The mysterious Ms. Miers and affirmative action

Supreme Court nominee Harriet Miers frightened constitutional scholars and lawyers last week when she turned in her Senate Judiciary Committee questionnaire. Describing her service on the Dallas City Council in 1989, she wrote that when the city was sued for allegedly violating the Voting Rights Act, "the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause."

New York University law professor Burt Neuborne told the L.A. Times, "If a first-year law student wrote that and submitted it in class, I would send it back and say it was unacceptable." Stanford law professor Pamela Karlan told the paper that Miers' answer was so shockingly inept that she wondered if the White House was trying to set her up.

Ms. Miers' answer related to her effort to make sure Dallas voting districts were drawn so that some of them were majority-black or majority-Latino, to make it more likely that minorities would be elected to office.

She was attempting to comply with a squishy and ambiguous 1982 amendment to the 1965 Voting Rights Act that said cities could be sued over their election districts if minorities were denied the chance "to elect representatives of their choice....Provided that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion of the population."

Proportional representation means members of minority groups hold office in proportion to their percentage of the total population. If a city is ten percent Latino, for example, and there are ten seats on the city council, one of those seats would have to be held by a Latino politician or else the city could be sued and forced to redraw its election districts. The Supreme Court has held, though not unanimously, that nothing in the U.S. Constitution requires proportional representation.

Ms. Miers' reference to the Equal Protection Clause made some experts think she may have been referring to the 1964 Reynolds v. Sims decision, in which the Supreme Court ruled that election districts had to be drawn so that the population of each district was substantially equal. This was a brand-new idea that had never been part of the Constitution before. In fact, in his autobiography, Chief Justice Earl Warren said he thought Reynolds v. Sims was a more important and revolutionary decision than Brown v. Board of Education.

The effect of Reynolds v. Sims was to lessen the political influence of lightly-populated rural areas (presumably white) and increase the influence of densely-populated urban areas (presumably black). Like Brown v. Board of Education ten years earlier, it was a controversial decision in which the Supreme Court overrode the constitutional authority of the elected branches of government in the belief that lawmakers were using their powers in a racist manner that was not deserving of respect or deference.

This is the pothole that busts the axle of the strict constructionist bandwagon. Chief Justice John Roberts drove around it during his confirmation hearings by stating with a nearly-straight face (just a bit of a smirk) that it was the intention of the framers of the Fourteenth Amendment to ban racial discrimination and school segregation.

As a matter of fact, if facts still matter, the Congress that wrote the Fourteenth Amendment cut language out of the Civil Rights Bill of 1866 that would have banned discrimination in civil rights on the basis of race. Lawmakers were afraid the language might lead the courts to ban school segregation.

If Harriet Miers was squishy and ambiguous in her use of language about racial discrimination, she's not alone.

The truth is that the U.S. Constitution has never been amended to ban racial discrimination, or gender discrimination, and all the Supreme Court decisions and federal laws that say otherwise are grounded in squishy and ambiguous interpretations of equal protection and due process.

That's why her personal views matter. That's why Sen. Ted Kennedy asked John Roberts during his confirmation hearings if he accepts the constitutionality of the 1965 Voting Rights Act and Brown v. Board of Education. All of our anti-discrimination laws are secured in the Constitution by the fantasy interpretation that the Fourteenth Amendment bans discrimination on the basis of race and gender.

It just doesn't.

The people of the United States are about a hundred and thirty-seven years late, but it's still not too late, to amend the Constitution to ban discrimination on the basis of race and gender.

That brings us to the issue of affirmative action.

Today the Washington Post reported that as president of the State Bar of Texas, Harriet Miers supported racial and gender quotas and set-asides to increase diversity hiring in the legal profession. The policy she backed called for ten percent of all new associates hired to be minorities, provided they met the firms' hiring standards.

This is another example of squishiness and ambiguity. The implication of the policy is that all Texas law firms are racist in their hiring practices. There would be no need to order them to hire minorities who meet the firms' hiring standards unless they were turning away qualified applicants because of racism.

If the firms are not racist, then the policy means they must hire unqualified minority applicants and find a way to pretend they are in some way qualified. Otherwise the firms are guilty of racial discrimination against the white applicants who would have been hired if the affirmative action policy wasn't in place.

That brings us to the concept of "diversity."

If "diversity" is itself a hiring standard, then race and gender are qualifications.

The Supreme Court that Harriet Miers hopes to join will be asked to decide whether such affirmative action programs are constitutional.

It is possible that the Supreme Court will rule that diversity is so important, the Constitution permits or even requires racial and gender discrimination to achieve it. It is possible that the Supreme Court will rule that the absence of diversity is sufficient evidence of illegal discrimination.

It is possible.

Is it likely?

That depends on the personal views of the nine justices of the U.S. Supreme Court. If they believe they have a higher moral obligation than their duty to uphold the U.S. Constitution, as the Warren Court did when it handed down its rulings in Brown v. Board of Education and Reynolds v. Sims, the Supreme Court might very well rule that racial discrimination for the purpose of achieving diversity is allowed or required by the due process clauses of the Fifth and Fourteenth Amendments.

Would Harriet Miers vote that way?

"Harriet has built a reputation for fairness and integrity," President Bush said when he nominated her. "Harriet has also earned a reputation for her deep compassion and abiding sense of duty."

It's anybody's guess.

A constitutional amendment to ban discrimination on the basis of race or gender would end the guessing game. If the amendment contained a provision granting Congress and the states the power to remedy past discrimination, affirmative action programs could be preserved. The debate over them would then move out of the courtroom and into the legislatures, where lawmakers aren't permitted to hide their views from the people of the United States.


Copyright 2005

Source notes:

Reynolds v. Sims: 377 U.S. 533 (1964)

Earl Warren's autobiography: The Memoirs of Chief Justice Earl Warren (Garden City; Doubleday & Company, Inc.; 1977)

For detailed notes on the debate over the Fourteenth Amendment and the Civil Rights Bill of 1866, please see How the First Amendment Came to Protect Topless Dancing, the appendix to The 37th Amendment: A Novel

.