Miers espoused progressive views as elected official, records show

WASHINGTON—In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city's political structure.

In the same testimony, Miers, then a member of the council, said she believed that the city should divest its South African financial holdings and work to boost economic development in poor and minority areas. She also said she "wouldn't belong to the Federalist Society" or other "politically charged" groups because they "seem to color your view one way or another."

Miers' thoughts about racial diversity placed her squarely on the progressive side of the 1990 suit, which was pivotal in shifting power in Dallas politics to groups outside the traditional, mostly white establishment.

And some constitutional scholars say that if Miers were to embrace the same views as a justice on the high court, she would fall more in line with the court's pragmatic, moderate wing than with its doctrinaire extremes.

"There's an acknowledgement in her comments that race matters and is relevant, and from a fairness standpoint, we should acknowledge the impact of a particular political structure on voters of color," said George Washington University law professor Spencer Overton, a voting rights expert. "It's not unlike something you could see Justice Sandra Day O'Connor saying. A rigid quota system may be bad, but diversity is a compelling interest, and we want institutions to reflect society as a whole."

That notion may not be helpful to Miers' support among conservatives in Washington and elsewhere, who have expressed deep disappointment—and, in some cases, stark outrage—that President Bush did not choose a solidly conservative nominee to replace O'Connor, a swing vote on many issues.

That disappointment continued to resonate Thursday on Capitol Hill, where one leading Senate conservative who met with Miers described her as too much of an enigma.

"I think there's still a lot to learn about this nominee," said Kansas Sen. Sam Brownback, after meeting with Miers for about an hour in his office. "The president has had the advantage of working with her for a decade. I must do my own due diligence, I can't say all these issues were overcome in a one-hour meeting."

In the 1990 federal lawsuit, Miers was called to the stand by a lawyer representing black and Hispanic citizens who felt the City Council's structure illegally impeded their ability to win seats.

Only two of the city's eight single-member council districts had ever been represented by blacks; no blacks had ever been elected to the three citywide seats. Hispanics had no single-member representatives, and only one Mexican-American had ever won a citywide seat.

Blacks and Hispanics made up more than 40 percent of the city's population.

The plaintiffs complained that the structure diluted the potential for minority representation on the council by drawing district lines that minimized the impact of minority votes.

Miers agreed that there were too few minorities on the council, and that increasing the number of single-member districts—thus redrawing district lines—would be one way to change that. She said the structure needed to "encourage additional African-American, Mexican-American representation on the council."

She also said that as "one of the ingredients" in remaking the council, a racial balance would be important. Miers was careful not to endorse the idea that race should be the sole or even primary focus on redistricting efforts, saying at one point that "while race is an issue, you have economic diversity, which is really the crux" of the problem.

"To be representative, you've got to deal with more than race," she said.

But her comments were strong enough for the judge in the case, a Democratic appointee, to quote her among council members who agreed the system challenged in the lawsuit was unfair.

"There was no doubt she understood the problems, and wanted to find a solution—both in terms of politics and the underlying unequal services," said Michael M. Daniel, one of the attorneys who handled the case. "She obviously played a role in this case."

The Supreme Court confronts the role of race in policy-making decisions in a number of areas, including voting rights and affirmative action. Miers' 1990 views on the subject suggested contextual solutions that avoided rigid rules much like O'Connor's opinion in the landmark college admission case. That approach is not embraced by the court's more doctrinaire justices, such as Antonin Scalia and Clarence Thomas. President Bush has described Scalia and Thomas as his favorite justices and has said their approach to judicial matters is what he prefers.

Little in Miers' track record—mostly as a corporate attorney in Dallas and legal adviser to Bush—suggests that she would have developed a particular constitutional approach or outlook.

Although, in her testimony in the voting rights case, she said she had become familiar with the issues by reading up on prior cases. She also acknowledged having given a speech about a pivotal 1973 Supreme Court ruling about legislative redistricting in Texas.

She also said during her sworn testimony that she would not join an organization like the Federalist Society, a group of conservative intellectuals that is a leading proponent of a strict—and some say narrow—interpretation of the Constitution.

"I just feel like it's better not to be involved in organizations that seem to color your view one way or the other for people who are examining you," she said.

Chief Justice John Roberts caused a flap earlier this year by insisting he was not a Federalist Society member, even though records listed him in the group's leadership directory in the late 1990s.

Gene Meyer, president of the Federalist Society, said he wouldn't confirm whether Miers was a member, because it's "up to members themselves to say." But he said Miers has spoken to the group's Washington chapter since she became White House counsel.

In her Texas testimony, Miers also discussed her own election for an at-large seat, and her efforts to reach out to residents in the city's largely poor, minority areas. She said she noticed great disparities in the kinds of city services that were available in different neighborhoods, and that many citizens in poor and minority areas didn't feel they were adequately represented on the council.

Miers said she had worked to get Hispanic and black representatives onto the oversight board for the city's transit system and had worked to boost economic redevelopment and social safety net programs in Dallas' struggling communities.

Her testimony reveals practical experience in issues involving the race and class divide—something none of the other current Supreme Court justices has.

"I think it showed her the human side of the legal issues she'll confront," Overton said. "The question is: Who will she be as a judge? Will she bring those same sensitivities to the bench as a judge? My hope is that she will—just as Justice O'Connor did."


(Knight Ridder Newspapers correspondent James Kuhnhenn contributed to this report.)


(c) 2005, Knight Ridder/Tribune Information Services.

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