Jonah, I just don’t see how – given the rules of the game – Hugh and other Miers supporters can demand that we draw a hard state-action doctrine box, place the Texas quotas in it, and then pretend that we can’t (or, worse, shouldn’t try to) reasonably infer how she would rule in an unambiguous, state-mandated affirmative action scenario.

Hugh, other Miers supporters, and even some of our friends on Bench Memos (where for weeks now we have been debating the question of questions – i.e., what a nominee may properly be asked by the senate regarding prior cases, precedents and judicial philosophy) are adherents of the “name, rank and serial number” approach. This holds that a nominee should be able to answer, “Sorry, I can’t discuss that for it may taint me” to every question from “Do you think Roe should be overturned?” to “Could you please pass the salt?” So what else are we supposed to go on, when it comes to assessing their likely rulings, besides what little we have.

Sympathy for the underlying rationale of affirmative action is a bent of mind. It isn’t, I don’t think, intellectually reined in by whether some action is, strictly speaking, state action – even though how far one is willing to go to impose quotas probably does depend on how nakedly offensive they are.

Plus, whatever those reining-in boundaries are today, we know boundaries evolve. Fifteen years ago the Court said one thing about capital punishment against minors; last year in Simmons, it said the opposite – and justified itself by claiming that the operative considerations had somehow changed during what, in temporal terms, was the bat of an eye. Why should we refrain from drawing common sense inferences about Miers’ views based on the only evidence we have – and the only evidence we are likely to get? Just because of what the Court says today about the state-action doctrine? The justices could say something completely different ten minutes from now – but meanwhile there’s no reason to think Miers’ predilections about affirmative action would be any different.