)

  8. Let those who urge acquiescence on the Miers nomination tell us how they would react if she was for abortion on demand. That’s not so farfetched as it may at first seem, and it’s just as serious.

    Now, we know she’s not pro-abortion, but if abortion is important to you, consider that nominations to SCOTUS carry similar weight with some of us. I’m trying to penetrate the fog here, open some eyes to the gravity of this issue, not start an abortion fight.

    Black Jack (ee9fe2)

  9. P,

    What I intended to convey was that, in the context (hence, my choice to include the words “in context” above) of a unanimous vote of the Dallas City Council, the situation was probably not all that controversial. If, however, you feel like it was, I believe the burden is upon you to demonstrate this in some way other than Death By Association With More Egregious Examples of Affirmative Action Gone Wrong.

    I would think it beyond obvious that the mere existence of a unanimous vote does not in any way guarantee that the subject was not controversial. Also beyond obvious to me is that the Dallas City Council does not have the same political configuration as, say, the UC Board of Regents or even the L.A. City Council (thereby creating the need to specify the context of this particular unanimous vote.

    I evidently failed to convey my point clearly, so my apologies for my part of this misunderstanding.

    Tom (eb6b88)

  10. Tom, the point isn’t whether standards are dumbed down.

    Well, Patterico’s insinuations in his original post hinted at that mentality, so that’s why I brought it up in the first place–to dispel the common myth that affirmative action consists of taking lesser-qualified people of color or white women and giving them jobs over more qualified white men.

    Tom (eb6b88)

  11. Black Jack asked the interesting question:

    Let those who urge acquiescence on the Miers nomination tell us how they would react if she was for abortion on demand. That’s not so farfetched as it may at first seem, and it’s just as serious.

    Now, we know she’s not pro-abortion, but if abortion is important to you, consider that nominations to SCOTUS carry similar weight with some of us. I’m trying to penetrate the fog here, open some eyes to the gravity of this issue, not start an abortion fight.

    I happen to be completely pro-life, to the extent that I oppose capital punishment as well as abortion. But I also know that if Roe v Wade is overturned, unless the Court manages to also declare the unborn child to be a legal person (and even Justice Scalia argued that would be beyond the purview of the Court, in an article in First Things about a year ago), overturning Roe would only return the decision on the legality to the states . . . and well over half of them would leave abortion completely legal. Most of the rest would restrict abortion only in the later stages of pregnancy; I doubt that there would be ten states which would make all abortions illegal.

    Yeah, I’d like to see the Supreme Court not only invalidate Roe but declare the unborn child a legal person. But, as is part of the discussion in another section, I’m honest enough to say that would be judicial activism, would be legislating from the bench.

    Dana R. Pico (ba0b64)

  12. Pico,

    You miss my point: Conservative opposition to the Miers nomination is every bit as firm as is your opposition to abortion (or capital punishment).

    How would you like it if Miers was pro-choice and the GOP faithful were telling you to shut up and support her nomination for the good of the Republican Party?

    Black Jack (ee9fe2)

  13. Jack wrote:

    You miss my point: Conservative opposition to the Miers nomination is every bit as firm as is your opposition to abortion (or capital punishment).

    How would you like it if Miers was pro-choice and the GOP faithful were telling you to shut up and support her nomination for the good of the Republican Party?

    You know, I wouldn’t like it very much, but I can’t see myself getting as angry as so many conservatives have over the current nomination. If the nominee were a Roe supporter, but had ideas that were reasonable on other things, I might not like the nominee’s support of abortion, but that wouldn’t have me declaring that I’d rather see the GOP lose in 2008, just to teach it a lesson. The Court is important, but the Court isn’t everything.

    Dana R. Pico (ba0b64)

  14. Do you think that restoring affirmative action to California universities after the passage of Proposition 209 was a controversial topic?

    It would have been controversial indeed, if any such thing had ever happened.

    22 regents voted unanimously to do so in 2001.

    Um … no. What happened in 2001 was that 22 regents voted unanimously to rescind their own pre-209 ban, which everyone knew had now become redundant. When exactly Prop 209 “took effect” is partly a matter of semantics, but the latest conceivable date it can be said to have had its full effect was fall admission season of 1999 – and then only because a few early 1998 admissions decisions may have been made before the Ninth Circuit reversed ACLU “judge” Thelton Henderson in late 1997. By 2001, no one was under any illusion that RE-28 (the resolution to rescind SP-1 and SP-2) would “restore” anything. How “controversial” was RE-28, your readers might ask? So friggin’ “controversial” that even Ward friggin’ Connerly, who led the charge for both SP-1/SP-2 and Prop 209 itself, went along with it.

    The L.A. City Council’s unanimous support of the “uncontroversial” Special Order 40 strikes me as a much better example. However, isn’t Los Angeles a wee bit to the left of Dallas? I’d like to think that a whackjob-left policy that’s relatively uncontroversial among L.A.’s elected politicians (albeit highly controversial in the surrounding, more conservative ‘burbs) might have been a tad more controversial, and a tad less unanimous, if it had been voted on by the Dallas City Council rather than L.A.’s.

    Xrlq (428dfd)

  15. Pico,

    You are entitled to your opinions, and I’m entitled to vote mine. I’m simply giving fair warning that SCOTUS nominations are of overriding consequence to conservatives. If the GOP loses the Senate in 2006 the reason may well be the Miers nomination. I won’t like it one bit, but I’ll live with it.

    Black Jack (ee9fe2)

  16. Jack wrote:

    You are entitled to your opinions, and I’m entitled to vote mine. I’m simply giving fair warning that SCOTUS nominations are of overriding consequence to conservatives. If the GOP loses the Senate in 2006 the reason may well be the Miers nomination. I won’t like it one bit, but I’ll live with it.

    Well, I don’t know in which state you live, and thus don’t know if you have a Senate race in which to vote. I get to choose between Senator Rick Santorum or a pro-life, but otherwise moderate to liberal Democrat, Bob Casey. Given that Mr Casey is pro-life, would you suggest that I vote for Mr Casey, should Miss Miers be confirmed, to express conservative displeasure with the Miers nomination? If you lived in Pennsylvania, would you be voting for Mr Casey for that reason?

    Dana R. Pico (ba0b64)

  17. If Senator Santorum votes to confirm Harriet Miers, I’m sorry to admit I would hold my nose and vote for Casey.

    I have respect for your opinions and I understand your point of view. It would greatly pain me to vote for any Lefty, but this principle comes before politics for me.

    And, I’m a big fan of Senator Rick Santorum, and I live on the Central Coast of California.

    Black Jack (ee9fe2)

  18. More thoughts on the Harriet Miers kerfuffle

    After several updates my previous post on this subject is getting a little long. Guess it’s time to start a new one closer to the top of the page. Juliette Ochieng has a well thought out post on the Miers

    Small Town Veteran (af7df9)

  19. This argument, “since she’s a Christian therefore she will vote pro-life on the Court”, is ABSURD.

    There are just too many evangelicals to whom life is not a big issue and she appears to be one of them. She associates with pro-choice “Christians” and she helped endow a liberal lecture series.

    I am an evangelical Christain and strongly pro-life. She should be. I bet she is not.

    james cothran (fe7785)

  20. Loyalists, Rebels, Dogfaces — and Cowboys

    As usual, Captain Ed absolutely nails the taxonomy of conservatives who are arguing about the nomination of Harriet Miers… but yesterday, he managed to do so in the Washington Post! “Local boy makes good.” Even though I’m based in California…

    Big Lizards (fe7c9d)

  21. Um … no. What happened in 2001 was that 22 regents voted unanimously to rescind their own pre-209 ban, which everyone knew had now become redundant.

    Um . . . yes. What you said is no different from what I said. I said they voted to restore affirmative action, you said they voted to lift a ban on affirmative action. I don’t see a difference, and neither did the students who pushed this in 1999 (after the 9th Circuit decision), saying: “We want SP1 and SP2 (the Regents’ ban on affirmative action) rescinded and affirmative action restored in the UC system.”

    By 2001, no one was under any illusion that RE-28 (the resolution to rescind SP-1 and SP-2) would “restore” anything. How “controversial” was RE-28, your readers might ask? So friggin’ “controversial” that even Ward friggin’ Connerly, who led the charge for both SP-1/SP-2 and Prop 209 itself, went along with it.

    I didn’t say anyone was under that illusion. But they voted to restore affirmative action, just as the Legislature voted recently to allow gay marriage. Neither one had any legal effect, but in both cases the groups hoped it would have some effect — and in any case, that wasn’t my point. My point was the controversial nature of the topic.

    As to Ward friggin’ Connerly, he didn’t friggin’ vote for it because it was friggin’ uncontroversial or because he friggin’ agreed with it. To the friggin’ contrary — it was so controversial, and the vote so meaningless, that he said, in essence: What the hell. I’ll vote for it just because I’m tired of debating it.

    However, isn’t Los Angeles a wee bit to the left of Dallas?

    Sure, especially on a map. That doesn’t make Special Order 40 particularly uncontroversial. Listen to any KFI lately?

    Patterico (4e4b70)

  22. Wake me when you get some competent, admissible, and credible evidence. Woo’s talking about press reports, not first-hand info. He’s a pundit, not a witness, on this. If there’s some basis for thinking this USA Today reporter has first-hand knowledge, or anything other than speculation, it’s not in this blurb (but without having seen the source, I’m just guessing; is anyone else doing more than that?). Does she purport to have a mole inside the Administration’s top-level attorney-client-privileged conferences? I’m still extremely skeptical that a WH speechwriter like Frum — who’s a smart guy, somebody says he has law degree, I dunno, but he was a speechwriter and only there a year, if I were Attorney General or White House Counsel he’s not who I’d invite to the pow-wow — is well placed enough to be reporting on this credibly. Plus his “I like her personally but” rhetoric is in the tradition of “And Brutus is an honorable man”; something slightly off about it, makes me wonder if maybe Ms. Miers whacked him in the dangling participles or something.

    But leave all that aside. The decision what position the Administration would take on the Michigan briefs was transparently a political compromise on a political question. There’s no logical reason for thinking that even if Ms. Miers argued strongly in favor of it, that necessarily corresponds to how she’d approach the same issue from the Supreme Court bench.

    And the firefighter eyeglasses specifications? That’s supposed to be weighty evidence to keep someone off the Supreme Court?

    Thin reeds for such a powerful headline, my friend. I know someone who’d have raised a stink if the LAT had written a headline like this one on the basis of such thin proof — and I’d have gladly joined you in fileting them. :-)

    Beldar (6b6b0a)

  23. And the firefighter eyeglasses specifications? That’s supposed to be weighty evidence to keep someone off the Supreme Court?

    Oh, pardon me. I thought, when the story said the City Council voted for revised minimum height, weight and vision requirements, that the requirements being changed were height, weight, and vision requirements. Thank you for pointing out that it was only vision requirements — a far easier thing to mock.

    And my deepest apologes for claiming that Harriet Miers did support affirmative action in the title. I now see what a big mistake that was, based on slim evidence such as her supporting an agenda item titled: “Implementation of Fire Department Affirmative Action Plan.” I initially misread this support for affirmative action as support for affirmative action.

    I am being more sarcastic to you than usual, but that’s because your comment deserves it. I said nothing inaccurate in the headline, and the affirmative action voted for by the City Council was a lowering of requirements to accommodate women. You have trivialized that issue in order to dismiss it; it is rhetorical trickery rather than sincere argument. Rather unlike you.

    Patterico (4e4b70)

  24. Dear Don Hewitt (NO NO not that “Don Hewitt,” I mean Don Hugh Hewitt, the
    respected head of “the Family” of conservative bloggers): Please take no
    offense by this. But the word is out, never take sides against the Family.
    . .

    (http://hughhewitt.com/archives/2005/10/02-week/index.php#a000323 Hewitt
    questions your loyalty to the Family. You should all be very careful. . .)

    HUGH HEWITT

    You have to answer for Meirs, Frum.

    DAVID FRUM

    Hugh, you got it all wrong…

    HUGH HEWITT

    You fingered Miers for the Kristol people. Ahhh that little farce you played
    over with my sister K-Lo-

    - you think that could fool a Hewitt?

    DAVID FRUM

    Hugh, I’m innocent — I swear on the kids, Hugh — Please, Hugh, don’t do
    this to me.

    HUGH HEWITT (as he pulls up his own chair)

    Sit down.

    DAVID FRUM (sitting)

    Hugh, don’t do this to me, please…

    HUGH HEWITT

    Kristol’s dead. So is Professor Bainbridge — Scott Johnson — Glenn
    Reynolds — Andrew Sullivan — Today I settle all Family business, so don’t
    tell me you’re innocent, Frum. Admit what you did.

    (then, to John Podhoretz)

    Get him a drink.

    (then, to Frum, as Hewitt shifts in his chair)

    Come on. Don’t be afraid, David — Come on, you think I am going to take you
    away from my sister? I’m
    the Blogfather to Goldberg and Podhoretz —

    (then, after Podhoretz hands Frum a glass of wine)

    Go ahead, drink it — drink

    (then, after Frum drinks)

    No — David — you’re out of the Family business, that’s your punishment.
    You’re finished. I’m

    putting you on a plane to Vegas —

    then, to Jonah Goldberg, as he reaches out his hand)

    Jonah?

    (then, after Jonah hands Hewitt a plane ticket, which he hands to Frum)

    I want you to stay there. Understand?

    (then, quietly, after Frum nods and hmmms)

    Only don’t tell me you’re innocent. Because it insults my intelligence —
    and makes me very

    angry…

    (then)

    Now who approached you? Will or Kristol?

    DAVID FRUM (after hesitating)

    It was Kristol.

    HUGH HEWITT

    Good.

    (then, after standing)

    There’s a car waiting for you outside to take you to the airport. I’ll call
    K-Lo to tell her

    what flight you’re on.

    DAVID FRUM (as he rises, starts to protest)

    Hugh, please…

    HUGH HEWITT

    Come on — get outta my sight.

    [Frum turns. Podhoretz helps him put on his coat]

    CUT TO: Hewitt gate. Medved is putting luggage into the rear of the car.
    Frum gets

    into the front seat. -day

    CUT TO: Interior of car. Sean Hannity is seen behind Frum, in the back
    seat. -day

    SEAN HANNITY

    Hello, David…

    CUT TO: The House. Hewitt, Podhoretz, and Goldberg emerge as Goldberg locks
    the door. -day

    CUT TO: Interior of car. Hannity garrotes Frum, who gets pulled back and
    kicks
    his feet

    at the windshield, which breaks as the car takes off. Hewitt, Podhoretz and
    Goldberg watch. After

    the car pulls away, we hear the Title Theme music as they walk through the
    mall. -day

    The Family (7a9f58)

  25. Um . . . yes. What you said is no different from what I said. I said they voted to restore affirmative action, you said they voted to lift a ban on affirmative action.

    That’s because they did vote to lift one of two rules restricting affirmative action (the other being Prop 209), but they didn’t vote to restore affirmative action. Surely you understand the difference between voting to remove a redundant ban on X, on the one hand, and voting to implement X, on the other.

    I don’t see a difference, and neither did the students who pushed this in 1999 (after the 9th Circuit decision), saying: “We want SP1 and SP2 (the Regents’ ban on affirmative action) rescinded and affirmative action restored in the UC system.”

    Interesting logic, that. So if I tell the clerk at Wendy’s, “I want a bacon cheeseburger and fries,” that must mean I think a bacon cheeseburger = fries?

    I’m sure SP 40 is not totally uncontroversial within Los Angeles, but I don’t know that it’s nearly as controversial among Angelenos at large as it is among KFI’s audience, which includes all of Southern California, not just loopy-lib L.A.

    Xrlq (428dfd)

  26. Xrlq, many people believed that Prop. 209 did not affect the Regents, and that repealing SP1 and SP2 would restore affirmative action. Here is an interview with an organizational director for the University of California Student Association from 1999:

    Both policies acted against affirmative action. Specifically, SP1 was to do with enrollment and admissions, and SP2 had to do with contracting and hiring. SP1 and SP2 were approved before Prop 209 in July of 1995 during the summer when students were away. A technicality of SP1 and SP2 versus Prop 209 is that the Board of Regents is the governing body for the UC system and therefore is not accountable to the laws passed by the legislature. They are only accountable to the constitution of the state. So, they could repeal SP1 and SP2 and in fact have affirmative action be in place in spite of Prop 209.

    The Regents were not quite as starry-eyed as that, but they did say in the piece I first linked that they hoped that “the vote might open the way to a shift in some admissions policies.”

    Reading the piece, I have to say I’m glad Hertzberg didn’t try to hug me at the BFL conference. Not that there’s anything wrong with that.

    Patterico (4e4b70)

  27. Who cares what Fabiola Tafolla thinks? That bimbo doesn’t even have the basics right. Not only is she almost certainly wrong in believing that UC Regents can ignore laws passed by the Legislature, she’s really, sorely, hopelessly wrong if she thinks Prop 209 was a law passed by the Legislature, rather than an amendment to that very same Constitution even she concedes the regents are required to follow.

    Xrlq (428dfd)

  28. The bottom line is affirmative action is a controversial topic. Yet the Regents voted 22-0 to [do whatever the hell it is they did that we are pointlessly arguing about].

    Maybe we could put aside the pointless trivia and you could anwer this simple question: is a unanimous vote by a representative body a guarantee that the issue is not controversial?

    Patterico (4e4b70)

  29. No, in the sense that it’s not a fail-safe, ironclad guarantee. But yes, in the sense that unanimity is decent evidence that the issue in question is uncontroversial, which is all I read Dean or Tom’s comments as saying.

    Xrlq (428dfd)

  30. I didn’t have any problem with Dean’s comment, but Tom’s seemed more categorical:

    For one thing, as Dean points out, it IS a unanimous vote, so it’s not like in context these revisions were seen as anything problematic or controversial.

    In any event, I’m getting tired of arguing with people, so whatever.

    Patterico (4e4b70)

  31. Harriet Miers not only supports affirmative action, she embodies it. We are talking about her only because GWB made an affirmative action nomination for SCOTUS.

    Laura Bush asked for a female nominee, Dems wanted another woman to replace SDO, and Harry Reid gave Miers his advance blessing. Trouble is GWB thought her nomination was the easy way out, but he was dead wrong and has run smack into a Katrina style hurricane of conservative opposition. Remember, it wasn’t the initial wind and rain which destroyed NOLA, it was flood waters the levees couldn’t hold back that sank the city.

    Affirmative Action is repugnant to every notion of equality and fair treatment embodied in our Constitution, our history, and our traditions. It is an egregious wrong and ranks with Roe as poisonous to the body politic.

    We need a nominee who can set things right, not someone who owes their very nomination to high office to a corrupt and outworn creed.

    Black Jack (ee9fe2)


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