A Stitch in Haste

Here is a sampling of the kind of questions I would like to see Harriet Miers asked during her confirmation hearings:

--In the 1990s, as president-elect and president of the State Bar of Texas, you advocated "affirmative action" policies including racial set asides in private law practices. Given the Supreme Court's recent holdings in Grutter v. Bolinger, No. 02-241, 539 U.S. 244 (2003) and Gratz v. Bollinger, No. 02-516, 539 U.S. 244 (2003), do you think such set asides would be constitutional today? Also, please remind us how the facts differed between Gratz and Grutter and how those different facts led the Court to reach different decisions.

--A key premise in current Supreme Court affirmative action jurisprudence is that achieving racial diversity in higher education, including law schools, is a "compelling state interest." Do you consider achieving racial diversity in the legal community generally, and private law practices specifically, to be a "compelling state interest" in the constitutional sense of that term?

--Is the State Bar of Texas a "state actor"? Why or why not?

--Justice O'Connor wrote in Bollinger that "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Given that you might be on the Court in 2028, would you consider Bollinger as having "expired" or at least subject to less deference under the doctrine of stare decisis at that time?

--Gratz v. Bollinger and Grutter v. Bollinger drew heavily from the famous educational affirmative action case University of California Regents v. Bakke, 438 U.S. 265 (1978). Please remind us what the facts of that case were and what the Court held.

--You have been described as a "pathbreaker" for women in the legal profession. As president of the State Bar of Texas, when you referred to "minorities," did you mean women as well as racial minorities? Would you include women as "minorities" today, either in the legal profession or in society generally? And can you remind us, precisely, how current equal protection analysis distinguishes between race and gender? Please be specific.

Do you think she would pass?

More thoughts from PoliBlog, George Will:

"It is not merely permissible, it is imperative that senators give Miers ample opportunity to refute skeptics by demonstrating her analytic powers and jurisprudential inclinations by discussing recent cases..."

Indeed.