Patterico's Pontifications

10/22/2005

Postcards from the Ledge: Miers Supported Affirmative Action Set-Asides

Filed under: Judiciary — Patterico @ 12:02 pm



[“Postcards from the Ledge” is a semi-regular feature of this site, detailing revelations about Harriet Miers that have driven your gentle host out onto the window ledge.]

I’m still on the ledge. And I have no intention of coming back in — so don’t try to make me!

Here’s the latest reason for my distress: the Washington Post reports today that Harriet Miers favored set-asides for minorities and women while on the Texas State Bar. I had previously noted Miers’s effusive praise for what she considered the imperative of diversity, and the similarity of that rhetoric to that in Justice O’Connor’s opinion upholding affirmative action in Grutter. But this is the first evidence I have seen that she positively favored set-asides.

The set-asides that Miers supported were apparently private set-asides. But today’s article is circumstantial evidence that corroborates previous reports that Miers argued for the Administration position in Grutter, which dealt with affirmative action by the Government.

As I have said before: she’s Alberto Gonzales in a dress.

Folks, this gets worse with each passing day. I was considering coming in from the ledge after people argued that Miers might be merely sloppy with her language, rather than criminally ignorant of the terms of the Constitution. But reports like this don’t do anything to coax me inside.

You shouldn’t have let me bring a computer out here.

UPDATE: More from Captain Ed, and snark from Jeff Goldstein.

UPDATE x2: Ed notes that the Texas State Bar’s policy of encouraging set-asides did have an aspect of governmental involvement:

However, the White House has it incorrect when they claim this as a private enterprise issue. No one can practice law in Texas or anywhere else without membership in the Bar. That doesn’t mean that firms have to remain active in the association, but it doesn’t exactly make the Texas State Bar a voluntary association, either. The government in every state relies heavily on bar associations to license attorneys. That lends an official tenor to the actions of these groups that the Kiwanis or the Elks do not get.

It’s also worth noting that, according to its own web site, the Texas State Bar is “an administrative agency of the judicial branch in Texas.”

22 Responses to “Postcards from the Ledge: Miers Supported Affirmative Action Set-Asides”

  1. So, Harriet Miers supported both Affirmative Action and race based set-asides. Seems like Miers is best suited for Ruth Bader Ginsburg’s old job rather than her current one. Miers would fit right in at the ACLU.

    Let those who have defended the Miers nomination chew on this latest revelation a bit and either call for her to withdraw, or step up now and explain how her support for government sponsored programs enforcing defacto racism qualifies her for SCOTUS.

    Black Jack (ee9fe2)

  2. Harriet Miers Watch: Supports Affirmative Action?

    U.S. Supreme Court nominee Harriet Miers sits in the office of Senator Ken Salazar (D-CO) on Capitol Hill in Washington, DC, October 20, 2005.
    Reuters has Miers supported affirmative action: paper.
    U.S. Supreme Court nominee Harriet Miers supported …

    FullosseousFlap's Dental Blog (baa0b4)

  3. Black Jack,

    Bush apparently decided to “replace” O’Connor with as literal a duplicate as he could find, and one even less aware of Con Law.

    What a disaster!

    Ernest Brown (9b65f2)

  4. Now, is money speech?

    Kevin Murphy (6a7945)

  5. SCOTUS nominee Harriet Miers showcases her political pragmatism by avoiding a tough ideological choice at the McDonald's drive-thru window, 2

    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're leveling the gustat…

    protein wisdom (c0db44)

  6. Don’t jump yet. But this is the kind of issue those of us concerned about the Court and federalism should be worried about, not trying to figure out whether there’s a difference between proportionate and proportional. That one sounded way to much like trying to figure out what the meaning of “is” is, and that’s, well, unbecoming, if you know what I mean.

    [I understand what you’re saying, but at the same time, I’m getting a little tired of defending my position on it. Did you see the LAT story I linked earlier? I’d sure like you to comment on it. Several named election law experts were baffled and highly critical. So 1) I don’t think it was strange for me to be flummoxed at first, and 2) for the umpteenth time, I was slightly relieved by interpretations like yours — which I had invited readers to submit — but not entirely. Because, as I said in my post on the LAT article, it is not a good thing for a Supreme Court nominee to phrase legal issues in a way that confounds the experts. — P]

    TNugent (551e91)

  7. Meanwhile, at the Corner

    Jonah Goldberg takes down Hewitt’s claim that Miers’s heavy-handed diversity policies while President of the TBA cannot be considered as evidence of her judicial views on affirmative action . . .

    Chateau D'If (59ce3a)

  8. Patterico, I’ll admit that the criticism of “proportional” should be considered in the context of Miers’ appearing to have only a very basic understanding of constitutional issues and, more importantly, the near absolute absence of any substantive justifications offered for her nomination. With that said, however, it does seem that the reaction to that particular remark had more to do with the fact that such a supposed heavyweight was leading the charge. When Sunstein said she probably just confused “proportional” with one man – one vote, the emphasis, whether or not he intended it, was on “confused,” at least in the ears of most of the conservative commentators already inclined to oppose the nomination. Had Sunstein merely said that Miers misspoke, using proportional rather than “proportionate” (a word that appears over and over again in EarlWarrenBurger’s opinion in Reynolds v. Sims, btw), I don’t think this would have been such a big deal, and arguments such as mine would sure sound a lot more persuasive. But because he said “confused” the conclusion is that Miers is confused on constitutional issues. Which may very well be true, even if I don’t think her choice of words in that instance tends to prove that point.

    I still think most damning evidence against Miers is the positions her boss has taken on issues that required (or should have required) him to decide whether particilar actions were within the limits of gov’t power under the constitution. The two most striking examples being, as you’ve pointed out, the signing of McCain-Feingold and supporting the UMich position in the Grutter case. Arguably, the administration’s positions in certain GWOT cases involving US citizens (Hamdi, for example) also suggest an inclination to push the constitutional envelope that now contains gov’t power, especially federal gov’t power. I won’t presume that the Court was wrong and Scalia was right in Hamdi. Reasonable constitutional scholars can (and did) disagree on whether Scalia’s dissent in Hamdi should have been the Court’s opinion. Nevertheless, it’s worth considering that cases like that one may very well be why he wants HIS lawyer on the Court — if he can’t depend on Roberts to rule the same way Rehnquist did(who knows?), can he afford another justice who’ll vote like Scalia and, importantly, who’ll have the intellectual muscle to persuade another justice rule against the gov’t? If only for the sake of separation of powers, the Senate Judiciary Committee needs to give Miers a thumbs down.

    TNugent (6128b4)

  9. Pointing out Miers’s (past?) support for preferences is a fair criticism, but Captain Ed’s state action argument is a reach. From the story you linked, it appears that all the Texas Bar did was encouraged private firms to practice affirmative action. They didn’t use any of their quasi-governmental powers to make it any more “encouraging,” e.g., take race into account when deciding whom to admit, sanction firms that don’t practice AA, etc.

    BTW, it seems a bit odd to pooh-pooh Miers’s explicit 16-year old (moral and constitutional) opposition to abortion in one post, only to make a huge deal of her tacit 13-year old support of (privatem a-constitutional) affirmative action in another. If you must jump off the ledge, fine, but at least pick one ledge and stick to it. You can’t jump off both.

    Xrlq (428dfd)

  10. From the story you linked, it appears that all the Texas Bar did was encouraged private firms to practice affirmative action.

    Really? I’d be interested to see how you square that assertion with this quote from the story: “The directors also reiterated support for a policy of setting aside a specific number of seats on the board for women and minorities.”

    BTW, it seems a bit odd to pooh-pooh Miers’s explicit 16-year old (moral and constitutional) opposition to abortion in one post, only to make a huge deal of her tacit 13-year old support of (privatem a-constitutional) affirmative action in another. If you must jump off the ledge, fine, but at least pick one ledge and stick to it. You can’t jump off both.

    Where do you see that she has an explicit “constitutional” opposition to abortion??? What does that even mean?

    I’ve watched past nominees claim that they were against abortion and then vote in favor of Casey. Contrary to your assertion in another comment, Justices do indeed personally oppose abortion but vote to uphold abortion laws, Kennedy and O’Connor being cases in point. All they need do is invoke precedent.

    I’d feel worse if I knew she supported abortion as a moral matter, but I’m not totally reassured if she opposes it, because I’ve watched too many other Justices follow the same path.

    Her support for affirmative action, which reportedly extended to arguing for the Administration position in the Michigan cases, concerns me because 1) those who support affirmative action tend not to be judicial conservatives and therefore 2) tend to bend the law to accommodate their personal beliefs on the issue. Those same Justices (O’Connor being an example) show no proclivity to bend the law to enforce their personal position on abortion, nor do I want them to. I want them to follow the law, meaning the Constitution.

    In short, personal beliefs should be irrelevant. But they aren’t always.

    Note that the Hewitts pooh-pooh her support for affirmative action but tout her personal opposition to abortion. My position is not contradictory because of the history of Justices with similar views, as I just explained. How do the Hewitts explain *their* contradiction?

    Patterico (4e4b70)

  11. Really? I’d be interested to see how you square that assertion with this quote from the story: “The directors also reiterated support for a policy of setting aside a specific number of seats on the board for women and minorities.”

    I was focusing on the resolution they passed, not the policy they “reiterated support for,” which sounded to me more like a non-binding resolution. I agree that if that was the policy, that is more troubling than simply encouraging private firms to do their own thing. I still think Ed’s arguments (or at least the ones you quoted here) are strained, however. Yes, you have to be a bar member to practice law. No, a policy of set-asides for board memberships does not improve or diminish anyone’s chances of becoming or remaining a bar member in good standing – at all.

    Where do you see that she has an explicit “constitutional” opposition to abortion??? What does that even mean?

    Part of it in Question 1, where she promised to support a constitutional amendment that prohibited abortion rather than merely allowing the states to do so. More of it in Question 2, where she promised to take full of advantage of Roe being reversed, if it was reversed. Anyone who thought Roe was decided correctly could not have answered it that way without effectively saying “I promise to oppose the Constitution whenever I think the courts will let me get away with it.”

    Contrary to your assertion in another comment, Justices do indeed personally oppose abortion but vote to uphold abortion laws, Kennedy and O’Connor being cases in point. All they need do is invoke precedent.

    Both examples are bogus. O’Connor was a vocal opponent of both abortion and Roe when she took office, and is now an ardent supporter of both. If all she did was invoke precedent, she’d have voted as she did in Casey but not Stenberg, which went not only against Court precedent but also against O’Connor’s own precedent of splitting the baby figuratively rather than literally. I don’t know how Kennedy feels/felt about abortion personally, but I do know how he feels about precedent (see Lawrence v. Texas) and also understand from Blackmun’s memoirs that he was a solid Roe opponent until sometime after the oral arguments in Casey itself. So both are examples of being holding one view at one point in time, and a sharply different view at another. Neither supports the silly notion that one can sincerely be anti-abortion and pro-Roe simultaneously. [I included the word “sincerely” because countless nominally Catholic liberal Democrats do claim to be both, but they are lying when they say they personally oppose abortion. I trust you are NOT arguing that Miers was pulling a Kerry when she claimed to oppose abortion in 1989.]

    Hewitt’s position, if you have characterized it accurately, is equally contradictory. Then again, if your position is “not contradictory” because some Justices opposed abortion at one time and reaffirmed Roe at another, then neither is Hewitt’s. People change their minds on every controversial issue in the book, not just abortion. Case in point: Justice Stevens was the author of the anti-affirmative action opinion in Bakke, but voted with the pro-affirmative action group in Gratz and Grutter.

    Xrlq (428dfd)

  12. In a purely abstract world, my positions might be as logically inconsistent as Hewitt’s. In the real world, they’re not, because of the evidence of numerous Justices’ past behavior.

    Historically, Justices drift to the left, not to the right. So if they start out to the left, I am concerned. If they start out to the right — but so have other Justices on the same issue, only to veer left — then I am not totally reassured.

    Your argument is that I shouldn’t worry if they start out to the left, because they might drift right (never happens). But if they start out to the right, we can relax, because they’ll certainly stay there (not necessarily).

    Patterico (4e4b70)

  13. Patterico, I’m a judicial drift skeptic. IMO, it’s no more real than global warming caused by human activity.

    What I think usually happens is that those apparently drifting Justices are actually freed from the burdens of electoral or appointment politics, not to mention the ever-present threat of reversal on appeal (for those who come from other courts), and are thereby enabled and emboldened to follow what had always been their inclination to play at philosopher-king and lead the nation to a better way. It takes a Justice with a determinedly philosophical approach to interpreting the constition and laws to resist the temptation to do this. Scalia appears to be one, but let’s not forget that it’s easier for a dissenting justice, as Scalia so often is, to march to his own beat. As a frequent dissenter, Scalia doesn’t often have to build consensus, whereas a justice who votes with the majority needs to make his or her opinion palatable to others in the majority (including the Chief, if the Chief is in the majority), if that opinion is to be the Court’s opinion, and thereby influence future decisions (not that I’m complaining about Scalia — the Court needs a voice in the wilderness, and I’d rather him be there than have him join the others in the easy comfort of our anti-Constitutional status quo).

    From my point of view, which is certainly that of an interested observer and not an insider, the reason Roberts is so promising is that, at this time anyway, he appears to bring both qualities to the Court. Miers would seem to bring neither.

    TNugent (6128b4)

  14. The phenomenon of judicial drift is well-documented. A classic example is Blackmun’s early support for the death penalty, which drifted into his famous statement that he would not longer “tinker with the machinery of death.”

    Patterico (ddf04a)

  15. My views on judicial drift are not in line with conventional wisdom, but I think that the conventional wisdom fails to distinguish between political philosophy and judicial philosophy. Blackmun certainly changed his position on capital punishment, but I would distinguish a mere position change on an issue from a change in philosophy, and it seems that the latter is required to demonstrate meaningful judicial drift. His opinion in Roe came only a year after his dissent in Furman — if he moved, he didn’t drift, he put pointed the ship toward activism and hit the gas. Do you really think there was any room for Blackmun to drift after Roe? Let’s not discount the possibility that he was never really a judicial conservative, but was always inclined to rule in favor of policies he preferred.

    TNugent (6128b4)

  16. Historically, Justices drift to the left, not to the right.

    This isn’t physics, and there isn’t any gravitational pull to the “left,” the “right,” or in any other particular direction, on the bench or anywhere else. While serving on the Supreme Court, Byron White drifted well to the right. Off the bench, Clarence Thomas drifted far to the rightm, starting out roughly as a Black Panther IIRC. Other Justices drift in other directions, just like the rest of us do over time. Maybe Miers will drift to the left on abortion and stay put on affirmative action. Maybe she’ll drift to the right on affirmative action and stay put on abortion. Maybe she’ll drift on both. Maybe she’ll drift on neither. It’s silly to argue that any of these possibilities are more likely than the others, except to say that given her age, it’s most likely she won’t drift at all.

    Xrlq (ffb240)

  17. This isn’t physics, and there isn’t any gravitational pull to the “left,” the “right,” or in any other particular direction, on the bench or anywhere else.

    The common denominator is the natural inclination to increase one’s own power when possible. For judges, that translates to a temptation to subscribe to open-ended doctrines. In the current climate, that translates to drifting to the left. In other times, it would have meant a drift to the right. My comments about left and right are the shorthand of a lawyer in trial who has argued these issues in detail before and thought his readers understood the underlying principles.

    Patterico (a86064)

  18. I don’t think it’s toward open-ended doctrines, either. People drift in all directions. I don’t know of any evidence Byron White drifted toward a version of “conservatism” that was more open-ended than “liberalism” was at the time of his appointment. His dissent in Roe and his solid opposition to affirmative action in Bakke suggest precisely the opposite.

    My comments about left and right are the shorthand of a lawyer in trial who has argued these issues in detail before and thought his readers understood the underlying principles.

    Is that anything like the “shorthand” of a lawyer who uses the phrase “proportional representation requirement” to imply that something requires representation to be proportional?

    Xrlq (e2795d)

  19. The issue was muddy under Section 2 of the the Voting Rights Act and still is. I think that the political argument here is about pre-existing, still-existing procedural obstacles to full recognition of voter results. I do want to go into discussing all of the schemes that were set up to dilute minority voter strength in elections/city boundaries/etc. But they were there and the DOJ prosecuted some — included Dallas while Ms. Miers was a council member.

    Neil J. Lehto (77bed1)

  20. I don’t know of any evidence Byron White drifted toward a version of “conservatism” that was more open-ended than “liberalism” was at the time of his appointment.

    Could you provide some evidence of his early liberal decisions?

    Is that anything like the “shorthand” of a lawyer who uses the phrase “proportional representation requirement” to imply that something requires representation to be proportional?

    Exactly! The parallels between a D.A. dashing off a comment on a blog before running off to trial and Harriet Miers filling out a questionnaire to be a member of the Supreme Court . . . why, the parallels are just astounding.

    Patterico (8f160f)

  21. I’m not an expert on White, but I’m pretty sure that by the time Roe was decided he’d come to regret his earlier support of Griswold.

    Xrlq (ffb240)


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