Miers and Affirmative Action

Marty Lederman

Of the multitude of complaints about Harriet Miers emanating from the right wing of the blogosphere, this must be among the oddest.

The indictment is that Miers not only supports affirmative action in the private sector, but that she is insufficiently skeptical of the constitutionality of affirmative action in the public sector. (The complaint about Miers and affirmative action is a recurring one -- Mike Rappaport even calls it her "smoking gun.") The writer ("Blanton") can't even imagine the "pains" that one would have to endure "to explain how personal support of affirmative action and a conservative judicial philosophy mess." (I assume he/she means "mesh" -- but whatever.)

Well, how about this for starters?:

1. Assuming arguendo that Miers thinks Grutter was basically decided correctly (not that I've seen any firm evidence to that effect), such a position would be consistent with the "original intent" and "original meaning" of the Fourteenth Amendment -- see Jack's posts on this topic here, here and here. (Mind you, it's not that I think original intent and/or meaning are conclusive of the constitutional question -- but Miers's detractors from the right generally purport to care about such things.)

2. It's the position that rejects judicial "activism," in the sense that it refuses to invalidate state decisionmaking. (And for the same reason it's pro-"federalism.")

3. The most that Miers is alleged to have done is to support the very veiled so-called "endorsement" of affirmative action in the government's Grutter brief, which argued that the Michigan program was unconstitutional. I'm not a big fan of the Government's brief in Grutter -- see my initial reactions in the post of January 17, 2003 here -- but that's hardly because it's a ringing endorsement of the constitutionality of affirmative action.

4. Oh, by the way, the Grutter brief that Miers allegedly supported was signed by such flaming liberals as Ted Olson, Paul Clement, and Brian Jones. (No, not that Brian Jones. This Brian Jones -- see here to get a sense of his views on affirmative action.) And, not to put too fine a point on it, but even if (as rumored) that brief does not reflect Olson's personal views, it does reflect the (conservative) President's own perspective on the question. (The President himself has, for instance, been notoriously race-, sex-, and religion-conscious in his own appointments.) How dare he nominate someone who agrees with his constitutional perspective?!

Does that mesh (or "mess")?
Posted 3:38 PM by Marty Lederman [link]