Meirs: The Last Straw

I'm officially anti-Miers.

My initial reaction to the nomination was one of supreme annoyance with President Bush, not because I was sure he had made a mistake, but because I couldn't believe he was willing to leave anything to chance, in spite of Republican control of the House, the Senate, the White House, the majority of Governor's seats, etc. But of course I did not impute Bush's flub to Meirs herself, because hey, I didn't know anything about her. I might as well reserve judgment concerning the nominee until further information should present itself.

I've got enough info now, thank you very much.

The link is to a Washington Post article which begins: "As president of the State Bar of Texas, Harriet Miers wrote that 'our legal community must reflect our population as a whole,' and under her leadership the organization embraced racial and gender set-asides and set numerical targets to achieve that goal."

This is one statement on top of a consistently weak defense of the nomination by the Bush administration, revelations that she wouldn't join the Federalist Society (because it's "too political) but that she heaped praise upon the -- er, apolitical? -- NAACP, ambiguous statements concerning abortion (which, even viewed most favorably to her, say nothing about her opinions on the legal underpinnings of Roe), language that almost exactly tracks with O'Connor's opinion in Planned Parenthood v. Casey (upholding Roe)...

At some point I gotta say enough is enough. I've reached that point.

I've argued before that limited affirmative action, done properly, may be both socially beneficial and constitutionally sound. I proposed what I later learned is termed race-neutral alternatives, by which preferences are set forth based on non-racial, economic factors, with the assumption that economic disparity, which tends to align along racial lines, will as an incidental matter benefit racial minorities. The benefit of such a system is that it is naturally self-correcting, because as racial inequalities ameliorate, a system that gives preference to economic will have an increasingly race-neutral effect. In my view, this is a far superior system to that adopted by O'Conner in the Michigan law school cases, in which she arbitrarily picked a term of years and stated that race-based preferences are constitutional for twenty-five years (that's the kind of garbage that makes me have no respect whatsoever for O'Connor's judicial "philosophy," such as it is).

Clearly, then, affirmative action is more than simply an either/or proposition. On one end of the spectrum, one may argue that the Equal Protection clause requires absolutely no nods to race whatsoever, under any circumstances. On the other end is an absolute numerical set-aside. In the middle lie the race-neutral alternatives theory, and what I will term the prefence theory, whereby race is a plus factor, rather than an absolute (i.e., it is a tie-breaker among equally-qualified candidates, rather than an absoulte "we need X number of black students" kind of thing).

Note that, of the alternatives roughly sketched out, Meirs apparently adopts the most liberal possible option. It is utterly unsupportable by the language or history of the Constitution's Equal Protection clause. It is the anti-textualist, "living-breathing" approach so abhorred by judicial conservatives. It is utterly inappropriate even for a Democrat nominee. That it comes from George W. Bush, who promised us more Scalias and Thomases, makes it vastly more inappropriate. I have therefore left neutral ground -- Meirs and her supporters now carry an extremely heavy burden of persuasion to garner my support, and I frankly doubt it can happen.

'Cause, you know, I'm pretty sure she reads my blog...