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Miers Backed Race, Sex Set-Asides
She Made Diversity A Texas Bar Goal

By Jo Becker and Sylvia Moreno
Washington Post Staff Writers
Saturday, October 22, 2005

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.

White House spokesman Jim Dyke said that Miers's actions on the bar do not indicate a view on how Miers might rule on the big question before the Supreme Court, which is how far government can go to promote diversity.

"The best I can tell, this was a private-sector initiative to increase diversity, which is not the same thing as a government mandate of quotas," he said.

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."

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.

Although Miers was not the author of either policy, she never objected to them, according to tapes of the meetings, and numerous board members who served with her said she fully supported both efforts.

As the first female litigator at her law firm and the first female president of both the Dallas and Texas bars, Miers had an understanding of the barriers faced by those who are not white males, said former board member James Parsons III, who served on the board with Miers when she was named president-elect in 1991.

"When you come up hard like she did, you either pull the ladder up behind you or you leave the ladder down and reach back and pull people up," he said. "Harriet reached back -- that's who she is."

Others see it differently.

"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.

The resolution called on firms to increase the number of minority lawyers by setting a goal that 10 percent of all newly hired associates over the next five years be minorities, provided that they met the firm's hiring standards.

At the June 24, 1992, meeting at which it passed, Miers was just finishing her 1991-1992 term as president-elect, the number-two position among state bar board members, and was about to begin her year-long presidential term. Bob Dunn, who was president at the time, said that as president-elect, Miers served on the executive committee, where the matter was brought up before its adoption by the full board.

He said the committee agreed that Texas demographics were changing, and law practices needed to keep up.

"There wasn't a single member who expressed concern, and Harriet was certainly one of the leaders" in supporting the policy, he said. "It wasn't a hard sell at all, and I think we made a lot of headway because of it from the standpoint of inclusion."

At the full board meeting, a stand-in for Gonzales stressed to Miers and others that the policy was "aspirational," and "not a quota by any means." Gonzales, whose spokeswoman declined the opportunity to comment, would later call it a "concrete goal" firms should meet in an update to the board six months later.

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."

Bush has said he opposes quotas, and in a major 2003 Supreme Court case on affirmative action, his administration argued against race-based admissions policies at the University of Michigan. But the administration, led by Gonzales, disappointed conservatives by pressing a narrow argument that objected only to the way in which Michigan had pursued diversity, not to the diversity rationale for affirmative action itself.

In Texas, the bar association employed affirmative action methods similar to those that conservatives found objectionable in the Michigan case. Most bar members, including Miers, are elected to the state bar's board after serving in elected positions on their local bars. But the system was a "good ol' boys network" that had resulted in a lack of representation by women and minorities at the state leadership level, according to Dunn.

Two years before Miers became the president, the state bar had decided to remedy that situation by setting aside four board of directors seats for women and minorities. Those members are appointed by the president but have the same voting privileges as those who ran for office.

The policy, which is still in place today, came up for discussion during Miers's presidency, board minutes show. The board made minor changes, but kept the preferences intact.

Dunn, Parsons and others said that Miers was strongly supportive of the policy. Parsons said this stance was not especially controversial because the bar's leadership was in agreement that "something had to be done."

Walter Sutton, a black lawyer Miers named to one of the four slots during her tenure, said she was "passionate" about the program.

"I know that she supported it without reservation," said Sutton, who first got to know Miers when she ran for the Dallas City Council in 1989 and went on to serve in the Clinton administration. He is now associate general counsel for Wal-Mart Stores Inc. "I remember she called me and she was very excited -- she said, 'Walter, this is something you have to do.' "

Even today, some large states such as Florida have no such set-asides to ensure diversity. Martha Barnett, former president of the American Bar Association and a Miers enthusiast, said that the Texas policy was "very progressive, then and now, especially because to some degree there's been a backlash against things like that."

Martin Redish, a professor of constitutional law at the Northwestern University School of Law, said Miers's actions a decade ago, while not definitive, are telling.

"While it is by no means clear how she would vote, it sounds as though she would be amenable to the use of, if not quotas, racial preferences," as a way to achieve diversity, he said.

Moreno reported from Austin.

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