- The Washington Times - Monday, October 24, 2005

Harriet Miers apes former liberal Supreme Court Justice Harry Blackmun in saluting racial and gender quotas and set-asides. She disputes the equal opportunity North Star of Associate Justices Antonin Scalia and Clarence Thomas. But President George W. Bush says Miss Miers is a philosophical clone of Justices Scalia and Thomas, and Mr. Bush says conservatives should trust him.

As president-elect and president of the Texas Bar Association in the early 1990s, Miss Miers supported a resolution passed by the board of governors urging law firms to prefer minorities over non-minorities in hiring for five years to make their rosters less monochromatic. Specifically, the resolution summoned firms to set a minority hiring goal of 10 percent, a mandate which board member Alberto Gonzales later characterized as a concrete goal that should be met. (Touting Mr. Gonzales as a trustworthy conservative, President Bush appointed him as White House Counsel. There he fought the Department of Justice against ending racial preferences in admissions in Grutter v. Bollinger (2003). He was rewarded by appointment as attorney general. In flirting with Mr. Gonzales as a Supreme Court nominee, the president has loudly defended his conservative credentials).

Miss Miers retained a state bar policy that set aside four seats on the board of directors for women and minorities. A craving to make the state bar appear more politically correct, not past discrimination, explained the set-aside.

The 10 percent de facto quota and set-aside warred with the equal opportunity creed of President Ronald Reagan’s Department of Justice under Attorneys General William French Smith and Edwin Meese, III. The creed celebrated a color-blind and gender-blind standard in all walks of life both under the Constitution and federal civil rights laws. But President Bush says Miss Miers harbors a conservative legal soul, and Mr. Bush says he has earned the trust of conservatives.

The landmark decision in Regents, University of California v. Bakke (1978) held unconstitutional a racial quota in state medical school admissions. The Supreme Court rejected the argument that racial preferences can be justified to benefit individuals who have never encountered discrimination as retribution or reparations for historical injustices. In contrast, writing in dissent, Justice Harry Blackmun insisted that racism must be practiced (not absolutely forbidden) to get over racism. Miss Miers apparently supported the 10 percent hiring quota and board of directors set-aside to remedy historical discrimination, an objective embraced by Blackmun in contradiction to the Bakke majority. But President Bush insists Miss Miers would be a conservative jurist, and Mr. Bush says his conservatism is unerring.

The 1964 Civil Rights Act, the Magna Charta of equal opportunity, unambiguously prohibits racial discrimination in any term or condition of private employment. The Supreme Court in United Steelworkers v. Weber (1979), nevertheless, sustained a temporary promotion preference for minorities in an industry notorious for past discrimination. Writing for a 5-2 majority including Blackmun, Justice William Brennan (the Toscanini of the Warren Court) invoked the “spirit” of the law and sneered at its text and plain meaning in reaching its preposterous conclusion. Miss Miers’ quota and set-aside support echoes the contrived rationale of Weber. But President Bush avows that she is a conservative in all its moods and tenses, and he says he is a proven conservative.

In Adarand Constructors v. Pena (1995), the Supreme Court held racial preferences in government contracting unconstitutional. It underscored that racial distinctions of any type are odious to a free people. In a riveting concurring opinion, Justice Scalia amplified: “Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or debtor race. That concept is alien to the Constitution’s focus on the individual, and its rejections of dispositions based on race. To pursue the concept of racial entitlement — even for the most admirable and benign purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are but one race here. It is American.”

Miss Miers’ support of racial preferences and set asides pivots on the mentality Justice Scalia deplored. But President Bush pontificates that Miss Miers will carry a conservative legal philosophy into the Supreme Court’s cloister, and the president says his conservative credentials are spotless.

In Grutter, Justice Sandra Day O’Connor, writing for a 5-4 majority, upheld racial preferences in admissions to institutions of higher education in the name of campus diversity. The associate justice outlandishly reasoned that the Equal Protection Clause might be suspended for 25 years to permit educators and social engineers leeway in solving the problem of race. Miss Miers’ applause for quotas and set-asides betrays the same race-based thinking.

I fear I may have wronged Mr. Bush over Miss Miers. But isn’t a conservative judicial philosophy made of sterner and different stuff?

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has published an “Advice & Consent Handbook” on Supreme Court appointments and the judicial filibuster.

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