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.
Her tenure at the bar association also could provide new fodder for conservatives opposed to her nomination, as President Bush seeks to quell a rebellion on the right over his selection of Miers.
To some conservatives, the types of policies pursued by the Texas bar association amount to reverse discrimination. One of the chief complaints on the right against Attorney General Alberto R. Gonzales was that he clashed with conservatives who wanted to take a harder line against affirmative action.
Miers, the first female president of the Texas bar, vowed in her first interview with the Texas Law Journal as president to “be inclusive of women and minorities.”
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.”
“Those are quotas,” said Roger Clegg, the general counsel for the Center for Equal Opportunity, a conservative group opposed to affirmative action. The fact that Miers “did not create the quota systems but only perpetuated and endorsed it doesn’t make it less disturbing,” he said.
The person who was the primary mover behind the policy that set hiring goals for law firms was Gonzales, who at the time served on the state bar board with Miers. Back then, minority lawyers made up fewer than 5 percent of the associates at the state’s 18 largest law firms, according to board records.
John Yoo, a conservative law professor at University of California at Berkeley who served as deputy assistant attorney general during President Bush’s first term, said the fact that Miers did not object to the policy “is another worrying sign that her real views on the kind of issues she’ll decide on the Supreme Court are not as conservative as President Bush suggests.”
“When you start setting numbers like that, you can call it a goal or anything else, but it smells like a quota,” he said. “The message is pretty clear—you are encouraging hiring based on race.”