Jeff Goldstein at Protein Wisdom notes that Harriet Miers has a clear track record of supporting racial preferences favoring minorities and women, at least in some circumstances. Unlike most of Miers’ other views, the evidence here doesn’t come primarily from 15 years ago. Miers apparently supported, and perhaps helped the influence, the administration’s position in the University of Michigan affirmative actions, which we strongly criticized at the time.
It’s important to remember, however, that President Bush also supports preferential affirmative action to the extent reflected in the University of Michigan briefs. In fact, the briefs tout the approach to preferences used by the Texas university system when Bush was governor (a less overt form of preference than the one the O’Connor-led Court embraced in the Michigan cases).
Conservatives should be unhappy that Bush nominated someone who comes out on the wrong side of the affirmative action debate. But it’s difficult to argue that the nomination of someone who agrees with the president’s position on this issue constitutes an outrage or a betrayal. Bush never promised a nominee who agrees with every important conservative position. He promised a nominee who approaches the job the way Justices Scalia and Thomas do (and these two Justices don’t agree on every substantive issue). There’s no reason to believe that Bush didn’t attempt to appoint such a nominee. Whether he has succeeded remains to be seen. But Miers’ position on affirmative action doesn’t demonstrate that he has failed.
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