October 06, 2005

Miers Is a Supporter of Affirmative Action

More information about Harriet Miers is coming out. Evidently, Ms. Miers is quite the "progressive" when it comes to affirmative action:

WASHINGTON - In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city's political structure.

In the same testimony, Miers, then a member of the council, said she believed that the city should divest its South African financial holdings and work to boost economic development in poor and minority areas. She also said she "wouldn't belong to the Federalist Society" or other "politically charged" groups because they "seem to color your view one way or another

Miers' thoughts about racial diversity placed her squarely on the progressive side of the 1990 suit, which was pivotal in shifting power in Dallas politics to groups outside the traditional, mostly white establishment.

And some constitutional scholars say that if Miers were to embrace the same views as a justice on the high court, she would fall more in line with the court's pragmatic, moderate wing than with its doctrinaire extremes.

"There's an acknowledgement in her comments that race matters and is relevant, and from a fairness standpoint, we should acknowledge the impact of a particular political structure on voters of color," said George Washington University law professor Spencer Overton, a voting rights expert. "It's not unlike something you could see Justice Sandra Day O'Connor saying. A rigid quota system may be bad, but diversity is a compelling interest, and we want institutions to reflect society as a whole."

This is very disturbing. I cannot imagine this will do much to soothe the Republican's concerns over Ms. Mier's nominations.

If this is true - that Harriet Miers is a supporter of affirmative action - then I must declare that I am no longer on the fence with respect to her nomination. I would actively opppose the nomination.

The Equal Protection Clause guarantees that the government shall not deny an individual the equal protection of the law. Accordingly, America needs to ensure equal opportunity for all - regardless of the color of their skin. However, affirmative action programs are not the way to accomplish the goal of equal opportunity. Instead, affirmative action programs actively and unashamedly discriminate against members of one race in favor of another race - thus, offending and trampling upon the fundamental principle of "equal protection".

Affirmative action programs are based upon the theory that past discrimination by the majority race against certain racial minorities justifies currrent discrimination against the members of the majority race. Essentially, these programs are nothing more than "payback" to the minority race for past discrimination by the majority race. As Justice Antonin Scalia correctly opined in Adarand Constructors v. Pena, the concept of a "debtor race" is not compatible with the Constitution's focus on individuals and individual rights.

On numerous occasions, the United States Supreme Court has recognized the suspect nature of racial criteria and has expressed an unwillingness to allow the government to use such criteria unless the government actions are narrowly tailored to a compelling governmental interest. This follows from both the nature of racial classifications and their inherent inconsistency with the principles of the equal protection guarantees of the Fifth and Fourteenth Amendments.

Accordingly, equal protection demands that the government should not be permitted to deny rights to similarly situated individuals solely based upon their race unless there is a compelling interest.

Diversity is important. However, "Diversity" is not a compelling interest - "Equal Opportunity" is the compelling interest.

The belief that diversity is a compelling interest in itself would allow the government's use of quotas, preferential treatment based upon race and outright discrimination against members of the "majority" race to accomplish nothing more than numerical goals or satisfy racial politics.

While the deplorable situation of racial discrimination against minorities in this country justifies action, discrimination against non-minorities based on their racial status will only provoke further hostility among the races. Although the goals behind affirmative action are commendable, the use of racial preferences is plainly impermissible under the Constitution's equal protection guarantees.

How do you accomplish equal opportunity? Instead of resorting to race based remedial programs, the governmenty may help minorities by fashioning race-neutral programs. As minorities are disproportionately economically disadvantaged, any race neutral programs at assisting the disadvantaged would disproportionately benefit minorities.

| |

<< Home