A Weak Justification For Jumping

Jonah Goldberg is a smart guy writing for a smart publication, so how did he get fooled by this?

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.

The Supreme Court nominee's words and actions from the early 1990s, when she held key leadership positions as president-elect and president of the state bar, provide the first window into her personal views on affirmative action, an area in which the Supreme Court is closely divided and where Miers could tip the court's balance.

Reading this, Goldberg threw in the towel and dropped his support for Miers.

I'm with the Editors , Will, Frum, and Krauthammer.

It's not just that Miers was in favor of racial quotas -- we'd pretty much known that for a while. It's the fundamental confirmation that she's a go-along-with-the-crowd establishmentarian. The White House says that her enthusiastic support for goals, timetables and quotas at the Bar Association says nothing about her views on government race policies. Yeah, right. She simultaneously thought what she was doing was great and important while also believing it would be unconstitutional if the government did the same thing.

Yes, it's a big question because differentiating between what seems sensible or good and what is constitutional is exactly what we conservatives are asking Miers to do for the rest of her working life.

So yes, it's not the news I'd like to read. But, and it's an important but, what Miers did 15 years ago for a private organization deserves some questions, but we can't conclude from it that she believes government should do the same thing. In fact, here's how WaPo reports it:

During her tenure, she championed the cause of increasing the number of female and minority lawyers in the bar's own leadership ranks and in law firms across the state, writing that "we are strongest capitalizing on the benefits of our diversity."

Miers was a believer in mentoring programs, but during her tenure she and the board of directors went further, passing a resolution urging Texas law firms to set a goal of hiring one qualified minority lawyer for every 10 new associates. The directors also reiterated support for a policy of setting aside a specific number of seats on the board for women and minorities.

In 1990, only racists weren't championing the advancement of minorities. It's even a good thing to "set a goal" for hiring minorities a crummy one-tenth of the time. In 1990, minorities made up 40% of Texas' population, so a 10% goal is hardly radical.

What Miers did at a private law firm and a private association is a very different thing from federally funded institutions setting hard quotas and enforcing them by discriminating against middle class white kids. So my position is still the same. Bush could have picked someone with more constitutional experience, but that would have just been (as Jim put it) picking nothing but pitchers for a nine-man baseball team.