October 23, 2005

Why Miers' Support of Private Sector Affirmative Action Programs Does Matter

Hugh Hewitt, conservative radio icon and fellow blogger, has come out in support of the Miers nomination.

In response to the revelations found in the Washington Post yesterday that Harriet Miers was an advocate and supporter of racial quotas,racial preferences and racial set-asides while President of the Texas Bar, Hugh Hewitt "blows off" those concerns. Essentially, Hugh Hewitt argues that, since Harriet Miers was the head of a private organization and not a governmental entity, that this support is irrelevant to questions of constitutional law (i.e., whether or not a Justice Miers would believe such actions, if taken by government, to be constitutional):

I see many on the web are exercised about Harriet Miers' support for affirmative action in the private setting of support for resolutions of the Texas Bar urging quotas in hiring at private law firms. It is not a policy with which I would agree either, but it also not a matter of constitutional law, unless under Brentwood the action of the Texas Bar in urging private firms to set strict goals has converted into a state action. Don't know what Brentwood is? Or the state action doctrine? Not many people do. But those that don't ought not to be confusing ConLaw with the private decisions of private firms while arguing that this policy makes Miers suspect on Bollinger. Now, if she supported a soft line on the Bollinger cases, that would be a legitimate area of concern, but not the Texas Bar resolutions.)

As a preface to my response, let me say that I respect Hugh Hewitt and he has every right to his opinion.

Hugh Hewitt could not be more wrong.

It is true that the Texas Bar Association is a private entity and not a governmental body. As such, the Equal Protection Clause of the Fifth and Fourteenth Amendments would not be violated by such actions.

However, it is useful to keep in mind the following:
  1. Conservatives are not upset at Ms. Miers' support of racial quotas, preferences and set-asides on the basis that she previously supported something that would violate the strict terms of the Constitution. Rather, conservatives are upset because she supported something that is fundamentally wrong and offends the underlying principles behind the Equal Protection Clause.
  2. While the Fifth and Fourteenth Amendment's Equal Protection guarantees might not be at issue, the federal government has enacted statutes that make private discrimination illegal. Affirmative action is admittedly reverse discrimination. As a Supreme Court Justice, Ms. Miers would be placed into a situation where she would be ruling on the legality and propriety of various private sector affirmative action programs under these statutes. If she was an ardent supporter of such programs previously, what would lead us to believe that she will not be predisposed to rule in favor of such programs? Wouldn't it be logical to assume that she would still consider diversity, by itself, an important (and possibly compelling) interest?
  3. Americans know little about Ms. Miers' views on the issues that will be before the Supreme Court. Why shouldn't we view her previous support of such programs as an indication of how she would rule if the issue were before the Supreme Court? After all, we have no judicial record to the contrary... Isn't this what supporters of Miers have also done? The supporters of Miers have latched onto the notion that she is an evangelical Christian, who does not believe in abortion. As such, the religious right and anti-abortion groups have been told to support the nomination because she would likely vote to overturn Roe v. Wade or otherwise restrict abortion based on her private political beliefs. Yet, we have nothing in her public record that would otherwise prove she would translate these private political beliefs into a vote in favor of restrictions against or an outright ban on abortion. She has never sought a governmental ban on abortion as far as I have seen. So, clearly, aren't the pro-Miers people attempting to translate her private political beliefs into an indicator of what her future judicial decisions would be?
  4. The Supreme Court is divided on the propriety of affirmative action programs. Ms. Miers could represent the swing vote in favor of such programs. As such, those that are concerned about the continued existence of affirmative action programs have every right to be concerned that a supporter of such programs has just been nominated to the Supreme Court.
  5. The legality of affirmative action programs now hinges on whether the programs can meet the strict scrutiny test. Put simply, an affirmative action program may only be implemented to achieve a compelling interest. If Miers supports affirmative action programs and the goals of "diversity", then she could easily vote in favor of such programs by finding that diversity represents a compelling interest. Clearly, if she is an ardent supporter of affirmative action programs, then she would believe that diversity is a compelling interest.
Jonah Goldberg takes issue to Mr. Hewitt's remarks as well:

Piffle. If reports are to be believed Miers argued -- along with her old bar association, pro-affirmative action chum and pal, Alberto Gonzales -- that the White House shouldn't oppose racial quotas aggressively. Instead the White House punted by arguing a narrow aspect of the law and lending little to no support to the anti-quota side. In other words, she did in fact take a soft line on the Bollinger case, which Hewitt admits would be a legitimate reason for concern.

(Or at least that is the charge that many with first hand experience have made. And this White House, as far as I know, has not attempted even once to dispute it.)

So let us concede that her views in this area constitute a legitimate concern. In this context, i.e. we are already legitimately concerned, we find out that Miers was an aggressive supporter of quotas on as the head of a state-affiliated agency (the Texas Bar). We find out she used all of the language, set all of the policies and took all of the positions consistent with a conventional establishmentarian, go-along, get-along, country club Republican on racial quotas and affirmative action. But, alas, if we can't debate the Brentwood decision with Hugh adequately we have no claim to concern about this at all. Why? Because such a policy has nothing to do with "ConLaw." This strikes me as piffle-squared. How a reasonable person could read the Washington Post story yesterday and then with a straight face say it's not a disturbing indication of how she'd vote is beyond me. If Miers had been found out to have been a virulent racist in the early nineties, do you think the argument that those views were irrelevant to how she'd vote would hold water?

I might add that as we don't know jack about what Miers' view on ConLaw is, we have to go with what we know. And what we know is that Miers agrees with the logic of quotas and affirmative action as a moral good. That's troubling enough, even if you buy Hewitt's magical high wall between Miers' constitutional views and her personal views. But let's assume Hewitt is right and this has absolutely nothing, one way or the other, to do with constitutional law. Fine. But as a simple matter of morality, we know that Miers is convinced of the pro-quota side.

So now Hugh is telling us not to worry about her private political views, they are meaningless (even as she pushed the White House to go soft on Bollinger). Meanwhile, Miers' supporters have been arguing for two weeks that Miers is privately opposed to abortion and that should be good enough indication about how she'd vote on Roe. So which is it? Why should we believe Hewitt that Miers will keep her private views to herself (even though she hasn't in the past) on race, but she'll take her private views on abortion to the bank?

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