Wednesday, October 19, 2005
World Series (Central time zone)
Thank you, St. Louis, for a good series. The Cards are a classy team.
But we've been waiting the whole franchise lifetime for this one.
Way to go, 'Stros! The whole City of Houston just exhaled.
Miers' practice experience as measured by volume of trials
The Washington Post, and probably a great many other news outlets as well, in reporting on Harriet Miers' answers to a Senate Judiciary Committee questionaire, had this to say about her litigation practice experience:
With a corporate practice that rarely involved trial work, Miers, 60, said that she had identified eight cases that went through complete trials, of which she was the lead counsel for four.
Of this, my new blogospheric best friend (for reasons shortly to become obvious) John Podheretz writes today on NRO's The Corner something I'm sure he believes sincerely, but about which he's woefully misinformed (emphasis mine):
I've now received about a billion e-mails from lawyers explaining that there's nothing wrong with the fact that Harriet Miers only participated in 16 courtroom cases in a career spanning more than 25 years — that 90 percent of all legal matters are settled, that's what lawyers are supposed to do, and so on. That's all nice, but it's beside the point. Miers's defenders, the brilliant Beldar among them, have praised her choice because her career as a working lawyer will supposedly provide her with unique and valuable experience when it comes to the Court. The clear implication of this line of argument is that she knows the law from the other side of the judge's desk. Sorry, but that won't wash. It's one thing to argue that courtroom experience as a lawyer prepares you for the back-and-forthing on the Court. It's quite another to argue that a career spent settling cases prepares you to rule in matters that have been adjudicated by lower courts. If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever.
Note well: I have certainly taken more different contributors to NR/NRO, including ones with editorial positions, to task over the Miers nomination in my blogging than I ever have over any previous issue, and certainly more of them than at any other institution or publication. My arguments have sometimes been straightforward, but they've also sometimes been laced with snark; and snark always carries a greater chance of giving offense, either intended or un-. Throughout my blogging on the Miers nomination, however, I've maintained a running side-channel of email correspondence with most of those same NROniks, who have — invariably and without exception — been exceedingly gracious, thoughtful, mature, and civil, and often quite funny as well. I've had occasion to apologize privately to one of them for a fairly offensive suggestion that I'd made via email and that he/she persuaded me was unfounded; fortunately that exchange took place before my unfounded suggestion hit the 'net. I've said throughout — and I repeat here to all my readers, including those commenters who've voiced frustration or annoyance at prominent critics of the Miers nomination — that we all have far more in common than separates us, for we wouldn't be having this spat but for the fact that we all deeply, sincerely understand the stakes of each SCOTUS nomination. There are indeed better angels of all of our natures, and especially now, while arguing and disagreeing among one another on matters of great weight and principle, we ought to be solicitous of each others' better angels. JPod's going out of his way in the blurb quoted above to bestow an effusive and not-quite-deserved compliment on me is not him sucking up to me (for he knows I'll continue to state my disagreements with him when and as we have them), but rather a gesture of acknowledgment intended for my better angel, and I appreciate it as such.
I continue to believe, in fact, that very few of the Miers critics are motivated by spite or any other type of ill will. Rather, they've either (a) formed their views based on faulty information, or (b) been insufficiently imaginative to escape their mental ruts as to what sort of nominee may be fit. JPod's comment about Ms. Miers' trial experience is an example of the former, and it's a particularly pithy and well-articulated mistake that I've been predicting in my emails for several days now. Here (slightly edited) is a quote from an email I'd sent to John Fund — whose reporting on October 12th in his WSJ OpinionJournal "Political Diary" column (subscription only, but heavily (within "fair use") excerpted here, for instance) correctly foreshadowed Ms. Miers' questionnaire response (and who deserves due scoop credit for that):
Re number of trials: It would not surprise me if, in fact, she hasn't tried very many jury trials to a verdict, given the nature and stakes of her practice. But Merrill Hartman, who's one of the very best state district judges in Dallas, has been quoted saying that he's had her in his court and she has an effective manner with a jury. I've also been before Merrill Hartman, and he doesn't strike me as an easy grader. A few other things you probably know, but would be remiss not to point out to the public who doesn't: The overwhelming majority of all civil cases settle, rather than going to trial. The system would collapse otherwise. I don't know what the latest stats are state-wide, but I'm sure it's well over 90%, and probably more like 97% would be my guesstimate. Moreover, everything else being equal, commercial disputes of the sort she's mostly handled (as opposed to, say, personal injury cases) tend to settle even more often, precisely because parties who can afford good counsel are typically themselves fairly sophisticated and can make reasonably precise judgments about what the reasonable settlement value of a case is. And in general, the higher the stakes, the greater pressure the parties feel to settle rather than put everything on the line — which means that the percentage of cases being tried to a verdict is usually lowest of all for the lawyers with the most sophisticated practices.
And to present a fair picture, you have to look at more than just cases tried to a jury verdict. You have to also look at non-jury (a/k/a bench) trials. You have to look at cases won or lost on dispositive motions (a motion for summary judgment or, in the federal system, a motion to dismiss that ends the case without ANY trial being held). You have to look at trial-like proceedings, which would include arbitrations, mediations, mini-trials, and the like. You have to look at cases that settled on the courthouse steps because one side was fully prepared and the other, seeing that, chickened out at the last minute.
Win/loss ratios are also misleading. Experienced courtroom lawyers will tell you that the measure of excellence isn't how many you've won and how many you've lost, but how many you've won that you ought to have lost, and how many you've lost that you ought to have won.
Precisely because it's so hard to get actual trial experience, firms all over the country (not just in Texas, but big firms everywhere) have long been looking for "training dockets" or other means, e.g., through pro bono, to get that trial experience for their lawyers. Some big firms in Texas kept doing the traditional high trial volume work — personal injury cases representing insurance companies — after that work became much less economically attractive (insurance companies stopped being willing to pay elite lawyers' rates). But Ms. Miers' original firm, Locke Purnell, [had the] reputation from at least the mid-1970s (when I was in law school) [of] being pretty committed full-time to big cases, mostly commercial cases. For firms like that, I suspect Ms. Miers' total number of trials and trial-like experiences will be pretty typical, but it's very unlikely to be in the "many dozens" range.
I'm highly confident that Ms. Miers' practice included hundreds of cases for which she was primarily responsible, plus others in which she shared responsibility, in addition to the few that were tried to a conclusion. I'm highly confident that she's taken many depositions, that she's argued many a procedural or substantive motion. I'm sure she's engaged in mediations, and perhaps also arbitrations or other forms of alternative dispute resolution. I strongly suspect she's handled evidentiary hearings short of full-blown trials — for example, for purposes of securing rulings on preliminary injunctions or making fact-findings essential to preliminary procedural matters (e.g., whether a privilege has accidentally been waived or whether a defendant is subject to personal jurisdiction in a particular forum).
In all probability, Ms. Miers has been keeping track of her professional time in increments of one-tenth hour from 1972, when she finished her judicial clerkship, though 2001, when she joined the Administration. I hope and trust that even as I write this and you read it, capable minions are combing through her time diaries and/or her firm's bills to compile a list of such things — numbers and types of cases, hearings, depositions, and so forth. I guarantee you that she could not have secured clients like Microsoft and Disney for her reported cases had she not had those experiences, nor gained the professional respect of her peers, opponents, and judges. And I'm quite certain that if one focuses solely on "eight cases that went through complete trials," one will be badly misled — and perhaps, as a pundit, become badly misleading to others — about the extent and nature of her professional career.*********
But now it's time for another of Beldar's Extended Anecdotes About the Good-Ol'-Days When He Was But a Pup™:
Although I had many excellent sources of learning and inspiration as a young lawyer at Houston's Baker Botts in the early 1980s, two in particular stand out in my memory, and I consciously adopted them as my role models even then. One was the head of Baker Botts' trial department when I began working there, Richard B. Miller. The other was a younger partner in the firm's antitrust department, the late John L. Jeffers, Jr. At a superficial level, the two men could not have been more different.
Dick Miller's posture and manner practically screamed his background as a Marine, and his Harvard law degree was a bit of a surprise given his hardscrabble Oklahoma youth and lack of an undergraduate degree from anywhere. Dick had tried dozens and dozens of cases to a jury verdict early in his career, but the number of trials naturally tapered off considerably as his cases got bigger. Yet he was always a "trial lawyer's trial lawyer": No one ever, for a millisecond, thought that Dick was ever anything but incredibly eager to take a case to a jury verdict.
Dick taught me almost everything I know about handling expert witnesses. He taught me that in every jury trial, the jurors are desperately searching from the initial moments for the one personality in the courtroom who will dominate the trial — the person who becomes the frame of reference through which the jurors will process all the evidence — and that a successful trial lawyer needs to be that personality. He needs to find a way to make it so that even when he's sitting silent and motionless and the jurors are listening to the judge or another lawyer speak, the jurors are wondering, "I wonder what Mr. Miller's going to have to say about that?" or "That sure doesn't fit with what Mr. Miller proved through that last witness, I'm just not gonna swallow that." (The problem is, even if you understand this theory, the only way you can make it work is if you find and develop your own best gifts as a lawyer, and I could no more have imitated Dick Miller's particular gifts than I could have won an Olympic gold medal in the pole vault.)
I had the privilege of carrying Dick's briefcase as the third chair lawyer in a products liability automotive crashworthiness case in March 1982; lawyers from all over town, even judges, found an excuse to come sit in the courtroom to watch Dick win it. And yes he was tough and fierce and aggressive, but it was anything but raw aggression; Dick Miller was whip-smart, a master of both personalities and the law, a polished diamond of a lawyer. He was, without question in my mind, the single best courtroom tactician that I've ever seen, and by a healthy margin — and I've seen some very, very good ones.
John Jeffers, by contrast, had a physique more like my own, and was the product of a privileged background as the son of a successful litigation partner at Houston's Vinson & Elkins — elite boarding school, Yale College, then back home for UT-Law. In contrast to Dick Miller's career path, John had always mostly worked on big, extended cases. He'd tried, and won, and held onto through appeals, a huge antitrust case against Volkswagen — who'd been represented by his father. He'd spent something like 18 consecutive months in trial in an FTC proceeding successfully defending Tenneco's acquisition of Monroe Shock. Throughout his entire career, I doubt if he had as many as ten trials, and fewer to a jury; and completely aside from trials, I'm sure he'd handled only a small fraction of the total number of separate matters that Dick Miller had.
I had the privilege of working with John on two huge corporate take-over cases in 1981 and 1982, one of them very drawn out (American General's acquisition of NLT Corp.), and the other lightning-fast (Burlington Northern's acquisition of The El Paso Company). In each of them, John gave me responsibility vastly beyond what I'd earned, and with it the opportunity to observe, and participate at the margins of, the formulation of strategy. John was as low-key as Dick was dominating, and he had the mannerisms of an absent-minded professor. He tended to mumble. In a one-day trial, he'd probably have annoyed the heck out of both judge and jury, but over time in a longer trial — not through personality, but through sustained brilliance and preparation — he'd eventually win them over. John Jeffers taught me more than anyone else about seeing the big picture, grasping what was actually driving the players (even if they didn't know it themselves), finding ways to use my clients' intrinsic advantages to their best potential and minimize their exposure from their weaknesses.
As it happened, Dick Miller and John Jeffers squared off in what's still one of the most famous disputes in American history, Pennzoil Co. v. Texaco Inc. Dick, who'd left Baker Botts to open a litigation boutique, was Texaco's lead counsel in the eventual Houston jury trial. John was Pennzoil's master strategist behind the scenes throughout. Along with his own partner Irv Terrell and the talented and flamboyant (and decidedly un-Bottsian) Joe Jamail, John was among the three lawyers to take significant roles in front of the jury for Pennzoil during trial.
But as much as I wanted to, I didn't work directly with John on the case. I still vividly recall the Sunday morning in January 1984, when Jeffers, calling from New York, had gotten me out of the shower. "Dyer," he said, "I'm up here with [a Baker Botts corporate partner] riding herd on this Pennzoil-Getty deal, and the whole thing's beginning to blow up. Looks like Texaco's trying to steal the deal. Can you get on a plane?"
"Oh, man! Wow! I'm really sorry, John," I said, "and this just kills me to have to say. But I'm picking a jury in federal court here in Houston tomorrow morning on one of my first-chair cases, and there's no way I could get out of it or hand it off." You see, while I'd been pleased to get the chance to work on some huge, mega-cases (mostly mergers and acquisitions litigation), I'd also cultivated my own docket of still significant but much smaller cases that I could use to earn the first-chair jury trial experience I also wanted. And from January 1984 through the end of 1986, I tried nine of those smaller cases first-chair, most of them to juries, plus another couple of second-chair trials, and I also worked on four other M&A matters. But the price I paid for getting that early first-chair experience was that I never could free up a big enough chunk of time to join the Pennzoil team. I was reduced to watching it from a privileged position on the margins, with insider access to one side. I knew all the lawyers involved in the trial, and I spent every hour that I could steal from my own practice watching it.
Pennzoil, of course, won the jury trial, and the subsequent appeals. The American business and legal communities were stunned, and most of them thought it was a huge aberration. But it wasn't. In the big picture, Pennzoil won because of John Jeffers' superior strategy throughout — not only in the jury trial portion of the dispute and the direct appeals from it, but also including proceedings in the Delaware chancery and state supreme courts, the federal trial and appellate courts of New York, an injunction case in Oklahoma, two trips to the U.S. Supreme Court, and ultimately the bankruptcy courts. Miller was the superior tactician — asked immediately after the jury trial who they'd hire themselves if they were in trouble and needed the most effective lawyer they could find, almost all the jurors named Miller. But strategy ultimately beat tactics to the tune of $3 billion of Texaco's cash that became Pennzoil's — and while of course the underlying facts of the case were responsible for its magnitude, the lawyering played a significant part too.
Regular readers will know that I use the vulgar term "candy-assed litigator" to show disdain and the term "trial lawyer" to show respect. (The latter does not mean "plaintiffs' personal injury lawyers," who may or may not be "real trial lawyers.") Superficially, John Jeffers might have looked to some like a candy-assed litigator — but every lawyer who made that mistake ended up getting his rear end chewed up and handed back to him. I am here to tell you, friends and neighbors, that both John Jeffers and Dick Miller were genuine, high-test, undiluted, and very potent trial lawyers. More than any two other lawyers I've ever met, Dick Miller taught me tactics, and John Jeffers taught me strategy. You've got to know both to be a genuinely successful and well-rounded trial lawyer, and neither Miller nor Jeffers was a slacker at the other's specialty. Having had the chance to learn from them both was a unique opportunity — I was in exactly the right place at the right time — for which I'll always be grateful to both men.*********
That's a long anecdote, and you may be wondering why the heck I chose this post to tell it in.
You may have noticed, gentle readers, that with general consistency, I've referred to Ms. Miers in my posts and comments as a "courtroom lawyer," rather than as a "trial lawyer." That's been for two reasons. First, I didn't want people to assume (wrongly) that any significant portion of Ms. Miers' practice has involved representing plaintiffs in personal injury cases, and that's what the press and politicians typically mean when they talk about "the trial lawyers" or "the trial lawyers' bar." But the second reason is that I don't have enough data to say with confidence whether Ms. Miers is, or isn't, a real "trial lawyer" in the sense that I use that term. And you can't tell one way or the other from the questionnaire to which JPod referred. That was the point of my telling the story of John Jeffers. For me to use that term to describe her, I'd have to either have worked with her first-hand under pressure for a while, or else have learned a whole lot more about the cases she's handled, plus spoken with others whose judgments I trust and who'd been involved on a first-hand basis in at least some of those cases.
Everything else being equal, I'd slightly rather have a real trial lawyer on the Court than a mere litigator. I hope she is one, and there are some promising signs; I may or may not be able to draw a confident conclusion about that with more information. But while I think the difference between real trial lawyers and mere litigators is (or ought to be) very important to clients, those differences are probably not very important for purposes of being a Supreme Court Justice. Supreme Court Justices don't try cases, so whether one of them has the secret guts to go to trial, plus the ability to project that to one's opponents, just isn't very relevant on the Supreme Court.
Thus, I can tell you this with great confidence, even without knowing whether Ms. Miers would or would not meet my highly subjective standards for being a "real trial lawyer": JPod's assumption — "If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever" — is badly wrong. His insistence that settled cases are "beside the point" means that he's never understood how litigation actually works, and that's why all those "billions" of lawyers are emailing him! It's the sort of thing that only someone very inexperienced in the American civil justice system could say. I'm delighted for JPod's sake that he apparently is still a virgin, apparently unacquainted with even the basics of civil litigation; may he never be sued or need to sue, may he ever remain such. But there's just no such thing as pure "judicial legal skills" that only are used during trials on the merits. Let's leave aside for now deal lawyers, because they help clients avoid courtrooms by anticipating disputes and resolving them or allocating their risks in advance. The only way that lawyers who handle litigation can "help people and corporations avoid courtrooms" is by being fully prepared to go into courtrooms, and projecting to the other side their readiness and capability to do so.
That includes drafting pleadings and motions and briefs. That includes eliciting testimony through oral depositions and working with expert witnesses. That includes presentation of one's case to opposing counsel and typically now also to a mediator as part of settlement discussions. If the lawyer's any damned good at all, everything that is done in all of the pre-suit and pre-trial phases of a litigation matter is done with an eye toward how it would affect the ultimate trial. JPod denies that "a career spent settling cases prepares you to rule in matters that have been adjudicated by lower courts." I'm sorry, but that's completely wrong; cases don't settle because one side suddenly persuades the other who's right and who's wrong, but because one side causes the other to reevaluate its risk-benefit equation for going to trial. It's the anticipation of results of the sort that play out in that tiny percentage of cases that do go to trial which causes and permits all the rest of the cases (the huge majority) to settle.
In the end, I'm no more troubled that Harriet Miers hasn't tried dozens of cases than I was that John Roberts hadn't tried any, nor even taken a deposition. I've tried dozens, and taken hundreds of depositions, but my record reflects trade-offs, as do each of theirs. Overall they're both well qualified for, and will bring something useful to, the Supreme Court. I'm not and wouldn't. And oddly enough, I doubt that either of my two heroes that I've written about in this post would have been particularly well-suited to the Court either; some people are such good trial lawyers, and so unrelentingly competitive, that they actually would not make very good judges at all.
Tuesday, October 18, 2005
Is the advice of a White House Counsel likely to be torqued by the SCOTUS brass ring?
In a typically eloquent editorial in today's WSJ headlined "Unwise Counsel," InstaPundit Glenn Reynolds suggests that the Miers nomination has been flawed by both "substantive" and "procedural" mistakes. With respect to the latter, he argues that "[t]he entire affair gives the impression of an administration that is distracted and not up to its usual standards of well-oiled efficiency on political and judicial matters," and he gives some reasonably persuasive examples to support that. But his substantive argument relates to his observation that "[t]he path from the [White House C]ounsel's office to the Supreme Court is not well-trodden, and for good reason." As to this, I'm unpersuaded.
Prof. Reynolds first notes that the fact that Ms. Miers' has been Dubya's lawyer "has already given rise to paranoid theories from the left to the effect that Mr. Bush is trying to protect himself from prosecution growing out of the Plame affair or the Iraq war." Well, yes. But they're exactly that — paranoid theories. If an American President sends to Capitol Hill a proposed new "court-packing" amendment to the Judiciary Act that would instantly expand the Supreme Court to 19 justices on the same day that the House Judiciary Committee is taking up impeachment proceedings, then we might have a problem. But until then, I don't think this or any American President should use the possibility of generating paranoid theories as a good reason to disqualify from consideration a lawyer whom, by definition, the President has found sufficiently competent and trustworthy as to become Counsel to the office (not just the office-holder) of the President of the United States.
The "other half [of] the trouble" cited by Prof. Reynolds I find even less persuasive. I agree with, but am not much troubled by, his premise that "[t]he tendency in recent years to nominate judges from the U.S. Court[s] of Appeals to the Supreme Court has led to a certain amount of politicking and positioning by appellate judges who think they have a shot. That's bad." But I'm mystified by — and to the extent I do understand it, I simply disagree with — his additional assertion that "surely it would be far worse if future White House counsels started letting hopes of a court nomination distort advice they offer the president."
It's ethically incumbent upon every lawyer to be alert for personal interests and motivations that might impair his or her objectivity and judgment, even subconsciously, and therefore diminish the value of his or her advice to the client. And I presume that what Prof. Reynolds is suggesting here is that the prospect of a Supreme Court appointment creates such a personal interest, and that a White House Counsel's motivation for career advancement therefore runs a risk to his or her objectivity and judgment.
But if that creates a potential for conflicting interests — "Is this good for me? Is this good for the Nation and the POTUS? What if it's only good for one and bad for the other?" — it's certainly not a hidden potential conflict. And in general, so long as a potential conflict of interest is either obvious or else disclosed to the client, the client may make a knowing and valid choice to waive it and proceed to rely on that lawyer's advice and representation anyway.
How obvious is this potential conflict, if one there be? It certainly occurs to me, to every other practicing lawyer, and to any client who stops to think about it that in almost every matter we work on, whether we do a really good job on that matter is definitely likely to have a big impact on us in the future. It may well determine whether we get paid this time, and hired again by that and other clients in the future; or promoted within our law firms; or gain in the esteem of various tribunals, opponents, and third parties. It might make us richer; the law of the jungle and most law firms is that "you eat what you kill" (with "kill" being broadly defined, but generally defined to exclude one's own clients as targets). And this is true not only for adversary practice lawyers, but also the quiet ones whose worlds consist of tax codes, offering circulars, wills, or convertible debenture indentures (who, as they'll tell you, are quite often are concerned with considerably larger prey).
And whether any sort of lawyer has done a "really good job" on almost any sort of matter is, in turn, defined in almost every instance by the results we get for our clients. That is to say, to the extent we lawyers have this sort of personal interest, this motivation to shine — and we virtually always do; is anyone shocked to learn that lawyers as a class are ambitious, or that water is wet? — those interests are generally defined by, and therefore tightly aligned with, the interests of our clients!
That's not a problem. That's a good thing, at least in general. Some people, in fact, quite reasonably see personal ambition as a highly desirable quality in their prospective lawyers. They absolutely, positively want the hungriest shark, the most cunning jackal, the most far-sighted eagle, the wisest and most fierce lion of the bar, whom they can find.
I'm simply unable to see how being motivated by desire for the President's recognition and gratitude is likely to ill-serve either the POTUS or the beneficiaries of the POTUS' own fiduciary duties, the American people. I know that Prof. Reynolds has thought and written a great deal about actual and potential conflicts of interest. And maybe, jungle metaphors aside, I'm being insufficiently imaginative. But for me to take this one seriously, someone needs to articulate a hypothetical scenario in which the eligibility of a White House Counsel for a future SCOTUS nomination is likely to actually compromise that Counsel's objectivity and judgment in a way that works to the detriment of the POTUS and/or the Nation. Maybe Prof. Reynolds had such a scenario in mind, but it fell prey to length limitations or an overzealous editor's pen. Or maybe you, gentle readers, can posit one?
K-Lo's fuzzy logic on Miers
I've never met nor spoken with National Review Online editor Kathryn Jean Lopez — K-Lo — and I'm sure she must have the highest ambient email noise of everyone at NRO, which in turn makes it awfully hard to make even her constructive acquaintance that way. I admire her wit (not infrequently self-depricating), her values, and her output. But one of the downsides of blogging generally, and in particular writing a lot of short posts that may not have been the product of careful reflection (even by blogospheric standares of "carefulness") is that one's more inclined to stray off into logical errors.
I think K-Lo fell victim to that a couple of times today with respect to the Miers nomination, on which she's expressed strong and almost uniformly very negative (if sometimes snarky-funny) opinions. I reprint here (slightly revised) my emails to her, which have not yet drawn any response, nor do I think them particularly likely to do so (see above, re ambient email noise):
Changing one's mind vs. changing the law
K-Lo, you wrote:
President Bush has said that he knows Harriet Miers "well enough to be able to say that she's not going to change; that 20 years from now she'll be the same person with the same philosophy that she has today." But when considering the case presumably more personal and important to her than any individual case before the Supreme Court will be — whether to serve on the Court — she changed her mind over the course of months.
Surely, however, even intelligent non-lawyers can readily understand the difference between the sort of "case" involving one's personal goals or preferences, and the sort of "case" referenced in Article III of the Constitution.
If I am asked about my interest in a new job that will require me to go through an extremely unpleasant and intrusive application process (ending my personal privacy, subjecting me to ridicule from the ill-informed and the spiteful), I might quite reasonably conclude that the benefits anticipated don't justify the costs — a personal balancing that leads me to turn the job down. However, if someone whom I trust and admire on a personal basis, as part of his own very important job, asks me to reassess the benefits of my taking the job — and in particular, to re-weigh the public good to be served, as that trusted person views the public good — then I might certainly come to a different conclusion. As it happens, the President hasn't asked me, nor told me he thinks the Nation would be better off with me on the Supreme Court. But he has asked that of, and told that to, Harriet Miers. Are you suggesting that a direct request from, and the considered opinion of, the President of the United States are entitled to no weight?
The process of making even the most profound personal decisions is intrinsically different than the process of judging a "case" or "controversy" within the meaning of Article III of the Constitution. Equating these two processes is very misleading. And many of us — I presume you, too — think that the future of our Nation, and the integrity of its Constitution and rule of law, are indeed very much more important than our individual lives and fortunes.
Ethics: Not sufficient, but necessary
K-Lo, you wrote:
And do you really expect people to be convinced she's a SCOTUS fit because: "Throughout her career in local, state and Federal governments, Harriet Miers has held herself to the highest ethical standards"?
But you surely understand the difference between the necessary and the sufficient. Do not fault the White House for assuring the public that Ms. Miers is and has always been ethical. Making that assurance is particularly appropriate when a nominee has been accused of being a "crony," as this one has, and by you. "Crony" has connotations that include corruption. That this nominee is not corrupt — that she's no Abe Fortas — is a point worth making, and perhaps a qualification that you would agree ought to be necessary for any Supreme Court Justice.
Nor suggest, please, that by making that assurance, the White House has argued that being ethical is sufficient all by itself. If it were, it would have been a much shorter set of talking points.
Monday, October 17, 2005
Words of one syllable about the Conference Call Cause Célèbre
What followed [in a conference call about the Miers nomination on October 3rd], according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"
"Absolutely," said Judge Kinkeade.
"I agree with that," said Justice Hecht. "I concur."
Mr. Fund is far, far too good a reporter, however, to fail to include a paragraph somewhere in his story (the twelfth one) that includes the blindingly obvious observation about what his factual reporting does and does not reveal (boldface, again, mine):
The benign interpretation of the comments is that the two judges were speaking on behalf of themselves, not Ms. Miers or the White House, and they were therefore offering a prediction, not an assurance, about how she would come down on Roe v. Wade. But the people I interviewed who were on the call took the comments as an assurance, and at least one based his support for Ms. Miers on them.
Words of one syllable about that last sentence: If they took it that way, then each of them made a guess too. Duh.
It's unusual, but not unethical or improper, for sitting judges to make guesses about how someone else who might be confirmed to a different judgeship might possibly vote if a particular matter possibly comes up in the future. If these particular judges know Ms. Miers well, then their guesses might even graduate from the category of WAGs\*/ to the higher status of educated guesses. Neither man claims to have based his (at-best educated) guess on anything in particular that Ms. Miers has promised, or written, or said. Indeed, Justice Hecht has repeatedly denied having heard Ms. Miers make any promises or assertions or statements about how she might rule on abortion issues if she's confirmed, or even what she thinks of Roe as a precedent.
But except for the purpose of playing guessing games, this is basically meaningless information — even if it's written up by someone as diligent and articulate and well-connected as Mr. Fund. Even if it's in the Wall Street Journal. Even on a Monday.
I wish someone had asked one of these judges this (compound) question: "Hey, Judge, would documentary or testimonial evidence confirming your statements and that of the other judge on this conference call — even a videotape! — have been admissible under any theory of evidence in any court in the United States to prove anything whatsoever about Ms. Mier's actual intentions, or to prove what she's actually going to do?" 'Cause those questions could also have been answered in one word of one syllable, as to which no one would have to guess at all:
Sunday, October 16, 2005
Miers' 1995 letter to Bush on Texas attorney fees ought to comfort conservatives
Writing on the Confirm Them blog, Andrew Hyman has a piece up that links articles from the WaPo and AP on the subject of a letter that Harriet Miers wrote to then-Texas Governor George W. Bush in June 1995. Through his comments as quoted in the WaPo article, though, Bruce Fein — who's described in the WaPo article as "a Miers critic who served in the Reagan administration's Justice Department and who often speaks on constitutional law" — unfortunately only added to what's probably an inherently confusing situation for conservatives trying to make heads or tails. And perhaps sensing the confusion, Andrew wisely added to his post a disclaimer noting that he's not a Texas lawyer.
To make sense of this, you really do need to understand what had been, and was then, going on within Texas. This only makes sense if you understand Texas' fits-and-starts evolution from being reliably dominated by yellow-dog Democrats (with the Democratic Party in Texas containing its own constant struggle between conservatives and liberal/populist forces) to its present conservative Republican-dominated status. But for reasons I'll explain in my usual tedious length in the rest of this post, here's the take-away message for conservatives trying to gather information about Miers: This letter represents Harriet Miers' commitment to, among other things, preserving future options for tort reform. And it would be a mistake to read it too broadly — it's emphatically not, for example, the kind of endorsement of "legislating from the bench" that the WaPo article suggests, nor the kind of statement on classic federal constitutional separation of powers doctrine that Bruce Fein's comments suggest.
It's hard to know how far back to go — this story really has its roots, I guess, in the Civil War and the Dixiecrat "Solid South" after Reconstruction. With the exception of a laughably small number of Congressional seats, Texas was solidly and regularly dominated by the Democratic Party at local, county, and statewide levels, and at the statewide level in every branch and office of government. But the Democratic Party of those days was a different (and most would say, healthier) animal then than now, and there was room within it for a conservative-versus-liberal/populist dynamic that permitted plenty of hard politicking.
Thus it was conservative forces within the Democratic Party who made the first efforts at legislative tort reform in Texas way back in 1977, when the Texas Legislature (both chambers controlled by Dems) passed, and the Governor (conservative Democrat Dolph Briscoe) signed, a new law that was intended to cut back on what conservatives were increasingly perceiving to be "runaway jury awards." The Medical Liability Act of 1977, codified at Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1102, created an inflation-indexed cap, initially set at $500,000, on damage awards (other than for past and future medical bills) in medical malpractice cases (including both noneconomic damages categories like "pain and suffering" and economic damages categories like "lost wages"). The Legislature recognized that it was treading new ground and that its actions might be vulnerable to court challenges on federal or state constitutional grounds, and so it simultaneously passed (id. at § 1103) a provision saying that if the first cap were declared invalid by the courts, an alternative cap of $150,000 on "past and future physical pain and suffering, mental anguish and suffering, consortium, disfigurement, and any other nonpecuniary damage."
As predicted, there were many, many court challenges to the constitutionality of the damages cap, with a variety of somewhat conflicting precedents breaking out among Texas' fourteen intermediate appellate courts, and also among the federal district courts who were occasionally hearing med-mal cases either under traditional "diversity jurisdiction" or sometimes in cases involving the U.S. government as a party. As it happened, one such case from federal court made its way to the U.S. Court of Appeals for the Fifth Circuit, which considered and then rejected arguments that the damages cap was unconstitutional under federal law. Recognizing, however, that the definitive interpretation of the Texas Constitution is, under our system of federalism, left to the state courts of Texas, the Fifth Circuit employed a then-brand new procedure to "certify the question" of the damages cap's constitutionality under the Texas Constitution directly to the Texas Supreme Court. And thus it was that the Texas Supreme Court decided Lucas v. United States, 757 S.W.2d 687 (Tex. 1988) — about which more in just a moment.
To make sense of what's happened since, you absolutely must understand that this period of time, roughly 1987-1988, was the tail-end of the heyday of the plaintiffs' personal injury bar's domination of the Texas Supreme Court. There were still some conservative Democrats on the Texas Supreme Court. And a Republican, Bill Clements, had re-captured the Governorship for his second (non-consecutive) term in 1986, and he'd filled the open Chief Justice seat on the Court with a brilliant young state district judge from Houston, Thomas R. Phillips (about whom, not coincidentally, you'll be reading in the coming week in connection with Ms. Miers' nomination). But Democratic liberal/populists — including in particular two Justices who were very closely aligned in most folks' eyes with the plaintiffs' PI bar, Oscar Mauzy and Bill Kilgarlin — still dominated the Court.
Things had gotten so lopsided that in 1987, the State of Texas got a shiny national black eye from a highly-publicized episode of CBS News' "60 Minutes" program which suggested in fairly blunt terms that through campaign contributions and perhaps otherwise, justice was for sale to the highest bidder on the Texas Supreme Court — with the plaintiffs' PI bar bellying up to the trough. And either wistfully (if you're a plaintiffs' PI lawyer) or ashamedly (if you're any other sort of lawyer), Texas lawyers still refer to the Texas Supreme Court of that era as the "60 Minutes Court."
But between Clements' election and the "60 Minutes" exposé, by the time the Lucas case was decided, it was reasonably clear that a backlash might be beginning — and so it was time for a really creative power-grab by the liberal/populists, who saw their hands beginning to slip from the levers of judicial power. Justice Kilgarlin, though, rose to this task, for as an exercise in populist rabble-rousing and class warfare, his opinion for the Texas Supreme Court majority (over a vigorous dissent by Chief Justice Phillips) was brilliant. As an exercise in judicial logic and dignity, though, it was an absolute travesty. Snagging a fairly obscure "open courts" provision from the Texas Constitution that was clearly intended only to guarantee that no class or type of person would be barred outright from the Texas courts, Justice Kilgarlin declared both the damages cap and its alternative unconstitutional — a result that would be subject to no further appeal and fully binding on both the Texas state-court system and any federal court applying Texas law, including the U.S. Supreme Court and the Fifth Circuit. But his masterstroke was to go further, to lock in this advantage by declaring that the Texas Legislature lacked the power to pass any such damage cap — that it was forbidden to do so by the Texas Constitution!
We hold it is unreasonable and arbitrary for the [Texas L]egislature to conclude that arbitrary damages caps, applicable to all claimants no matter how seriously injured, will help assure a rational relationship between actual damages and amounts awarded.
As a direct result of Lucus, it was not until August of 2003, when the voters of Texas approved an amendment to the Texas Constitution known as Prop 12, that the Texas Legislature was able to begin experimenting with new legislation implementing various sorts of damages caps for civil lawsuits. Their effectiveness is still being tested and debated. But with a stroke of the pen and an outrageous interpretation of the Texas Constitution — judicial activism at its most raw — Bill Kilgarlin's opinion in Lucas not only legislated from the bench in striking down a state statute, but proceeded to handcuff the Texas Legislature on this variety of tort reform for a full fifteen years!
The trend sensed by Justice Kilgarlin did in fact continue. Through his integrity, intelligence, and steadfast leadership — recognized by the increasingly conservative majority in Texas, who reelected him in 1988 and then in every successive election for that seat through 2002 (he retired last year, but could have been reelected to that office for life if he'd chosen) — and with much good help at both county and state-wide levels, Chief Justice Tom Phillips led a top-to-bottom transformation of the Texas courts. Even though Ann Richards regained the Governor's Mansion for the Dems, and even though Republicans didn't capture both chambers of the Legislature until after the 2002 elections, the trend toward Republican domination of the judicial elections at state-wide levels, and throughout most of the state's largest counties (including in Houston and Dallas), generally continued. And Republican Governors Clements, Bush, and Perry have continued making fine appointments to open seats, most of whom have then been reelected by the voters of Texas, and other Republicans have run for and won contested seats outright. Thus has the Texas Supreme Court recently included some names you now know, my conservative out-of-state friends, like Priscilla Owen, John Cornyn, and, yes, Alberto Gonzales.
So by June 1995, when Harriet Miers wrote her letter to then-new Gov. George W. Bush, the situation on the Texas Supreme Court was almost completely reversed from what it had been only seven years earlier at the time of the Lucas decision. Instead of being dominated by judicial activists — Democratic Justices heavily beholden to the plaintiffs' PI bar — the Texas Supreme Court had redeemed its national reputation and returned to its traditional judicial conservatism.
I read a comment on another blog the other day asking why, if Harriet Miers was such a great lawyer, didn't Dubya appoint her to the Texas Supreme Court. I'm reasonably sure that the answer to that question was two-fold: By the time Dubya entered the Governor's Mansion, the Texas Supreme Court was already fixed and in good hands, while he badly needed her instead to go over and fix things over at the Texas Lottery Commission (which was responsible for Texas public school finance revenues of some $7 billion).
Back, finally, to the specific circumstances that prompted Ms. Miers' letter.
To the extent that the liberal/populist wing of the Democratic Party still had much political clout in Texas in 1995, it was in the Texas Legislature. And it was there that their allies in the plaintiffs' PI bar thought they had their best remaining chances to try to keep the brakes on any serious movements toward tort reform. Then, as now, there were many other sorts of tort reform proposals floating around other than damage award caps — and the plaintiffs' PI bar understandably found most threatening to them in particular the proposals that there ought to be some sort of cap, limit, or at least tighter regulation of contingent fee arrangements.
Traditionally, however — and not just in Texas, but commonly across the United States — most regulation of fee arrangements between lawyers and their clients has come from professional ethical constraints. Organizations of state government or quasi-government set up to self-police and regulate the legal profession have typically done most of such regulation, if any, as there has been of attorney-client relationships, contractual and otherwise. But in Texas, and I suspect in most other states, the state legislature also has at least a potential joint role in this area. The requirement in Texas, for example, that a contingent fee agreement must be in writing to be enforceable by the attorney is one of the very rare restrictions on lawyers imposed both by a statute enacted by the Texas Legislature and by the Texas Disciplinary Rules of Professional Conduct promulgated by the Texas Supreme Court — and I'd wager that not many Texas lawyers even know of that statute.
So looking over at the newly-conservative, presumably more tort-reform-friendly Texas Supreme Court in 1995, the plaintiffs' PI bar in Texas became concerned that they might be especially vulnerable there if one of the new Republican Justices decided to launch a crusade to cap or restrict contingent fees through an amendment to the Disciplinary Rules. And accordingly, the plaintiffs' PI bar decided to get their remaining friends in the Texas Legislature to throw up a barrier against any possibility that the Texas Supreme Court might involve itself in creating new caps or limits on their contingent fee arrangements.
And that's the statute — House Bill 2987 — that Harriet Miers was asking then-Gov. Bush to veto! And by doing so, she was not suggesting or endorsing the proposition that the Texas Supreme Court ought to start "legislating from the bench" on matters outside its traditional competency. Nor — despite Mr. Fein's perhaps understandable confusion — was she confused when her letter refers to "balance of power" rather than "separation of powers." The power to regulate lawyers and their fees had traditionally always belonged at least jointly to the Texas Supreme Court; that was indeed the existing "balance of power" she wanted to see preserved. What she wanted to see avoided was a power grab by the Legislature on behalf of the plaintiffs' PI bar — a power grab similar in its motives and likely effects, but dissimilar in its means, to Justice Kilgarlin's power grab in Lucas that so badly upset the "balance" (not separation) of power in 1988. That's the background for why Ms. Miers warned that if House Bill 2987 were passed and the plaintiffs' PI bar were again allowed to demonstrate that it could dominate the Texas Supreme Court at will (this time through the Legislature), then "[o]nce again Texas would be required to hang its head in shame for circumstances driven by a handful of greedy, but immensely rich and powerful lawyers." Harriet Miers, after all, had been (as she notes) a leader among the broader categories of Texas lawyers who'd been ashamed of the "60 Minutes Court" and Lucas. As President of the State Bar of Texas who'd dealt with counterparts in other state bars, and as someone who also worked within the ABA to try to de-politicize that body and return it to its original roots in service to the profession and public, Harriet Miers had strong views on this subject.
Dubya probably would have vetoed this bill anyway. And as it's turned out, the Texas Supreme Court has not yet made any effort to regulate contingent fees. I frankly doubt that it ever will; if such regulation of contingent fees is done for reasons of public policy and economics, rather than for reasons of the professional ethical issues for which the Texas Supreme Court has generally had primary responsibility, I suspect that the Texas Supreme Court is likely to leave that to the Legislature. And it would be a huge stretch to try to draw parallels from Ms. Miers' letter on this topic to how she might rule on genuinely constitutional issues of federal separation of powers, or federal checks and balances, or the constitutionality of Congressional attempts to restrict federal courts' subject-matter jurisdiction on particular topics.
No, friends and neighbors, your take-away message with respect to this letter and this episode in the George W. Bush/Harriet Miers history ought to be: There was Harriet, fighting for principle, fighting for legal ethics and excellence and the dignity of the profession, fighting against the perverse exercise of political power by secret, moneyed interests, and fighting to keep open all possible options for tort reform. When you understand the historical context — as she certainly did — her letter makes much more sense, and indeed becomes much more persuasive. Indeed, the way she reacts here — while from a nonjudicial role, writing (as she emphasized in her very first sentence) only as a former president of the State Bar of Texas — does in fact give useful hints into her personality and her character. No, it doesn't help you predict how she'll rule the next time abortion or any other specific issue comes before the Supreme Court. It doesn't show a specific philosophy of constitutional interpretation either. But it shows how she thinks, how she approaches issues, how she articulates concerns, what kind of interests she thinks deserve protection, and how she reacts to greed and (at least arguable) corruption. And those, too, are good things to know about Justices of the Supreme Court.
Dubya has been watching her react on issues like this one for ten years now. Not just this one, but all kinds of issues involving intersections between law and policy — economic policy, social policy, defense and security policy, political policy, every kind of policy. That's why he's so sure he knows her. For you and me, this letter, this issue, is just one tiny glimpse. But it's a glimpse that ought to comfort us, as John Roberts' memos to Fred Fielding did. And it's a glimpse that ought to remind us of what this nomination is like from the President's perspective — not from ours, for we lack these insights that he's gained over a decade's association with her.
More such insights will probably come out over the next few weeks. We'll get more of them, maybe stronger ones. But reconcile yourselves, gentle readers, to two facts: (a) for absolutely good and valid reasons, this President is not going to make a blanket waiver of attorney-client, work product, and executive privileges to give you, me, the Dems, Reuters, and al Qaida all of the paper trail from Harriet Miers' work for this Administration; and (b) even if we had that paper trail, it still wouldn't give us the full flavor of the experience and insights he has, as Harriet Miers' decade-long client. We'll each have to decide if what we've got, and what we'll get, becomes enough to support her and trust him. So will each senator.
But this particular data point — this particular letter — ought to count in Harriet Miers' favor with any committed conservative who bothers to find out the history and context. And I hope that folks like Mr. Fein, for example, who are marshalling the evidence against her nomination — who are trying to do so out of what I stipulate to be good motives and in good faith — will nevertheless be a little more careful in the conclusions they jump to in the next few weeks.
Saturday, October 15, 2005
The "Trust Dubya" argument well made
Melanie Kirkpatrick, editorial page editor of the Wall Street Journal, says: "Count me out [of the conservative revolt against Harriet Miers] — at least for now." And she says why, in an argument that isn't new or conclusive, but that has rarely been as eloquently made in such a prestigious publication. To those who insist that this isn't dispositive, I again agree — but I say again: It's not just nothin'.
Beldar on JPod on Merritt on Miers
JPod links a post by liberal blogger Jeralyn Merritt over on TalkLeft as another argument that even faint praise from the Left is more reason for the Right to condemn Harriet Miers. Here's a paragraph he didn't quite quote in full, though (boldface mine):
The main thing to keep in mind are the alternatives. From a legal standpoint, we lucked out with both Roberts and Harriet Miers. If she were to withdraw and Bush were then to repay the radical right what they think he owes them, we [on the Left] will be far worse off. We didn't get Wilkerson or Luttig from the 4th Circuit, Rogers Brown, Edith Jones, Priscilla Owen or Alberto Gonzales. But we may, if Harriet is not confirmed.
Now, I'm pretty sure that notwithstanding his disdain for Ms. Miers, JPod would rather see her as the nominee than AGAG. Not even JPod (whose sense of humor I greatly admire) could bring himself to argue from this — "Lo! Behold! Miers must be even to the left of Gonzales, for the Left has said it, and it must therefore be true!"
In fact, Ms. Merritt's post is pretty hard to argue with, from the perspective of someone on the political Left. And she points out one possibility, solidly grounded in both the Constitution and very recent historical precedent, that I don't recall seeing anyone at NRO address yet: If this nomination is defeated, stubborn ol' Dubya may recess-appoint Ms. Miers and wait for the 2006 re-roll of the Senate, then re-nominate her in 2007 and point to her intervening judicial experience and track record from the bench as (new) qualifications. Now, I know Laura tells him to try to control that smirk. But the man has a sense of humor, and he just might think that was pretty funny.
"A" for intentions, "B-" for follow-through
In non-Miers news: Only a lawyer trying to be reader-friendly — but not quite making it — would write a lede like this one:
A federal trial court in Chicago has ruled recently that the ancient legal doctrine of trespass to chattels (meaning trespass to personal property) applies to the interference caused to home computers by spyware.
D'oh! How about, instead, something like this:
A federal trial court in Chicago has ruled recently that the ancient legal doctrine of trespass to chattels (meaning "messin' with someone else's stuff") applies to the interference caused to home computers by spyware.
Friday, October 14, 2005
Fisking NRO's latest anti-Miers manifesto
I present — with ample but goodnatured snark, and without much further ado — a front-to-back fisking of the latest position statement of the editors of the esteemed National Review Online, entitled "Start Over."
That's very good advice — and I strongly suggest that the NRO editors take it immediately! (Their editorial text is in black, my interlineated comments are blue; I've dispensed with my usual block-quote formatting due to its length.)
When President Bush nominated Harriet Miers to the Supreme Court, we called it a missed opportunity. The ensuing debate has confirmed that judgment. One would, of course, have to venture outside the confines of NRO to find both sides of such a debate, and neither can one find much inside NRO to suggest that its editors' and most of its contributors' minds were ever receptive to contrary evidence or argument. For all its fury, a consensus was reached early on that point. Indeed, inside NRO, a furious consensus was reached within approximately thirty minutes after the pick was announced, by which time NRO had already begun spreading vicious misinformation about Ms. Miers' law school and career records and her law firm's reputation (for which they've since properly apologized; but first impressions are what they are.) Leaving aside the president and his employees, even Miers’s fiercest defenders allow that she was not their top pick — or even their tenth. Leave aside too that the Constitution gives the privilege and duty of the pick to the President, and that not even Ms. Miers' fiercest defenders have his decade-long first-hand experience as her client.
There is very little evidence that Harriet Miers is a judicial conservative since (like about half of the Justices ever nominated) she has not previously been a judge, but only helped this Administration pick and vet them, and there are some warnings that she is not if you count hysteria from NRO over the assurances of the President. Miers is said rarely to have raised her voice in the Bush administration’s internal policy debates, but it is known that she was a strong defender of racial preferences when they were being challenged before the Supreme Court. Of course, the passive voice here is useful to conceal the fact that anyone who actually had full access to the Administration's internal debates on what position to take in the Grutter case has a continuing fiduciary obligation to the President to maintain the confidentiality of those privileged discussions. But by all means, despite the lack of on-the-record and for-attribution details, let's trust an oath-breaker who him/herself can't be trusted to keep client confidences, and on the basis of those leaks condemn Ms. Miers, who certainly can. In the end, her influence helped sway the Bush administration to file a brief defending those preferences, which, in turn, helped sway the Court to uphold them. The amicus brief in question, of course, bore not Ms. Miers' name, but that of left-wing radical Solicitor General Ted Olsen. It was widely speculated at the time to reflect a political compromise designed to ensure the President's 2004 reelection by opposing outright quotas but not race-neutral\*/ "plus factors." From this murky political decision, NRO is ready to draw conclusive, iron-clad inferences as to how Ms. Miers, with the protection of a lifetime appointment, might rule as a judge on purely legal issues. But the filing of this brief is of course ultimately a criticism, and I would agree a fair one, of the President, to whom the Administration's position must ultimately be attributed (and who was indeed reelected, thus allowing us to argue over President Bush's nomination of Harriet Miers instead of President Kerry's nomination of Larry Tribe).
Miers’s own career as a lawyer shows a strong tendency to identify with local elites and establishments, such as the time when she took a pro bono case for a single mother against the Department of Health & Human Services all the way to the Supreme Court, to go along with prevailing ideas, like the idea that women couldn't possibly become lawyers, partners, managing partners, state bar presidents, Counsel to the POTUS, etc., and to avoid doing anything that might cause unpleasantness or rock the boat, like risking her own career and the future of her law firm on a merger with a comparably sized cross-state rival. These are useful personality traits, but they are not the traits of a Scalia or a Thomas — the kind of justice this president led conservatives to expect. (Italian- and African-Americans being famous for not challenging "prevailing ideas" and stereotypes either, I suppose.)
Miers’s record on the Dallas City Council has been described as that of someone who was neither liberal nor conservative — not that open-mindedness in an elected municipal position might be a good indicator of a judicial temperament. She rose at the American Bar Association, an organization deeply institutionally hostile to conservatives, whose abandonment of its traditional apolitical service role she bitterly fought in attempting to overturn the ABA's strident pro-Roe position. At the White House she showed herself intensely protective of the ABA, opposing efforts to end its privileged but historically useful role vetting judges — a privilege that the politicized (see above) ABA had used to promote liberal judges and downgrade conservatives ones and that it has been able to continue in large measure because other conservative activists, having less courage than her, fled the institution and left it to liberals. She donated money to the Al Gore campaign, Gore then being a pro-life candidate whose Texas campaign chairman was Rick Perry, Dubya's successor as (by then a Republican) Governor, when her colleagues asked her to, and helped establish an endowed lecture series at Southern Methodist University that brought feminist icons like Gloria Steinem and Susan Faludi to campus, which of course means she agreed with every word those speakers said, whether she picked them or not. She made a point of refusing any affiliation with the Federalist Society while nevertheless appearing as a speaker at its functions and working hand-in-hand with FedSoc Exec-VP Leonard Leo, who became one of her nomination's earliest and most vocal supporters based on his work with her to change the ABA's pro-abortion-on-demand position (see above).
Miers’s supporters argue that her conservatism is reflected in the judicial picking she allegedly did for President Bush. Most of this work was, however, done before she became counsel. Never mind jabbing the Senate Dems in the eye by re-nominating all the circuit judges they'd filibustered — rather dramatically upping the stakes through something more provocative than anything the Administration had done before, 'cause she flees from controversy (see below). And then there's that Roberts fellow. They say that she is pro-life. (Her campaign to get the ABA to stay neutral on abortion lends some credence to that avowal (duh! ya think?), and qualifies, but does not erase, the impression that she flees controversy. Fleeing from controversy being of course the very hallmark of successful courtroom lawyers; I understand that's exactly why Bill Gates' company chose her for a massive class action lawsuit in a hostile forum.) They say that she has a strong evangelical faith. But neither being pro-life or an evangelical is a reliable guide to what kind of jurisprudence she would produce, even on Roe, let alone on other issues. Nothing short of electrodes running from the next Associate Justice's knickers to a car battery at NRO's offices will satisfy these guys. Indeed, the fact that her supporters have had to resort to such weak defenses — and, worse, to pleasant generalities about her kindness to her colleagues and name-calling about her critics’ alleged sexism — is perhaps the most distressing evidence that no stronger arguments are available on behalf of this nomination. Cough-cough-CHOKE — but see 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and counting; but see also this guy, passim, every day during the past two weeks.
We are left with only stray clues to Miers’s value system. Unlike John Roberts, or for that matter Ruth Bader Ginsburg, Stephen Breyer, or Clarence Thomas, Miers comes to the highest Court in the land as practically unknown quality, a gamble for incredibly high stakes. (Unknown and a gamble unless, of course, you're the President, and she's been your lawyer for ten years through thick and thin — in which case you know her better than any President has ever known any SCOTUS nominee in history. In which case you might think she's the right pick precisely because the stakes are so high, and you really don't want to gamble.)
Then there is the related issue of qualification. She has had real accomplishments. One sentence. She does thirty-five years of service to her family, her church, her firm, her profession, the people and Governor of Texas, the people and the President of the United States, and for that thirty-five years, NRO can spare her one sentence, five words, as part of an unrelentingly hostile editorial. And here comes the "but": But it speaks volumes that the president cited her service on a lottery commission as a reason to put her on the Supreme Court. Yeah, let's make fun of her for cleaning up, at the request of the then-Governor, an apparently corrupt public agency upon which Texas public school finance was dependent to the tune of more than $7 billion. Cleaned house in Texas, brought Dubya his coffee at the White House! Bingo, hee-hee! Some of the president’s supporters have argued that excellence does not matter in a Supreme Court nominee — that really any one of 50,000 lawyers could adequately do the job. Link, please? Or are you really suggesting that there are 50,000 lawyers who have qualifications comparable to being, say, Counsel to the POTUS? I certainly wouldn't. This is unconvincing on its face. But if a refutation is needed — and since this is a classic straw man argument, let's pretend a refutation is necessary! — consider the career of Harry Blackmun. Here was a judge — one with the circuit court record which NRO complains that Harriet Miers lacks — described even by his admiring biographer Linda Greenhouse as intellectually insecure. Like Miers, he too was devoted to local establishments: the Mayo clinic in his case rather than the ABA. Sure he was a loyal Republican; but almost as soon as he arrived on the Court, he was transformed. And Richard Nixon did not know him from Adam; could that maybe have been the problem?
So, we have reason to fear, will be the case with Miers. And even if she does not become a Blackmun, her record strongly suggests she will be an O’Connor — a split-the-difference judge. This would be the same record you've just said she doesn't have one of, right? As one of her former colleagues has said of her, Miers’s office was the "place where the action stopped and the hand-wringing began." We all know that action and not carefulness is what those SCOTUS superheroes are all about! Ahh-nuld for SCOTUS! If she follows that course, we will be left with a Court that retains immense and inappropriate lawmaking power but refuses to make clear laws. Yikes! Major editing error! "Make ... laws"?!? Surely you mean "write clear opinions," NROniks! Not that a practicing lawyer and experienced business manager might bring anything useful to the existing
eggheads distinguished members of the Court. The rule of law, like the career of every successful courtroom lawyer, is based on the making of arguments and the giving of reasons, not on sentiment or group loyalty — which is the basis on which Miers’s defenders want us to support her. $100 to the first NRO editor who finds that argument in those words coming from me or Hewitt — or for that matter, from the President. Those sound instead like arguments that could be characterized as justifications for "cronyism" — an ugly, disparaging, mocking term that this editorial, to its credit (but unlike much other NRO punditry of late), manages to avoid.
"The president trusts her," is not a good enough argument. But it's not nothing, either. (See above, re Blackmun; see also Kennedy, Souter, et al.) The president has trusted a lot of people, some of whom have worked out fine, others less so. To which category will Harriet Miers belong? Perhaps the same category as all his other judicial nominees (except the Clinton leftovers), d'ya think? No President can bat 1.000 on every nominee to every single office; but this one has a pretty fabulous record so far on his judicial appointments, through and including our new Chief Justice. It is possible that the confirmation hearings will shed light on that question. Not that NRO will wait for those before making up its collective institutional mind, circulating an online petition, etc. But we doubt it, given the ease with which nominees can sidestep searching questions. No, no, no — searching questions are fine, but it takes a fairly sharp senator to frame one. What's not okay is nominees giving precommitments on how they'll rule, apparently in exchange for confirmation votes. Y'all know that; you're just being purposefully dull here, I think. How many of you didn't feel better about Chief Justice Roberts after his hearings?
What, then, should be done? Some conservatives have called on the president to withdraw her nomination, and a few have urged senators to vote against her. And some have gotten their knickers so twisted that even Bill Clinton couldn't untwist 'em. If the president withdrew the nomination, we believe that he would seek a replacement who could unite conservatives — as he no doubt expected Miers to unite them — and then prompt a filibuster that, due to the Republican half of the Gang of Fourteen's well-meaning idiocy, couldn't be broken. But that nominee would be tarnished, perhaps fatally, by the suspicion that the president was forced to pander to the Right. The president, moreover, surely does not want to risk looking less than strong and steadfast. "Strong and steadfast" would, of course, be defending and sticking with an able nominee against panic and hysteria; much better he should look like he picked a sissy who runs from trouble. The prudent course is for Miers to withdraw her own nomination in the interests of the president she loyally serves. Cue Dana Carvey's Poppy imitation: "Nuh-uh, wouldn't be pru-dent!" Loyal service does not mean capitulating despite the wishes of the President she's served for ten years. The president could then start over. Ramesh is muttering, "Be still my heart!" Ponnuru for SCOTUS, it's a groundswell! Both he and his party would probably benefit from having the clear fight over the direction of the courts that only a new nominee would allow. And after that clear fight, when the next nominee is shot down in flames after a successful Dem filibuster, we can all toast marshmallows together! But for that to happen, some conservative senators are going to have to send a diplomatic message to the White House. Another editing/logic error, guys — you just said a few lines up that it's supposed to be Ms. Miers who falls on her sword, not Dubya and the senators who stab her. Ya know, I'll bet Harriet Miers would have caught these errors.
And conservatives and the White House will have to restore their working relationship. Some hard and ill-considered words (amen) have been said on both sides (amen), but it is time (amen!) for all involved (Preach it, brothers and sisters! Amen!) to follow their interests (@&$!#@*#@%&^!!!), instead of their resentments. Guys, it's not all about you, or your interests, nor me or mine. It's about the Court and the Nation. Let's work together, patiently and without spite, being solicitous of one another's feelings and opinions, toward that end. Okay?
\*/UPDATE (Sat Oct 15 @ 1:00am): I added the word "race-neutral" to my fisk above after re-reading the actual amicus brief, which effort I strongly, strongly recommend to anyone who is ready to condemn Harriet Miers' nomination based on doubts about her position on affirmative action. (See also the contemporaneous White House statement about the brief.) I'd forgotten that the Administration's amicus brief in fact asked the Supreme Court to strike down the University of Michigan Law School's program on grounds that it (like the undergraduate program striken down in the companion Gratz case) was really a disguised racial quota. What drew fire from serious conservatives at the time was the Administration's failure to condemn outright Justice Powell's separate opinion in Bakke with its "race as a plus-factor" analysis — i.e., to go all the way to a true color-blind Constitution that takes the Fourteenth Amendment to mean exactly what it says — and Bob Novak and others attributed that "failure" at the time not to Ms. Miers, but to then-White House Counsel Alberto Gonzales. But this amicus brief was still far to the right of where Justice O'Connor's opinion ultimately came out; and indeed, even to a committed considervative, it is actually defensible on tactical grounds (a la the Thurgood Marshall "nibble strategy" used effectively in Sweatt v. Painter, for instance) in that it would have overturned the Michigan Law program without asking the Court to directly overrule any of its prior precedents. Before you use it to argue that Ms. Miers supports racial preferences, read the brief!
Miers, lesser-known aspects of the Constitution, and senatorial gotchas
Hoover Institution senior fellow and NRO contributor Peter Robinson today joined the off-key chorus of those singing shrill warnings about how SCOTUS nominee Harriet Miers is likely to be embarrassed in her confirmation hearings by noted constitutional law scholars like Slow Joe Biden (76th out of 85 in his class at Syracuse Law):
Item: On Brit Hume's show last night, Fred Barnes announced that Miers might have trouble during her hearings, but only if senators set out to embarrass her by asking her about "the third amendment," "the seventh amendment," and other, lesser-known aspects of the Constitution. Think about that for a moment. I mean, really. Just think about it. The third and seventh amendment are parts of the Bill of Rights. Asking Ms. Miers to demonstrate at least rudimentary knowledge of the Bill of Rights would represent an unfair and hostile action? This is what the Miers nomination is doing to us.
In response, NRO's Jonah ("Blessed as a Peacemaker") Goldberg — also the author of a very funny yet reflective column today that concludes "Take plenty of fluids, wait for the hearings, this fever will pass" — offers up this sly bon mot as a comment on just how important some of those "lesser-known amendments" really are:
I am a third amendment enthusiast. I've simply been waiting (and waiting, and waiting) to be single issue voter on the subject.
("If it would help, I could put on a uniform?" — The Couch)
And Mr. Robinson's amigo Hugh Hewitt takes him fondly but firmly to task:
As for the Third Amendment, or the Seventh, or the Ninth, or the dormant commerce clause or the damned 11th Amendment which is almost impossible to teach — the questions being compiled by the Cornerites have almost nothing to do with judging! Do they think John Roberts was prepared to discuss the quartering of troops in private homes?
Alas, this was a rare misstep by Brother Hugh, for our new Chief Justice did indeed discuss the Third Amendment in his confirmation hearings, and even brought up the subject himself:
SPECTER: ... Do you believe today that the right to privacy does exist in the Constitution?
ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways.
It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.
It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.
It protects privacy in matters of conscience.
It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.
I remembered this exchange because it struck me at the time how this answer sounded, even reads, like how an opinion refusing to further extend Griswold v. Connecticut might begin. (Thus far; no farther.) But note, however, that our new Chief Justice didn't go into a discussion of Third Amendment precedents. There just aren't many.
John Roberts' grasp and sheer memory of Supreme Court precedent, and by no means limited to con law cases, is indeed almost superhuman. But he's never tried a case, never even taken a deposition. Does Mr. Robinson not recognize that there are vast areas of pretrial and trial procedure on which, unless they happen to have come up in one of his own appellate cases, our new Chief Justice might also have been stumped? Does Mr. Robinson think the President, the Senators, and the public are entirely incapable of appreciating different kinds of smarts?
But indeed, even when it comes to "lesser-known aspects" of the Constitution, Ms. Miers has something in her practice background that even Chief Justice Roberts can't claim — something that prompted me to fire off an email to Mr. Robinson that I reprint here (with slight alterations and with apologies to my regular readers who will recognize some of it as having been lifted in part from one of my earlier posts):
You're aware, I assume, that Harriet Miers — who you're busy suggesting has never read or retained the basic contents of the Constitution and its small handful of Amendments — litigated Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex), aff'd mem., 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001), which is one of the only reported cases in the history of the Republic on the Twelfth Amendment to the United States Constitution.
You personally were intimately familiar with the Twelfth Amendment a month ago, were you not? Oh, of course you were! Among the legal elites here in Texas, we speak of little else, so I'm sure the same must be true of Cornerites and the good fellows of the Hoover Institution.
The stakes were merely whether both George W. Bush and Richard B. Cheney could receive votes from the Texas electors in the 2000 election. In other words, if Ms. Miers had lost, the Supreme Court's decision in Bush v. Gore would have become moot.
Ms. Miers' opposition in Jones v. Bush was merely Sanford Levinson (BA-Duke, PhD-Harvard, JD-Stanford), the "W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law" at the University of Texas School of Law, author of over 200 articles in professional and more popular journals, co-author of a leading constitutional law casebook, who's also been a visiting law prof at Harvard, Yale, NYU, and BU. This would be the same Sandy Levinson quoted in today's WaPo as saying of Harriet Miers (emphasis mine): "The only thing to infer from this [case] is that she's a good lawyer." Because how'd she do? As Prof. Levinson's gracious comment suggests, she did pretty well: She beat Prof. Levinson like a drum, not once, but three times on this case — in federal district court, then in the Fifth Circuit, then on the certiorari petition in the U.S. Supreme Court.
This, by the way, is only one of three of Ms. Miers' reported appellate cases that included constitutional law issues. But I don't know how you guys have gotten the notion that "constitutional law" is tougher than brain surgery and rocket science combined. I guarantee you that there are aspects of tax law and securities law and contract law and tort law and a dozen other legal specialties that are every bit as difficult as constitutional law. The cases on those subjects that top courtroom lawyers regularly argue, and that federal courts (including the Supreme Court) regularly decide (with more frequency than they address pure con-law subjects), are every bit as intellectually challenging.
Moreover, any nominee could be tripped up by some senator who's pulled one book at random from among the 530-plus volumes of United States Reports, flipped it open to a random page, and asked: "What about the Supreme Court's holding in 1930 in the case of Hopkins v. Bacon? Do you agree or disagree with that case's analysis of the proper treatment under the federal income tax code of a spouse's interest in income received by the community estate in Texas, as opposed to California or Arizona?" I suspect that John Roberts would no more have known how to answer that question than Harriet Miers would have. Senators who are simply trying to play "gotcha" will be recognized as doing that — and it is they who will be mocked, not Ms. Miers. There is a reason that lawyers — including lawyers who are Justices on the Supreme Court — have online and hard-copy law libraries (with elaborate systems of indices and digests and cross-referencing): It's because we look stuff up when we need it, because there's too much of it for any of us to carry around in our heads.
Ms. Miers' own constitutional law professor still remembers her — after almost 40 years! — and has been quoted as saying she was an "excellent student" who was "very well prepared." Professors, colleagues, opponents, judges, and clients (including one nicknamed "Dubya") all seem to believe that she has the intellectual chops. It seems to be only in the minds of her nomination's opponents that she's chopped liver.
That WaPo article, although inaptly headlined, is a nice piece of reporting and well worth reading for anyone interested in Ms. Miers' record as a practicing lawyer. Also worth a look for its original reporting is this AP article. (It does contain one obvious mistake, perhaps introduced in editing, when it says "[i]n private practice with [Locke Purnell] and its successors, she was the counsel of record for only about 20 cases." That's about right for reported cases, which are only those producing a formal written opinion from the judge that he/she has in turn designated for widespread publication, which tends to happen mostly with appellate decisions and a very few federal trial court decisions. But I'd bet a randomly chosen body part that she's been "counsel of record" — that is, among lawyers who've entered a formal appearance with the trial or appellate court — in hundreds of cases over her career.) The AP article reveals, for example, that what I'd previously thought was one of Ms. Miers' rare losses — the Microsoft class action case — actually turned into a win: After losing an interlocutory appeal, Ms. Miers nevertheless persuaded the trial judge who'd earlier ruled against Microsoft to reverse herself and de-certify the class. Do you have any idea how hard it is, in general, to persuade a trial judge who's already been affirmed on appeal on a particular point to reverse herself?
And note in particular in both articles how many of Ms. Miers' defeated opponents from the courtroom, in addition to Prof. Levinson, also had complimentary things to say about her. I hope that the critics of Ms. Miers' nomination from the political Right will be equally as gracious after she becomes Justice Miers, but I'm certain she will be gracious to and about them.
Thursday, October 13, 2005
Professor Kingsfield and the Miers confirmation hearings
I have this impression that those predicting that Harriet Miers will absolutely, positively crash and burn during her Senate confirmation hearings — under brutal questioning from the likes of Slow Joe Biden or any other member of the Judiciary Committee — themselves have in mind that scene in The Paper Chase in which Prof. Kingsfield (fabulously played by John Houseman) said, "Mistah Haaaaaht! Here is a dime! Go and telephone your mah-ther, and tell her that there is ... substantial ... doubt-(tah!) ... about your eh-vahh! ... becoming! ... a laaaah-yah!"
I don't think that will happen. For one thing, not one of the senators likely to be firing off hostile questions to Ms. Miers has a tenth of the dignity and aplomb that John Houseman had as the fictional (but entirely realistic) Professor Kingsfield.
But if it happens, I hope that Ms. Miers will have the panache to say something like, "You ... are a SON OF A BITCH, Sen. Schumer!"
All America will agree, but I seriously doubt that Sen. Schumer will have the presence of mind or the grace to say in response: "Ms. Miers! That is the most ... intelligent ... thing you've said all day!"
But no. Ms. Miers will almost certainly be far more restrained, and far less cinematic. Still, if she has even a bit of a flair for drama, she might come up with something equally as good, or better, as the Timothy Bottoms character, James T. Hart, shot back at Professor Kingsfield. After all, if she chooses to serve up charges against the opposing senators along the lines that Mr. Hart did against Professor Kingsfield — the truth will be on her side.
National Review abandons any pretense of neutrality, open-mindedness on Miers nomination
One can't plausibly claim to be surprised when an online or on-dead-trees magazine specializing in political opinions and punditry takes a definitive position and advocates it. So I don't suppose I'm surprised to see the venerable National Review present an online "Petition for the Withdrawal of the Nomination of Harriet Miers to the U.S. Supreme Court."
But here's my point, in one sentence (followed of course by many, many others, as is my wont): I don't condemn NR/NRO for putting up this petition, but I genuinely lament what it says about the nature of their further participation in the debate.
This isn't an informal internet straw poll of the sort that InstaPundit and Prof. Bainbridge have posted. This isn't a method for NR and NRO readers to present their positions — pro, con, or neutral — to the Administration. Rather, this petition very directly requires its signers to declare, as their bases for the demanded withdrawal of her nomination, that Harriet Miers is NOT —
"a person of clear, consistent, and unashamed conservative judicial philosophy";
"a person of unquestioned personal and political independence";
"someone who has demonstrated a deep engagement in the constitutional issues that regularly come before the Supreme Court — and an appreciation of the originalist perspective on those issues"; nor
"a person of the highest standard of intellectual and legal excellence."
(The words "hack," "dullard," "corrupt," "crony," and "squish" don't appear, but they do shout rather loudly from the subtext, at least as I interpret it.)
To submit one's constructive (i.e., online) signature, one must provide a valid email address, and one's first name, middle initial, and last name. One must also "acknowledge" that "the information submitted here is entirely accurate to the best of [the signer's] knowledge without any withholding or embellishment of the truth" — which I interpret to refer to the "information" purportedly about Ms. Miers, since it would be rather hard to "[embellish] the truth" of one's email address or name. I don't know why they don't just go ahead and ask you to swear, on penalty of perjury, that you really, really believe this is a horrible nomination and nominee.
You have a binary choice: Either endorse each and every one of this petition's propositions, collectively and without reservation — or close your browser window on it. (I chose the latter.)
The petition is stated to be the handiwork of NR contributing editor, NRO diarist/blogger, newspaper columnist, and former White House speechwriter David Frum, with input from others. But Mr. Frum's diary post directing readers to the petition speaks repeatedly of "we," with no subset short of the entirety of National Review being indicated. One grants to "National Review," for example — not Mr. Frum personally, nor any special- and limited-purpose group — the "right to use the information submitted here" to "verify [each signer's] identity." NRO editor (and NR associate editor) Kathryn Jean Lopez has linked the petition from their "Bench Memos" blog, under the heading "Harriet Miers Petition" and with this brief text entry: "David Frum has one up." She does not suggest, however, that he speaks only for himself, or for less than the entire institution. If this is not intended as an editorial position of both NRO and NR, there is no obvious way to divine any limitation. (Although fairly imputable on these facts to the institution, however, I don't think this petition may fairly be imputed individually to all NR/NRO contributors.)
Before commenting directly on this petition, I have important caveats that I want to make absolutely clear. That which follows is more than a rote assertion:
Before the Miers nomination, I respected and admired the National Review, both its online and on-dead-trees versions, and its various contributors. I've frequently agreed, and sometimes disagreed very strongly, with their various positions and those taken by the publication as a whole. But I've subscribed, and I've read, and I've linked — all regularly. I will continue to do so. I still respect and admire NR/NRO, my current large disagreement over the Miers nomination notwithstanding. I do not question their patriotism, nor their credentials as conservatives of good will, passion, and intellect. I have no doubt whatsoever that in the future, I will again agree, and sometimes also disagree, with other positions taken by NR/NRO as an institution, and other positions taken individually by various of its contributors. If they'd ever come to Houston (an excellent idea, given that Rich Lowry didn't know until two weeks ago that Houston's the fourth largest city in the country), I'd gladly buy a round of drinks for the whole gang, and two for Mr. Frum. (Sour apple martinis for him, though. (That's a joke, David, I'm smiling as I write it.)) I do not condemn them; I do not call on any subscribers to cancel their subscriptions, nor on anyone to email K-Lo or Frum or anyone else there to express reservations or outrage over the petition.
And I most emphatically am not going to try to start up a counter-petition! I hate public opinion polls; and amateur versions are worse in general than the ones the
real whores trained professionals create. My considered and consistent view is that I've already voted on this — in a fashion vastly more solemn and meaningful, albeit indirect — when I cast my votes for President Bush and for Texas' two senators, Kay Bailey Hutchinson and John Cornyn. If I sense any of them waivering, or have any particular input that I think they need and otherwise lack, I know how to reach them.
I also do not hold to the view that anyone outside the Administration has a duty to "shut up and go along with the President" — not pundits, not ex-WH staffers, not the members of the public, and not the Senators who have a constitutional role to provide (or withhold) advice and consent. I am not arguing against debate; I am not arguing against skepticism. From what I know now about the nominee, I believe she ought to be confirmed. But I know there are known unknowns about her, and probably some unknown unknowns too, in the words of my favorite metaphysical Defense Secretary.
Nor do I think it's productive for either side to make threats or to predict dire consequences. I do not, for example, shout, "How dare they!" when the petition warns that "[a]n attempt to push her nomination through the Senate will only split the Republican party, damage the Bush presidency, and cast doubts upon the Court itself." Maybe it will, maybe it won't. I really, really didn't want the people at National Lampoon to kill that dog, either; but I didn't buy that magazine and yet, as as far as I know, the dog survived. Seeing which side can lay a better guilt trip on the other contributes nothing productive to getting an appropriate replacement for Sandra Day O'Connor confirmed, whether that turns out to be Ms. Miers or not. Shaking our spears and rattles at each other and screaming "Terrible consequences! High stakes!" just makes everyone's blood pressure go up to no good purpose. And in fact, my new resolution (as of late today) is that if I think someone's guilty of improvident blood pressure elevating, I'll tell them so by email rather than by blogging, and if they ignore that, then I'll ignore the fact that they've ignored it, and proceed to ignore the attempted guilt-tripping.
Having said and meant all of that, however:
While I'm unsurprised by this petition, I still deeply regret seeing it. Harriet Miers has yet to give a word of testimony at her confirmation hearing. Her paper trail is still being assembled and combed. Additional facts pertaining to her qualifications are still pouring in — this White House having no more done a complete job of gathering all of those facts, predigesting, and regurgitating them simultaneously with her nomination than it did with John Roberts', or than any White House has ever done with any SCOTUS nomination.
By no means have NRO or NR been the only skeptics or critics of Ms. Miers' nomination. But they were among the first. They were among the most factually inaccurate (a black eye that will take a while to heal, I fear). They have been among the most influential. To varying degrees depending on whom one reads, they continue to be among the most vehement. And now it appears that institutionally, they're in the biggest hurry both to commit themselves, and to get other people on record against this nominee.
Why? Why the incredible hurry? Anyone capable of finding this petition online is certainly capable of finding his or her way to the White House's website, or to his or her senators' websites. Any of their readers who are in a hurry need not wait to have a say through other means.
And why the one-sided slant — a petition that permits only one set of opinions, and those being pre-dialed up to eleven? Surely as seasoned political advocates, they understand that their results would be far more credible if they weren't pre-channeled in only one direction. Let's say they get 50,000 "signers," or 100,000, or 1,000,000. What's the obvious, inevitable response going to be when Mr. Frum carries the boxes of printouts (or the CD-ROM, whatever) over to the the White House to thrust it into Dubya's (or more likely, Andy Card's) face?
"Well [cough-cough], David [cough], it's good to see you again, and this is very interesting — but we had just over 62 million votes in the last election, and 78 Senators voting 'Aye' on the last nominee. So thanks, we'll consider this carefully [cough-cough], for exactly what it's worth. Hey, how's that golf game coming along?"
Yet in the meantime, if you had any doubt whatsoever that Mr. Frum and (we must presume) those among the NR brass who've authorized this petition have any objectivity, or even the barest hint of an open mind left, with respect to this nomination — that's gone now. And that's a genuine shame, because there are a lot of smart folks there whose voices have now been rendered much, much less relevant.
Move over, NARAL, and grab your earplugs, 'cause you've now got some noisy company in that bed. This petition doesn't mean they're bad, or even that they're wrong, it just means they've made up their minds and ... closed 'em.
UPDATE (Thu Oct 13 @ 9:15am): Yup, Mr. Frum's petition is now linked from The Corner, too. The Institution has taken a stand, for better or worse. "Want to be heard?" asks K-Lo in the title. Oh yeah. Hear me roar (provided I am anti and over the top with it).
UPDATE (Fri Oct 14 @ 3:30am): K-Lo clarifies:
I've gotten some question re: whether the petition David Frum has created is officially endorsed by NRO. I think it's fair to say a good number of us agree with the principles outlined. It's David's petition though, no official NR/NRO thing. What's the difference, you ask? David, Joe Schmo, Kathryn, whoever, write things on NRO (or in NROdT) all the time which do not represent a corporate position. I'd take the petition in the same spirit. Whether NRO writers want to sign up is up to them.
I'll take this at exactly face value, but I also note that as a disclaimer of institutional commitment it's late, weak, and not very prominent. One would think that if the poll is indeed just "David's petition," it would say that on the petition webpage itself, for instance, simply in the interest of accuracy. As of this moment, the petition web page itself has been slightly modified to delete its original optional pull-down menu field that offered several choices, somewhat oddly worded, to permit signers to indicate if they are lawyers or in related fields. What looks at first glance to be an automated counter, presently reading "2,160 and counting," actually isn't automated but just regular .html text that will need to be manually updated. I'm not sure when it was last edited, and so will withhold comment other than to say that it at least looks to be running behind the response rate on Prof. Reynolds' straw poll — presently almost 14,000 votes, with 54 percent favoring withdrawal and 46 percent opposing it. (Even that response rate is fairly underwhelming, given Prof. Reynolds' typical six-figure daily page-views rate.)
A few readers have taken me to task in the comments to this post for an ostensible double-standard: How dare I fulminate against NR/NRO for advocating a position, when I'm also taking a position? To which I say: First, re-read the first two paragraphs of this post, particularly the first sentence. Second, my blog is a solo effort, and no question of "institutional" endorsement arises. And third and most important, I'm doing my best to keep an open mind myself, despite my biases and my current position (all disclosed as carefully as I can), because I believe there is a lot of relevant information yet to be gathered and distributed, and also because I strongly suspect that some of what's currently floating around is inaccurate or being spun wildly out of context. The point of Mr. Frum's petition, by contrast, is to summarily end the nomination immediately, before the nominee has had any public opportunity to respond; the petition does not seek to push the nomination toward an eventual ultimate rejection, but rather to push it immediately off a cliff. I therefore deny that I'm using a double-standard. But as always, gentle readers, you're entitled to reach the opposite conclusion; and I did provide a link to Mr. Frum's petition in case you'd like to add your voices to his and his NR/NRO allies in urging that Ms. Miers' voice in support of herself and her nomination be prematurely, permanently silenced.
Wednesday, October 12, 2005
Miers' campaign contributions to Gore and Bentsen
For the primary benefit of my out-of-state readers: Eloquent and politically knowledgeable left-of-center Houston blogger Charles Kuffner, despite being a skeptic of Harriet Miers' nomination to the Supreme Court, absolutely nails those on the right who're all aflutter about Ms. Miers' 1988 contributions, presumably made as a sober, mature woman, to Democrats Al Gore and Lloyd Bentsen (links in original, boldface mine):
Listen to me closely, because I'm just going to say this once: Rick Perry, our beloved-by-the-conservative-base Governor, a man for whom anyone who is anyone in the Republican Party was doing their level best a few months ago to persuade Kay Bailey Hutchison to stay away from [in] next year's gubernatorial primary, was the Texas state chairman of Al Gore's 1988 presidential bid. He was 38 years old at the time (how sober he may have been is a question I am unable to answer adequately). I'll freely admit we know a lot more about what Rick Perry stands for than we do about Ms. Miers, though there's a pretty simple way to resolve that particular conundrum. My point is just that Texas was a very different place in 1988 than it is today. If you don't understand that, you should probably yield to someone who does.
(For extra credit, buy yourself a copy of Fifty Years of the Texas Observer and read about what the liberal wing of the Texas Democratic Party thought of Lloyd Bentsen in 1970, when he successfully ousted progressive hero Ralph Yarborough in the primary.)
Ayup. What he said. And to save you the cost of the Observer, the liberal wing thought Bentsen was a fascist tool of the banking and insurance industries. The broader story it tells over the last fifty years is how conservatives and liberal/progressives, nominally Democrats all, have battled tooth and nail through the decades when Texas was an overwhelmingly one-party (i.e., Democrat-only) state. It is a great story, albeit a politically (and sometimes literally) violent one. Just remember that this is a state in which Lyndon Baines Johnson — who was probably the most wickedly gifted and giftedly wicked natural politician of the Twentieth Century on the national stage — was considered to have only average intra-state political skills for much of his career.
Miers and the Texas Lottery: One riot, one ranger
On NRO's The Corner, John J. Miller posted this today under the heading "Call Her The Gambler" (hyperlinks in original):
Hugh Hewitt has now criticized me twice (at least) for raising a simple question earlier this week: Why aren’t evangelicals more concerned about the fact that Harriet Miers ran the Texas lottery? Memo to HH: Of course I recognize that evangelicals make up a diverse group with varied opinions on the merits and morals of gambling. But a large number of them also oppose it passionately. Earlier this year, Jim Dobson, Chuck Colson, and more than 200 other religious leaders signed an open letter that called gambling a “menace to our national welfare." Well, what’s the Texas lottery if not state-sponsored gambling? (Go here for more evangelical perspectives on lotteries.) Miers’ public record is thin, but the Texas lottery is part of it. Perhaps she disagrees with Dobson and other evangelical leaders on whether governments should be in the gambling business. Perhaps she even took the lottery job, as Hewitt suggests, “with the aim of improving it” (whatever that means). I would certainly like to know more. I just wish Hewitt didn’t consider the question inconvenient.
Of course, this drips with the implication, intended or not, that there's something hypocritical about not only "evangelicals," but also Ms. Miers. But let's give Mr. Miller credit, and presume that he wasn't trying to frame a "when'd ya stop beating your wife" question. (If he was, I hope to show that it didn't work.) I can't speak for Hugh, nor for Ms. Miers, nor for evangelicals — but I think there's an extremely obvious and plausible answer.
Long, familiar story told very short: The creation of the Texas Lottery was indeed controversial — and not just among evangelicals. Of course some of the opposition was based on religious views, but there were also substantial objections that had nothing directly to do with religion or even morality. Ultimately, however, the proponents of the proposed lottery — and especially those who argued that Texans were playing other states' lotteries anyway, enriching those states with revenue streams that ought to be used for noble purposes within Texas — carried the day. For good or for ill, the people spoke through their elected officials, and the Texas Lottery came into being. Some future Texas Legislature may change or abolish it, but since well before George W. Bush took office as Governor of Texas, the Texas Lottery has been a fait accompli.
And while one may argue whether its performance has lived up to expectations, no one can doubt that the Texas Lottery has indeed become an important source of public revenues in this state. According to its website, of every $1.00 received by the Texas Lottery: 58¢ goes back out in prize money, 7¢ goes to lottery administration, and 5¢ goes to the retailers who sell the tickets. That means that 30¢ of every $1.00 goes to the Texas Foundation School Fund:
The Texas Lottery has contributed more than $7 billion to the Foundation School Fund! The Texas Education Agency administers the Fund, which is used for school districts' public education services at the local level.
That $7 billion is the biggest part of the more than $12 billion in revenue the Texas Lottery has generated for Texas since the first lottery ticket was sold in May 1992. Lottery revenues have gone to the Foundation School Fund since September 1, 1997, as directed by the State Legislature. Prior to that date, they were allocated to the General Revenue Fund.
Unclaimed lottery prize funds revert to the State to be appropriated for health care, medical education, and other programs authorized by the state legislature.
Again, to grossly oversimplify: We're still fighting tooth and nail about public school finance issues in Texas, and we have been for decades now. But regardless of whether one approved of the Texas Lottery's creation or approves of its continued operation, and regardless of whether one wishes to support it by buying tickets, the revenue stream from the Texas Lottery — and that revenue stream's importance to Texas governance and in particular to public education in Texas — cannot be ignored by whoever sits in the Governor's Mansion in Austin.
By the time George W. Bush became Governor, serious problems had arisen inside then-still-young Texas Lottery. There were, at a minimum, serious appearances of impropriety and incompetence that neither he nor any other Governor of Texas could ignore. Dubya needed a trouble-shooter, a fix-it person — someone in whom he had boundless confidence as to both her effectiveness and her integrity. In the grand Texas tradition of "one riot, one ranger," he asked Harriet Miers to do that ugly, vital job.
What went through her mind when he asked? I don't know; perhaps we'll learn something of that during her confirmation hearings. But my strong hunch is that her first reaction was intensely negative.
Let's again put religion and morality and ethics completely aside for a moment: The Texas Lottery, and any lottery, is a sucker's play from a purely mathematical standpoint. Lotteries have aptly been called a tax on morons, voluntarily and eagerly assumed by them. Oh yes, courtroom lawyers are gamblers by nature, and we have to be. But to the extent that the gambling metaphor fits our professional activities (and it does fit, reasonably well), we're poker players, friends and neighbors, and we're committed to the notion that by vigorously and creatively representing our clients within the bounds of law and ethics, we can reduce randomness and, perhaps sometimes, beat the odds through skill and preparation. Personally, I've never spent a single thin dime on the Texas Lottery, and I never will.
Nor was taking a position at the head of the Lottery Commission a résumé credential for someone who'd already progressed along Harriet Miers' career path. (Indeed, her critics scoff at it now.) It was, at best, a sidestep, and one fraught with huge risks if she failed — risks that could have ended not just her work at the Lottery, but for all practical purposes her entire professional career.
And finally, if we do make some reasonable assumptions about Ms. Miers' faith and how it might affect her views of the Texas Lottery: Her reflexive shudder upon being asked to take up this particular task may have been long and profound indeed. This will strike you as either corny or self-evident for me to say, but I'm quite sure that she prayed about it. And it wouldn't surprise me if she and Dubya prayed together about it.
But the consistent, dominant theme of Harriet Miers' life has been service: Service to her family, her church, her community, her law firm, her profession, and to her clients (both paying and pro bono). George W. Bush gave her the opportunity for service to the State of Texas and its Governor. Recall that she has shown personal courage, and dedication to principle despite swift countercurrents, when she fought to return the American Bar Association to its original apolitical status as a service organization — even though to do so, she had to risk being identified unfairly (as is now in fact happening) with the modern, politicized ABA's pro-abortion agenda.
The Texas Lottery was going to go forward no matter her answer; the only question was, on a going-forward basis, would it be (and appear to be) competent and clean (at least as much as a state-run lottery can be), or would it be (or appear to be) incompetent and corrupt? So when Dubya asked, what ultimately happened was that Harriet Miers apparently gulped down any reservations she may have had, and then she saluted. (Not a mindless robotic salute; a knowing and dutiful salute.) She took the job, she rolled up her sleeves, she started digging, she started applying her fact-gathering and management skills, and then she started taking names and kicking butt. (The name-taking was quite literal; the butt-kicking was metaphorical, but nevertheless no doubt quite impressive to those who found themselves suddenly and dramatically unemployed.)
Some pundits are muttering ominously and self-importantly about imminent "surprises" having to do with Ms. Miers' involvement with the Texas Lottery which they say are about to break into the public consciousness. Well, okay; maybe. Color me very skeptical, because anything that could be used to discredit Ms. Miers could also have been used to discredit Dubya, and there's been no shortage of people down here in Texas looking for ways to discredit Dubya for the last decade or more. (Think Ben Barnes and Mary Mapes and you'll only have scratched the surface. The whole Ben Barnes/TANG story began in civil litigation over Texas Lottery problems. One wonders who may be out scouting for late 1990s-era word processing software and printers even as you read this.) So we'll see what happens. But from my viewpoint as a Texan today, on the most elemental, macroscopic level, Harriet Miers' service with the Texas Lottery can be boiled down to this: (a) Broken before she went there, and (b) Fixed when she left. Oh, sure, she had some help, as I know she'd be the first to insist. But still, in the big picture: One riot, one ranger; then no more riot.
(This, of course, is bound to become the subject of smug tittering like her service to the Bush-43 Administration, and thereby the Nation, as White House Staff Secretary. "Oh, she not only served coffee at the White House, she cleaned house back in Texas!" No good deed goes unpunished, it seems, nor great deed unmocked.)
Regardless of what you, she, or any of them think about the ethical and moral and religious implications of the Texas Lottery, Mr. Miller, evangelicals and other fair-minded people aren't more concerned about the fact that Harriet Miers ran the Texas Lottery because they recognize that it was critically important to the State of Texas — to its Governor, its legislators, its citizens, and especially to its children — that someone brave, competent, and responsible step up to fix its problems. She was (indeed, she still is) — and so she did.
Tuesday, October 11, 2005
The single best criticism of the Miers nomination
Life tenure is, of course, the proverbial double-edged sword. But certainly an acknowledged strategy of Presidents from both parties has been to pick Justices who are young enough to reasonably be expected to spend many years on the Supreme Court — a "force multiplier" of a sort, each such pick still casting but one vote, yet casting votes for year upon year. And at 60, Ms. Miers is almost a decade older than the newly confirmed Chief Justice.
Initial criticisms from the right about Ms. Miers' age have almost disappeared, however, as her opponents have realized that it's a criticism that can only stick if one first accepts as a premise that Ms. Miers' votes over her likely career will be to one's liking. That is a premise they've spat back out. Indeed, Ms. Miers' age and actuarial likelihood of a shorter tenure undercuts their arguments across the board and, in particular, their arguments that Justices tend to drift to the left the longer they're on the bench and the farther removed they are from their "roots." It's likewise a bit unseemly for Ms. Miers' supporters to argue that, as a more mature nominee, she's unlikely to be as impressionable and subject to persuasion from the left as some younger potential nominees. (Unseemly — but valid.)
It's not directly on point, since it was from a contest involving two particular combatants — and Ms. Miers, to her misfortune, is compared against every other potential nominee whom her critics would rather have seen get the nod (including some who certainly would have been aggressively filibustered, and at least some of those probably successfully) — but I can't help recalling this wonderful bit from the second 1984 Presidential Debate:
MODERATOR: Mr. Trewhitt, your question to President Reagan?
REPORTER: Mr. President, I want to raise an issue that I think has been lurking out there for two or three weeks, and cast it specifically in national security terms. You already are the oldest President in history, and some of your staff say you were tired after your most recent encounter with Mr. Mondale. I recall, yes, that President Kennedy, who had to go for days on end with very little sleep during the Cuba missile crisis. Is there any doubt in your mind that you would be able to function in such circumstances?
REAGAN: Not at all, Mr. Trewhitt and I want you to know that also I will not make age an issue of this campaign. I am not going to exploit for political purposes my opponent's youth and inexperience. If I still have time, I might add, Mr. Trewhitt, I might add that it was Seneca or it was Cicero, I don't know which, that said if it was not for the elders correcting the mistakes of the young, there would be no state.
This was "vintage" Gipper, of course. But this quip essentially ended President Reagan's age as in issue in that election. And while the age of a potential nominee may indeed be relevant in selecting among many candidates, once that candidate has been nominated, then absent some unusual circumstance — "the nominee is on a respirator!" or "the nominee has just been diagnosed with a terminal disease!" — it ought to basically drop out of the confirmation discussion.
Sunday, October 09, 2005
Miers and board certification
In a recent comment, reader Lgl asked:
[W]ith all her experience, why isn't [Ms. Miers] board-certified in civil trial law? (for that matter, why isn't Beldar?)
That's a fair question — or actually, two fair questions — and they're questions that merit not just an answer in comments, but a post of their own.
In 1974, Texas was among the first states to adopt and begin the multi-year process of implementing a comprehensive system of "board certification" procedures in a variety of practice specialties. This system is analogous in many respects to the national board certifications available to physicians in various practice areas, and there have been some attempts to set up a similarly national system for lawyers, but no comprehensive national program that includes all of the major practice areas has yet caught on in a big way.
The State Bar of Texas and the Texas Supreme Court were, and remain, very appropriately involved in the Texas program. But the actual certification process is controlled by a distinct body, the Texas Board of Legal Specialization.
As with physicians and their national certification program, lawyers in Texas need not be board certified in order to practice as a general matter, nor in order to undertake any particular types of cases or matters. There are, however, some fairly general ethical provisions that caution lawyers not to undertake matters for which they're unqualified without taking reasonable steps to gain those qualifications. Doctors who are not certified may legally hold themselves out as specialists anyway, at least in most states. But there are very strict ethical regulations in Texas that restrict the ability of lawyers who are not certified to claim or imply that they are specialists; these have the force of law, and violating them can result in sanctions up to and including suspension or loss of license. Indeed, in something noticed by most Texans who are barraged by lawyer advertising, but that is unfortunately probably poorly understood by most consumers, Texas lawyers who aren't board certified — which continues to be the vast numerical majority of the practicing Texas bar — are required to include a disclaimer along the specific lines of "Not Certified by the Texas Board of Legal Specialization" in any advertising they may do, even if that advertising neither claims nor implies any specialized expertise.
I support the TBLS and the specialization program, not (as some lawyers do) out of a desire to avoid having to make the advertising disclaimers, but because I believe it's an appropriate and useful thing for the profession to do to promote professionalism and excellence within its ranks on a long-term basis. I don't think the program has been entirely successful in its attempts to educate and inform the public or to help them in finding and choosing among lawyers, but neither has it been entirely unsuccessful, either, and supporting the program continues to be an effort worth making for those reasons too.
I don't believe anyone was "grandfathered in" when the system was created. The expectation was that rather than effecting some instant transformation of the profession, it would instead take a matter of decades, not merely years, before the system reached "equilibrium" and become fully established and effective. In the three decades since, the system has made good progress toward that, although less than I'd like to have seen. Evolution of the system has not been perfect, especially as there have been some compromises to reflect some rivalries within the bar. The partially overlapping certifications for "civil trial law" and "personal injury trial law," for example, reflect early and perhaps lingering concerns of plaintiffs' personal injury practitioners that other courtroom lawyers, and in particular those who practice mostly on the defense side in personal injury cases, would somehow dominate to their disadvantage. Nevertheless, while still a work in progress, the Texas board certification program is a useful model that I wish more states would follow.
Speaking for myself: I applied for, took the tests for, and was awarded certifications in both civil trial law and personal injury trial law from the Texas Board of Legal Specialization in 1986 or 1987, as soon as I became eligible based on the then-existing years-in-practice requirements. (I already had the required number of first-chair trials, references and recommendations, continuing legal education hours, and so forth, and I met all the other prerequisites.) I maintained both certifications for several years. But during the late 1990s, at a time when I was in solo practice, I decided for a variety of personal rather than professional reasons not to continue paying the required annual fees, and I allowed both certifications to lapse. That was without question the most short-sighted professional decision I've ever made in my career, and one I've regretted continuously thereafter. After extended polite discussions with the Board, I've now resolved to seek recertification — probably only in civil trial law this time — and although preparation even for recertification is a multi-year process, my expectation is that I will file the application, again undergo the professional vetting, and ultimately re-take the certification test during the 2006 cycle. In the meantime, I do not make reference to my having once been "board certified" in any public list of qualifications and credentials because I believe it would be unethical to do so without simultaneously disclosing (as I have here) that I let the certifications lapse — and that gets me into long (and concededly embarrassing, because of my foolishness) explanations like this one.
According to the TBLS' online database, Ms. Miers isn't currently board certified in any specialty area. I can't speak for Ms. Miers, nor give any definite answer as to why she is not board certified, but I will make these general comments that might or might not explain her situation:
The certification process is (and should be) very arduous. The eligibility requirements, although varying according to specialty, are (and should be) quite stiff. Simply gathering the necessary historical factual data to complete the exhaustive application took me a couple of weeks of full-time effort before I first applied. (I'm reasonably confident, however, that Ms. Miers' experience would meet the eligibility requirements for civil trial law, the specialization that probably most closely corresponds to her practice.) The day-long examination is (and, again, should be) comparably difficult in some rough measure to the bar examination; I spent several more weeks preparing for it (or actually, "them," as there were separate tests for the two certifications I obtained). The continuing legal education requirements, both before applying and after being certified, are higher than the mandatory minimums for other Texas practitioners. And certified practitioners must pay non-trivial initial and continuing annual fees, through which the program is entirely funded.
A few lawyers actually prefer to be known as "generalists"; some offer that up as a reason for not seeking certification, although I personally don't much credit that reasoning. Still, many lawyers who strongly support the concept of board certification and the goals of the TBLS, and who also meet the eligibility requirements, have nevertheless decided, for whatever reasons, not to seek certification. Or perhaps it's more accurate to say they've never made the affirmative decision to seek, and undertaken the rigorous paths to obtain, board certification. For lawyers who do not advertise or plan to advertise — and especially for well-established lawyers who already have all the work that they personally can handle — the personal cost-benefit analysis is quite different than otherwise.
Any knowledgeable Texas practitioner will tell you, however, that there are a great many superb Texas lawyers in each of the fields for which specialization certifications are available who, for these or similar reasons, have never chosen to apply for board certification. I'm confident that Ms. Miers, like most Texas lawyers, would agree that board certification is a fine credential to have. But particularly given her other commitments on behalf of clients, profession, and public, and her age and the level of success of her career by the time the ball toward board certification really got rolling, I personally do not fault her for lacking this particular credential.
The relevance to her SCOTUS nomination of Miers' credentials as a large law firm's managing partner
In prior posts, and moreso in comments to them, I've touched on (and sometimes debated) the importance of Harriet Miers' experience as managing partner of Locke Purnell and then, post-merger, as co-managing partner of Locke Liddell & Sapp. This post collects my thinking on that into one place.
Being chosen as a large law firm's managing partner, and being successful in that role once chosen, reflects certain useful management skills, as the title implies. More specifically, running a law firm is a lot like herding cats. And not housecats, but lions — a "pride" of lions, I believe they call it. Hungry, dangerous, big cats with bigger egos and sharp claws and teeth, plus the ability, and the incentive when they perceive themselves slighted, to drag off into another part of the jungle their own recent kills along with their protegés and subordinates. Dealing with partner-level lawyers requires tact, creativity, flexibility, judgment, listening and communication skills, the learned or intuitive ability to broker compromises, and finally (but not least importantly) a backbone of steel and the ability to display and occasionally use one's own teeth and claws. The "people skills" expected of a managing partner, while perhaps particularly important for a Chief Justice in the context of the Supreme Court, are not unimportant for other Justices. The Chief Justice, simply put, has but one vote, and he is not always himself in the majority.
Beyond "people skills," though, having managed a large law firm vouchsafes that someone has the important perspectives and experiences that come from running a business. Being chosen by one's partners for this role reflects in part their judgment as to one's business acumen and common sense, independent from one's expertise as a legal scholar-practitioner. In many ways, running a large institutional law firm, with offices in several cities and a large nonlawyer support staff, can be like running a medium-sized business corporation. It's not General Electric, but neither is it a mom-and-pop drugstore. It takes people skills to split the pie among partners; but it takes business skills to ensure that there's a pie to split, and to grow and expand it. That Ms. Miers may bring to the Court the instincts and perspectives from "middle America" and from the world of commerce generally is, I think, a very encouraging thing.
But finally, and in my mind perhaps most significantly, there is indeed a strong positive correlation between being chosen as a managing partner and being professionally respected by one's partners, peers at the bar and bench, clients, and community. Someone suggested earlier in my comments that it's common for managing partners to be chosen based solely on their business ability. That's just nonsense. Business ability is useful, but large law firms can and do hire highly sophisticated, valued, and well-trained and -paid professional managers — accountants, marketers, recruiters, human resource specialists, information technologists and librarians, premises managers, etc. — who are nonlawyers. Yet large institutional law firms are uniformly run by their lawyers, and their lawyers almost inevitably pick someone to lead them who has substantial intellectual power and practice accomplishments along with the other essential talents.
That has been the case at every large law firm at which I've practiced. For example, Bill Harvin and Bill Barnett, the two successive managing partners during the years I was at Baker Botts, were among the most highly regarded adversary practice lawyers at that very fine firm; they were beloved, respected, and a little bit feared. The notion that Baker Botts' lawyers would choose to be led by a legal mediocrity, regardless of his or her business talents, would simply be too funny for words to anyone remotely familiar with that firm. Likewise, Weil Gotshal's managing partner when I was there, Ira Millstein, was a nationally famous business adviser, confidante of CEOs, and trouble-shooter to whom Fortune-100 companies' boards of directors turned when in trouble — a respected antitrust lawyer who also became respected for his legal and practical judgments on matters entirely unrelated to antitrust as well.
Managing partners, to be successful, become not only the chief executives responsible for making decisions within their law firms, but those firms' spokesmen to their clients, competitors, and communities. They are entrusted by their partners not just with protecting their firms' reputations, which may date back decades or even more than a century, but also with guiding their firms' futures. Anyone who thinks this is a trivial credential or accomplishment doesn't understand much about law, lawyers, and law firms.
Saturday, October 08, 2005
Most unlikely promise I've read on The Corner
JPod's title for this post: "A Final Word on Miers." Heck, it's only 10:35pm Eastern right now, I doubt it will be the final word tonight.
(Well, maybe JPod's final word tonight, if he's going to bed now. In which case I ask: Society guys like JPod go to bed in NYC at 10:35pm on a Saturday?!? Or maybe he's going "out." Yeah, that's the ticket.)
(But for the record, again, I don't endorse the Lindsey Graham "you oughta shut up" theory.)
My own biases and sources of passion on the Miers nomination
A pundit whose name you'd recognize, in a private email exchange, wrote to me that he thinks I'm very much personally invested in the Miers nomination. The truth of this statement became clear to me simultaneously with my startled realization about 4:00 p.m. this afternoon that the Texas-OU game had ended before I'd remembered it was being played. (Final score: 'Horns 45, Sooners 12 — Hook 'Em!)
It would be fair to say that the nomination and the controversy around it have driven me to distraction, sleeplessness, mania. I am indeed personally invested in it, and I ought to explain why, because you may conclude that it affects my credibility one way or another, and it certainly affects my objectivity despite my best efforts.
Among the things Ms. Miers and I have in common is that we've defended public companies accused of making inadequate disclosures. I claim that as a mitigating factor to explain why this post will run so long. But I'm a wordy cuss anyway.
I am reasonably certain that I've never actually met Harriet Miers. It's not unlikely that we've been in the same room together at some bar function or other, but I don't think we've ever spoken in person or even by telephone. I was aware of both the Locke Purnell firm and another fine Dallas firm that merged into it, Rain Harrell, while I was in law school; I quite possibly interviewed with one or both of them, and I'd certainly become better acquinted with them both by reputation when I was a summer clerk at one of their Dallas competitors, Thompson & Knight, in 1979. I likewise had been familiar for at least that long with Houston-based Liddell Sapp, the firm that merged with Locke Purnell under Harriet Miers' guidance much more recently to create Locke Liddell & Sapp.
During the first dozen years of my career when I was myself a big-firm lawyer, all of these firms were simultaneously comrades at the bar and competitors. My firms competed for the same clients and new-hire law students; our firms often represented codefendants and/or adversaries in lawsuits scattered throughout the state. Based on the size of these firms, there's no way I or anyone could know everyone on all of these firms' rosters, nor even everyone in the same practice area. But we all had mutual friends and acquaintances; and we knew of each others' rainmakers and general capabilities and reputations. Indeed, I was struck as I was reading through the published decisions from Ms. Miers' cases that I wrote about at such length yesterday just how many of them I recognized, recalled, and had had at least some remote connection to myself. I've had cases with or against, and in some cases worked at the same firms with, her opposing counsel in many of those cases. One of my professors was her opponent in one of those cases, and I was long ago the beneficiary of help from one of her law school professors.
In one of those opinions, I came across the name of a former Wall Street deal lawyer of considerable national prominence who'd later become an executive for, and as a result also been a witness for, Ms. Miers' client in that case. He was also the deal lawyer with whom I'd shared a common client, the General Electric Pension Trust, in the large lender liability case something over ten years ago that I described in another post this week. GEPT had been obliged to seek new counsel in that case when a potential conflict arose between it and two other institutional investors that I was also representing, and this same Wall Street lawyer had helped GEPT select Ms. Miers' firm, Locke Purnell, to take over its representation. One of Ms. Miers' partners there, a superb lawyer named John McElhaney, took over day to day responsibility for defending GEPT in the case, and it was John who I'd briefed for two or three days to get him up to speed, and then worked with as continuing counsel for these codefendants thereafter. Seeing the New York lawyer's name again, though, specifically in connection with Ms. Miers' case triggered a vague recollection that her name may have been listed along with John's on their firm's pleadings for GEPT, and if — as I'm now speculating, albeit on a very vague memory — Ms. Miers was the rainmaker who'd brought in the representation, it would not be atypical for her to mostly hand it off to a trusted senior partner to work up, with the representation being made to the client that she'd continue monitoring it and become more directly involved when and if the case got close to trial. So we may possibly have both technically been among counsel of record in that case. (Although it's not one I've seen her take any personal credit for in any published materials; and if she was involved at all, it would be just another among countless big cases that left only obscure footprints because her client's part of it settled pretrial.)
However, I'm pretty sure I never worked directly with Harriet Miers on that or any other specific case. I respect Locke Liddell, but certainly owe it no allegiance, and have no pending cases in which it is also involved at the moment. Nevertheless: I've known of Harriet Miers for many years, dating back to before her State Bar of Texas presidency. We almost certainly have dozens, perhaps hundreds, of common acquaintances. At one time we traveled in the same legal circles (although that's been much less true in the last dozen years or so, during which I've either practiced on my own or with small firms). I believe that I'd be appreciative of her career even had we practiced across the country from each other, instead of just across Texas. My comments and opinions about what an experienced courtroom lawyer and the managing partner of a large, successful law firm would bring to the Court would be the same regardless. But if she'd been from, say, Chicago or Phoenix or Seattle, I wouldn't be in a position of having so much personal knowledge of her specific career circumstances, and of course I'd sill still lack personal experience directly with her.
In other words, the same things that have put me into a position to comment knowledgeably and, I hope, credibly about her career may also may affect my objectivity. But they certainly explain much of the offense I've taken at criticisms of her that I thought were based on objectively false factual assertions (e.g., no law review experience) and what I also perceive to be many more some instances of unjustifiable opinions ('third-rate lawyer," "undistinguished firm," no big cases, etc.). For example, when I first read the nonsense that one of Rich Lowry's sources had fed him and that he innocently had republished — which then zipped from NRO's The Corner around the blogosphere in the first hours of the nomination, creating for many a first impression that's become very difficult to dispel — my jaw just hit the floor, and I'm sure I turned red in the face.
My reaction thus is in some ways similar to that which I had when another Texas lawyer with whom I was modestly acquainted, John O'Neill, suddenly hit the national spotlight last year. "Hey, I know him! I've cross-examined that guy!" was my first reaction. And then: "Hey! That's not fair, what they're saying about him. That's neither factually true nor even a rationally justifiable opinion!" And that led to my dozens and dozens of passionate posts — hopefully also with as much even-handedness as I could muster, but also subject to possible bias — about the SwiftVets. These were both people I knew to be good Texas lawyers getting a bad rap on a national stage. And I simply couldn't not speak out.
Furthermore, I'm also a long-time, undisguised fan of George W. Bush — one who's felt anything from mild to severe annoyance with him from time to time over issues big, small, and in between, but one who also on the whole still proudly supports him. I think he's gotten more things right, and especially more big things mostly right, than he's gotten wrong. I'm happy to disclose all that, and it's as important to consider in assessing my possible biases as it would be to consider biases from other conservatives or moderates who've become critical of the President pretty much across the board
You'd be entitled to conclude from all this: "Well, Beldar's unhinged."
I'll try not to take offense if you reach and express that conclusion. I'll forgive and honor almost any opinion contrary to my own, so long as you've gotten your underlying objective facts right.
And I once again remind myself — and those of you, my readers, who call yourselves conservatives — that we are not enemies, but friends; we must not become enemies; and we ought not blow the better angels of our natures out of the sky with 12-gauge shotgun blasts of overheated, hysterical, and scar-producing rhetoric.
The moving Miers goalposts; Bork, Barrabas, and elitism; and the soft, unconscious bigotry of limited imaginations
The title of this post is fair warning that this essay may tend to wander.
JPod promptly responded to my wee-small-hours post and my associated email to him about Harriet Miers' op-eds with his customary grace and wit — but in a way that nevertheless disappoints. Her op-eds read, he says, "like all 'Letters from the President' in all official publications — cheery and happy-talky and utterly inane."
Well, yeah. That's sorta because they were, indeed, "letters from the president" written for the bar journal. "They offer no reassurance that there is anything other than a perfectly functional but utterly ordinary intellect at work here." Well, yeah. But "perfectly functional intellect" is pretty much exactly what we want, and all anyone has any reason to expect, from a bar president writing in a bar journal; anyone's writing for United States Reports can reasonably be predicted to be different and more profound, just as the issues being written about are different and more profound. Can you point me to a state bar president in history who's used his "letters from the president" column to perform some stunning new synthesis of constitutional theory? You fault her for being appropriate exactly why?
What's very frustrating to me is how the goalposts keep moving on this nomination, and it's my own team that's doing it. (I say "my team," I actually mean "what I thought, apparently wrongly, was a team, and the one I've always thought I was on.")
First it's "She wasn't even on law review." Okay, so I explode that untruth, which took no more effort than to look in a standard legal directory (plus the preexisting knowledge, as a Texas lawyer, that the "Southwestern Law Journal" is in fact a law review even though it doesn't have the words "law review" in its name). Is the response, "Hmmm, well that's encouraging, we're sorry about jumping to that wrong conclusion, and you know, that's pretty encouraging, she was indeed a law review editor just like John Roberts"?
No, the response is "She was at a second-rate law school." I and others point out that it's a pretty good school, she was there because her family and financial situation tied her to Dallas, she was among the top of her class, and her professors still rave about her 35 years later. Again, is the response, "Hmmm, well, that's encouraging"?
No, the response is "Well, she's never handled any really big cases involving constitutional law." I point to three published opinions from appeals on constitutional law matters — one of them a question of constitutional first impression when she was opposed by one of the nation's most respected constitutional law professors with the outcome of a presidential election on the line, and she just beat him like a drum in the trial court, the Fifth Circuit, and the Supreme Court. Here you go, guys, volume and page numbers. Is the response, "Man, we've been really wrong about our facts now more times than we've been right, maybe we're being grossly and rabidly unfair?
No, the response is "Well, anybody could have won that case. And besides, she's never written any op-eds."
It would be useful, and productive of further reasoned debate, if some of the people who've been proven wrong about some of these facts would squarely admit that, take responsibility for it, and confess that their proven factual unreliability in the past ought caution them to go slow in the future in making sweeping pronouncements. But not many critics of Harriet Miers have been slow in making sweeping pronouncements. Basically the only limit has been whether the critics have broadband internet access or are still on dial-up.
But no one's being elitist! Oh, no, there's no hidden elitism here! Absolutely nobody opposing this nomination is doing it because of elitism, and how dare you question their patriotism?
So who's the newest critic who insists that this nomination is "a disaster on every level"; that "It's a little late to develop a constitutional philosophy or begin to work it out when you're on the court already"; and that "It's kind of a slap in the face to the conservatives who've been building up a conservative legal movement for the last 20 years"?
Robert Bork. The acid-tongued, short-fused, fire-breathing, contempt-dripping law professor-turned-judge who famously scolded senators on the floor of their own chamber for being so stupid and who generally freaked out the American public. A genuinely brilliant conservative, whose lifetime personal contributions to the precedent of the Supreme Court turned out to be zero. Well, he is indeed qualified to speak of disastrous nominations and botched confirmation processes, being as he is the all-time quintessential example of same in the history of the Republic.
But he's not being elitist in blaming a practicing lawyer for not publishing constitutional law treatises on a regular basis, no sir. And we'd keep moving these goalposts for any nominee, not just one who's coming from amongst practicing lawyers instead of the professoriat.
Robert Bork is an elitist. Period. He's not the only one, either. And confronted with that accusation, he might very well twirl to face his accusers, agree, and mount an impassioned defense for elitism that would, in the end, not be an endorsement of excellence but an assertion that only law professor-types are excellent enough to be on the Supreme Court. No one will ever convince him otherwise, his mind is closed.
But I am not, repeat not, accusing every other opponent of this nomination, nor every skeptic about this nomination, of identical elitism! To the contrary, many of the people squawking now are, in other contexts, quite meritocratic, and quite skeptical of the cultlike worship of academics. Some of them are in or of legal academia themselves, and yet ordinarily are wonderfully skeptical of it! That's precisely why they're so offended at the suggestion that elitism is involved. I freely stipulate — nay, I earnestly join them in proclaiming! hear ye, hear ye! — that their skepticism or opposition is not the result of culpable, conscious bigotry and snobbishness.
But that doesn't mean it's altogether fair, or altogether rational, either.
Look, folks, Dubya didn't pick who you all clamored for him to pick. That's not because Dubya hates you; he wasn't flipping you off. And he absolutely, positively knows how important this stuff is; it was no accident, nor insincere, when he talked about judges in almost every campaign speech in 2004. But he recognizes that the duty of making this pick is ultimately his. And he sincerely believes that he, personally, has a more solid basis for making an informed prediction about what kind of Justice this woman will become than he, personally, has for making predictions about anyone else, including any of the ones y'all were clamoring for — some of whom he might return to next time, if there is a next time, but none of whom he knows now like he does Harriet Miers.
"She's not who anyone else would pick as the 'best candidate' even among practicing lawyers," you insist. And you're right, if you exclude from "anyone else" not only Dubya but her other clients and colleagues. There are in fact a great many practicing lawyers with comparable qualifications (although I dispute that there are many with hugely better ones). But they all are strangers to our President, like Harriet Miers is a stranger to you. So why should he trust them?
And why should you trust him? Well you don't have to. But he is the President. Implicit in the fact that the Constitution gives him the pick is the likelihood that he'll pick someone who's qualified from among the people he actually knows a lot about; and that ain't cronyism if they are indeed qualified.
A sympathetic commenter of mine wrote the other day, "This is like the crowds shouting for Barabbas," which made me laugh really hard. That's too harsh.
But an unfortunate confluence of thoughts and emotions — almost viral, certainly self-sustaining, an ugly feedback loop — has swept through many folks on the Right, including most of the punditry (save, as JPod points out, myself, Hugh Hewitt, and there actually are a few others, albeit less windy ones). Some part of it's disappointment and resentment. Some part of it is insecurity. That is, some folks harbor fears — and some folks, more than just doubting him, boldly join the Left in asserting — that Dubya really is a stupid chimp, an idiotic cowboy, a corrupt cronyist, a secret traitor to the cause. (The Left's version replaces the last element with "puppet of Rove and evil Halliburton.") If you're pounding the table as you read that and you're saying "Damn right he is!" then you're beyond my or anyone else's power to persuade; no one will be able to cure your insecurity, and nothing would reassure you short of the President ceding to you, personally, the right to make these nominations.
Yet, still, I think that disappointment and insecurity are ultimately the lesser part of the confluence. And that's why I still have hope for this nomination. The greatest part of the confluence of negative thoughts and emotions about this nomination comes, I firmly believe, from a failure of imagination. And that is something that's curable.
In some cases, it's actual ignorance about this particular nominee and about her career path. People didn't know (and wouldn't wait to find out about) her academic record, or the quality of her law firm and its practice and its clientele, or her service to the profession through her bar work, or the incredible responsibility she's held and discharged competently thus far in the Administration. Harriet Miers is the very model of the work-horse, not the show-horse, and unless you happen to be, say, another lawyer who handles complicated litigation in Texas — me — you're understandably likely to have been uninformed about most of those facts.
And in other cases, the problem is that many folks just have never spent any serious amount of time considering any sort of potential nominees who are off the beaten track. It's terribly clichéd to say, but you're failing to think outside the box.
When presented with a nominee whose main credentials are (a) a successful career in private practice as a courtroom lawyer, (b) business leadership within her firm, (c) professional leadership within her profession, and (d) competent performance of important but entirely behind-the-scenes work for the Administration, your reaction has been: "But she's not a judge! She's not a professor!" And you're just stuck in that rut. You're so deep into it that you can't even tell it's a rut.
Instead of asking yourselves, with an open mind, "What gaps in the present Court might a person with Harriet Miers' background fill?" you're just saying over and over, "But she hasn't written any articles about constitutional theory!" You've blinded yourself to the fact that historically, not many of our Justices had done that before taking the bench either; historically, many of our Justices have come from backgrounds quite similar to Harriet Miers' and absolutely no more distinguished than hers.
You've gotten into your heads this rigid, narrow conception of what the next Justice will be doing: "Why, the next Justice is going to be spending her full time articulating and persuading her brethren with subtle, difficult critiques of legal positivism versus legal realism, or textualism versus originalism," or something ... mystical. Oh, poppycock. I hope the next Justice will be doing less of that — the Honorable Anthony "Sweet Mysteries of Life" Kennedy does enough of it for the entire Court.
God save us from brilliant, eloquent, articulate Justices, steeped in intellectualism and rigorous analysis of life and law, who continue to screw things up on a near daily basis. Save us from deep thinkers who are too distracted to keep themselves from stepping in the dog poo and then tracking it all over the house. God grant us some smart but practical Justices — "modest" Justices, in Chief Justice Roberts' terminology. Justices who solve the problems that are brought to them in their limited roles as judges, rather than creating them. Justices who don't think it's their duty or their right to go looking for other perceived problems outside the proper limited scope of their role, or think it's their duty or right to solve everything everywhere.
And God save us from the failure of imagination that would prevent us from perceiving that some such smart, modest, proper-problem-solving Justices may come from — and indeed, are especially likely to come from — backgrounds like Harriet Miers'.
Beldar on Hewitt Friday
Another transcript of me fumbling around over a long-distance telephone link, again courtesy of the indispensable Radio Blogger (Generalissimo Duane). As always, re-reading such things makes me cringe. I misspoke, for instance, in saying John Roberts didn't have the "law review experience" that others are insisting upon for SCOTUS candidates; I meant to say "post-graduate experience of publishing in law reviews," because of course Chief Justice Roberts was a student author and editor at his law school's most prestigious law journal. Then I repeated that blunder with respect to Ms. Miers, who likewise was a student law review author and editor, but has not spent her post-graduate career writing for publication in law journals in the way that law profs seeking tenure typically do.
JPod: If Miers had only penned some op-eds!
From the transcript of Hugh Hewitt's interview today on his radio show with the talented and always-interesting "JPod" — multi-media columnist, talking head, and blogger John Podhoretz:
HH: What would prove to you that [Harriet Miers] had the intellectual ability, because I think it's quite obvious that she does.
JP: I would like it if she had written one op-ed in her entire life, on any subject, of any remote interest, it might suggest that she was engaged with these matters.
In fact, as presidents of both the State Bar of Texas and the Dallas Bar Association, Ms. Miers regularly wrote op-eds — quite a few of them. She was writing primarily for an audience of fellow lawyers, however, rather than for the general public. Now, I don't know if JPod will accept an opinion editorial not published in a newspaper as an "op-ed," nor whether he finds, just to pick one example, the need to protect the public from unethical lawyers to be a subject of "remote interest." But I suspect that he might reply by saying that he really meant to say: "An op-ed on important matters of constitutional interpretation and philosophy" or some such thing.
I'll grant that this is a reasonable requirement — if you believe the Court should be limited to professional academics and philosopher-kings, and if you're willing to exclude the overwhelming majority of all practicing lawyers from consideration for the Supreme Court. I'll grant that one could take these positions without necessarily being "elitist" in the sense of being a credentials bigot. I'll even grant you that today's Court is composed essentially as if those were in fact the relevant criteria, even though historically they have not been until very recent times.
But I respectfully submit that if you do adhere to those as your criteria, you'll forever after have a Court as dysfunctional as today's is. There: another op-ed from Beldar!
Friday, October 07, 2005
A Westlaw romp through Harriet Miers' record
Critics of SCOTUS nominee Harriet Miers make much of the fact that she hasn't argued a case in the United States Supreme Court. And in fact, they've been pretty harsh, some of them, in characterizing her record as a practicing lawyer.
What's up with that? Anything to it? Well, heck, let's find out — shall we? Ever since Al Gore invented the internet, we've been living in the Information Age, so let's get some information!
A search on Ms. Miers' name, run in a Westlaw database containing both state and federal court reported decisions from Texas, pulls up 19 separate cases dating back to 1974 in which she's appeared among counsel of record.
Eight of those represent not appeals, but published opinions written by federal district judges. But such opinions are generally only published when the authoring judge recognizes that his ruling constitutes an important or new precedent, and they usually reflect a level of briefing by the litigants and writing by the judge that's essentially indistinguishable from an appellate proceeding. Another four are decisions from various of the intermediate-level appellate courts in Texas. The remaining seven are published opinions from decisions in the United States Court of Appeals for the Fifth Circuit.
Now, the way these things work, this database won't show any of the state-court cases that Ms. Miers has handled, even if they were tried to a verdict, unless one side or the other took an appeal. (Texas state-court trial judges don't publish written opinions, and don't very often write them at all.) And this database almost certainly won't show but a tiny fraction of the cases she worked on that settled before trial, which is what happens to 95+ percent of all cases everywhere. So there are are definite limits to what we ought to expect from this romp. At best, it's going to give us her appellate cases, plus a tiny snapshot of a few trial court matters. She's mostly been a trial-court lawyer, not an appellate specialist like John Roberts, so this search is going to leave out anywhere from, I'd guess, at least 50 maybe up to 90 percent of her actual career experiences.
Still, it ought to be interesting to look at these cases. Just for grins.
Since so many of Ms. Miers' critics are painting these really broad caricatures of her anyway, let's start with her work for The Mouse. In Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25 (Tex. App.—San Antonio 1998, pet. dism'd w.o.j.), the key issue was whether a wholly owned Disney subsidiary incorporated in Delaware could be subjected to the personal jurisdiction of the Texas courts. That in turn took the case into a thicket of both constitutional and nonconstitutional issues — including an analysis of whether there were sufficient "minimum contacts" between the subsidiary and Texas so that the Due Process Clause of the Fourteenth Amendment would not be violated by forcing that subsidiary to respond to a lawsuit in the Texas courts. And that in turn depended on a complicated mix of factual and legal issues involving both agency and contract law. Ms. Miers lost on the personal jurisdiction issue at the trial court level, but then took an extraordinary interlocutory appeal, and won in the San Antonio Court of Appeals. Although her opponents tried to persuade the Texas Supreme Court to hear the case, Ms. Miers apparently persuaded that court to decline to hear it on jurisdictional grounds — meaning, in all probability, that she filed a persuasive brief in the Texas Supreme Court, and then did not have to appear for oral arguments on the merits (and risk losing) precisely because her brief was so persuasive.
(Now how stupid was that, writing such a good brief? Sheesh. If she'd just blown it, and as a result the Texas Supreme Court had taken the case, then she could tell all her critics now that she'd at least argued a case in the Texas Supreme Court. No foresight, this Miers woman. Altogether too focused on what her clients' needs are. How's she ever going to get ahead in the grand game of Beltway Lawyer-Snark if she acts like that?)
Well, anyway: How big a challenge was this case, then? What does it say about Harriet Miers and her intellect and her skills? Some may say that this was "meat and potatoes" stuff, even on the constitutional issues, and it's not the sort of case that was likely to make it all the way to the U.S. Supreme Court. But nevertheless, it obviously was complicated enough to perplex the trial judge, who (according to the appellate court) got it wrong. It was a close enough case that Ms. Miers' opponents thought they had a shot at getting the Texas Supreme Court to hear it, even after losing at the court of appeals level. The facts and law were complicated enough that this case would have made a reasonably good law school exam question. And I'm reasonably sure that to Ms. Miers' corporate client, getting this six- or maybe seven-figure fraud case thrown out of what it would have regarded as a hostile, pro-plaintiff venue — the famously dusty streets of Laredo in Webb County, Texas — was a pretty significant victory.
But what do they know? They're just cartoons and stuff.
From the Mouse on to Bill Gates: Another recent case on the list is Microsoft Corp. v. Manning, 914 S.W.2d 602 (Tex. App.—Texarkana 1995, pet. dism'd), which was an appeal from a state-court ruling that had granted the plaintiffs' motion for class certification, again in a rural Texas county that I'm sure Microsoft was very wary of being sued in. This case turned on cutting-edge issues, including the interplay between state and federal class action laws, that are currently the subject of heated tort reform debate at both the state and national level. And while much of the law was strictly procedural, some of it also got into federal constitutional issues involving the Due Process Clause and the Full Faith and Credit Clause. The plaintiffs' counsel in this case (some very sharp lawyers with whom I'm acquainted) were extremely formidable, and although I don't know what ultimately happened after this appellate opinion against Microsoft was issued, my guess is that the case settled pending further appeals.
"Okay, Beldar," you say, "But what was the case about?"
Well, the case was fiendishly complex both factually and legally, as it involved alleged violations of a host of confusing, potentially competing state and federal consumer laws in connection with Microsoft's upgrade from MS DOS 6.0 to MS DOS 6.2. Now, the geeks among my readers will, as I did, immediately say "Ooooh! Wow!" — but for the benefit of the rest of you, let me point out that as of the early 1990s, anything involving Microsoft's MS DOS operating systems would have been extremely important to that company, touching on the core business on which that company was built. So, friends and neighbors, this was serious, complicated, challenging commercial litigation that many firms would never dare undertake, for a client even fewer firms could ever hope to land. And it was the kind of case that might eventually have beaten the odds and made it up to the U.S. Supreme Court, depending on how things broke. Neither John Roberts nor any lawyer I know, including lawyers in DC or NYC, would have turned up his nose at this case.
But it's no big deal, probably. I mean, look at the client's name. "Micro." Like little, tiny. And "soft." So it couldn't really have been a big, hard case, could it?
On with our tromp through the cases, but let's try to pick up speed. Here's another intermediate Texas appellate court decision, this one involving a commercial dispute over a foreclosure on a deed of trust note. It's the kind of fight that quickly makes most folks' eyes glaze over — unless it was your $2,235,077 bid that was involved, maybe. Ms. Miers won this one.
Another involves the priority of various state lien laws, with a mid-six-figure judgment at stake. Another win for Ms. Miers, ho-hum. This is getting really too predictable.
Then there's a federal case, a Fifth Circuit appeal involving allegations of real estate fraud in a $165 million condo tower deal. No constitutional issues involved, so I guess handling this case counts for less than nothing to Ms. Miers' critics.
And so it goes. As I'm skimming through these cases, I always look to see who Ms. Miers' opposing counsel were. They're mostly names that are familiar to me, which isn't a surprise, since they're also among some of the best lawyers and law firms in Texas. And some of these cases do look as dull and dry as desert sand, except there are always big bucks involved, and often some wicked-complicated legal stuff.
But some of them look pretty exotic. Here's one involving a fight over whether the State of Texas could obtain copies of investigation materials from an ongoing federal criminal grand jury's probe of possible antitrust violations in the prestressed concrete industry. There were probably only a few dozen careers on the line over that, maybe a few tens or hundreds of millions of dollars, with of course the Texas Attorney General and the U.S. DoJ involved, and it looks like a parallel case was going on in Illinois that did in fact make it to the Supreme Court while this one was still kicking around the Fifth Circuit. Looks like Ms. Mires just missed a shot at a Supreme Court appearance there by the skin of her teeth. She won again, though. Bor-ing.
Oh, wait. Here's one that doesn't seem to fit with the rest. A Fifth Circuit appeal — Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981), cert. denied, 455 U.S. 912 (1982) — involving a denial of Social Security benefits to an indigent and ill single mother. No big bucks there, how the heck did Harriet Miers get into this case, fighting the Department of Health and Human Services on behalf of some nobody?
Ah, well, here's a clue. The very first words of the opinion read: "Now ably represented by volunteer private counsel, obtained through a community legal aid service ...." This was a pro bono case then.
So Harriet musta been hangin' out down at the legal aid clinic, just like Meadow does on The Sopranos. That's kinda cool. But to no ultimate avail, it seems: "Like many who appeal negative Social Security decisions, Mrs. Ware is now undeniably ill and may indeed be unable to work, but, fettered by the bonds that the Act places on judicial review, we conclude that the district court properly denied her relief and we affirm the judgment." Touched their hearts and drew their admiration, Harriet Miers clearly did, but she couldn't get this panel — comprising in my opinion three of the finest judges ever to sit on the Fifth Circuit, the judge for whom I clerked, now-Chief Judge Carolyn King, plus Tom Gee and Alvin Rubin, tough graders all — to bend a harsh administrative law out of shape. Funny, that, how Judge Rubin still went out of his way to compliment Ms. Miers. Because, like, she was just a loser, you practically could see the thumb and forefinger-L on her forehead, couldn't you? Don't you think the judges shoulda seen that?
One little bit more about this case: If you aren't up on your citation form, here's what that "cert. denied" notation means: After losing in the Fifth Circuit, Harriet Miers apparently petitioned the United States Supreme Court to hear the case. But the Supreme Court wouldn't hear it; the odds of it actually taking a Social Security benefits denial case were, oh, about 603,209,214-to-1. Oh, well, trash this case then — it just doesn't count, 'cause Harriet Miers has never actually argued in the Supreme Court, y'know, and this couldn't possibly have anything to do with her qualifications as a Justice. What kind of law nerd would try to take some sick mommy's case all the way to the Supreme Court? Like Nina Totenburg woulda bothered to talk to her anyway if they'd taken the case, huh? Waste of time, waste of time.
Now here's another pro bono court-appointed appeal in a Fifth Circuit criminal case, Popeko v. United States, 513 F.2d 771 (5th Cir. 1975). Interesting how these federal judges seem to be turning to her when they have an unusual or exceptional case that needs really creative lawyering, even if it's not going to produce a fee. Case like that probably means lost fee revenues for her firm in the five or even six figure range (time spent that otherwise might have been billed to Disney or Microsoft, doncha know). But she takes 'em anyway. Guess that shows she's not very sharp, just giving away her work for free.
And last, there's Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex), aff'd mem., 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001). It appears that Harriet Miers, on behalf of candidate and President-Elect George W. Bush, became one of the country's exceedingly few lawyers ever to handle a case involving the Twelfth Amendment. (How many Twelfth Amendment cases have John Roberts, Larry Tribe, and David Boies collectively handled? Why, I believe that number would be ... zero!)
Twelfth Amendment to what, you ask? It definitely looks like they're talking about the U.S. Constitution.
You remember that one, doncha? "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves[.]" Gosh, that might have been embarrassing! Win in the Supreme Court in Bush v. Gore, then have another federal court rule it was all for naught if both Bush and Cheney were held to be inhabitants of Texas? Ouch.
I wonder: Who was on the other side of Ms. Miers in that case? Who was trying to undo the 2000 election with this Twelfth Amendment argument? Hmmm — hey, I recognize this guy too: Sandy Levinson. He's only the "W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law" at the University of Texas School of Law. (Translation: heap big professor-guy.) "[A]uthor of over 200 articles in professional and more popular journals." Been a visiting prof at some other pretty good law schools: Harvard, Yale, New York University, and Boston University law schools. Co-author of a leading constitutional law casebook. I actually sorta know Prof. Levinson. Had him for a class, and I edited a book review he wrote for the Texas Law Review; I liked him a lot, and he's definitely one of the national stars on the UT-Law faculty. (I think he blogs some too!)
I suppose that would also make him one of those grand constitutional scholars who spends pretty much all of his time thinking about questions of great pith and moment. You know, the kind of superior, intellectually powerful, big-leagues lawyer that Harriet Miers ... obviously just isn't.
"So tell us, Beldar," you plead, "How'd that case turn out? Did Prof. Levinson save the day for either Al Gore or Joe Lieberman by keeping the Texas electors from voting for both Bush and Cheney?"
Well, the short answer, friends and neighbors, is that Harriet Miers just flat out kicked the distinguished Prof. Levinson's butt in court. On just about every issue, too. And she did it not once, not twice, but three times: federal district court, then again on appeal in the Fifth Circuit, and then again in the U.S. Supreme Court — another one of those "cert. denied" notations.
You ask breathlessly: "But is that 'cert. denied' really a win?" Why yes, friends, it surely is. Because, you see, when you've won in the lower courts, then your job as a lawyer is to persuade the Supreme Court not to take the case. Which is exactly what Harriet Miers did here — after first winning so convincingly in the federal district court that the Fifth Circuit, on the way up, didn't even bother to write an opinion of its own.
Of course, if she'd failed in that effort, and the Supreme Court had granted certiorari, then she'd have probably gotten to do an oral argument in the Supreme Court. Hey, I guess then her detractors couldn't have made that particular argument for why she's so unqualified for the Supreme Court bench, huh? "She's never argued in the Supreme Court, she's such a light-weight, nyah-nyah!" Well, no, she was so good in this case that she didn't have to. But I don't suppose her detractors are going to choke on that bit of irony, are they? Because this was actually just another missed opportunity for Ms. Miers; I think we've pretty well established now that she's never going to cut it as a Beltway Lawyer-Snark Player.
After all, Harriet Miers is just a "third-rate lawyer" from "an undistinguished law firm" who's never handled any big cases, hasn't got any appellate experience to speak of, and has never, ever done anything involving really hard or important stuff like constitutional law. She's just an unqualified crony. Fetches Dubya's coffee. There's just nothing in her record, no meaningful achievements, to distinguish her from a million other lawyers in the country.
Everyone says so. I read it today in the Washington Post! So it must be true, huh?
Is Miers one in a million? A reply to Charles Krauthammer
WaPo columnist Charles Krauthammer, normally remarkably thoughtful and open-minded but always eloquent, disappoints me in his column today on the Miers nomination by asking this very good question without bothering to pause to consider its answer:
There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president?
Well, sir, I have your answer right here, 'cause not a single other one of those 1,084,504 lawyers can say they've been —
counsel to the President and to the governor of one of the most populous states, along with having competently executed several other high-level White House staff positions;
president of both the state bar association in the Nation's second largest state and of one of its most respected and active local bar associations, as well as having led valiant efforts to return a dysfunctional American Bar Association back to its roots of apolitical service to the profession and public;
long-time managing partner of an extremely well regarded large Dallas-based law firm, which then became a successful 400+ lawyer statewide powerhouse after she oversaw a successful cross-state merger with a Houston-based firm of comparable size and reputation;
an accomplished courtroom lawyer, praised with words like "very good, cool, deliberate, poised, effective" by the judges before whom she's appeared, with experience at both the trial and appellate level in both state and federal courts, capable of personally attracting repeat engagements from sophisticated clients like Microsoft and Disney, and regularly listed among the top 50 or 100 American lawyers in listings complied by national legal periodicals;
a law clerk for two years for a respected federal district judge, providing further insights into federal trial practice of a sort that no current member of the Court can claim;
a published member of, and then an articles editor for, the top law journal at her law school, noted for its comprehensive coverage of Texas law; and
a "very thoughtful, very good student" who made "top marks" and could be counted on to give "solid, intelligent answer[s]" to "critical question[s]," according to a professor of hers, nationally recognized as an expert in business law, who 35 years after teaching her pronounced himself filled with "great satisfaction" to see her nominated to the Court.
Dr. Krauthammer's question also seems to assume that "her connection with the president" is a negative factor. Instead, it reflects the fact that based on years of close dealings with her, the President says he's more sure, based on personal knowledge of her, that she won't turn into "another Souter" than he could be with respect to anyone else he might have nominated — thus allowing him to keep his campaign promises about judicial nominees. He made those as his personal promises to the voters; why, now, is he being faulted and accused of "cronyism" for trying to fulfill those promises on the basis of his personal knowledge of and confidence in this nominee?
Dr. Krauthammer's column engages in the revised version of the "we're not being elitist, but ..." argument that has begun circulating lately. And to be clear, I'm not suggesting that he ever sniffed at Ms. Miers' SMU law degree or Texas legal practice; but others certainly have, and many false impressions still linger. Nevertheless, the revised version of that argument, if not as obviously elitist, still shows either (a) a lack of imagination or (b) a lack of appreciation of what judges and lawyers actually do, or (c) both.
Dr. Krauthammer insists, for example, that "constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship." And then he simply presumes — conclusively and irrebutably, it would seem — that Ms. Miers has no more capacity for "intellect steeped in scholarship" than any of the other 1,084,503 lawyers in the United States.
That's rather at odds with her actual record, which reflects considerable intellectual tools. But it's also far too narrow a focus, in several respects. In the first place, only a portion of the Court's work is, strictly speaking, "constitutional jurisprudence." The Court also deals with many other types of issues — indeed, a whole panoply of issues as diverse as, well, the kinds of cases that a top-flight courtroom lawyer at a first-class law firm has dealt with. There's a reason, Dr. Krauthammer, that most lawyers only take one, or at most two or three, courses in constitutional law: there's a lot more law out there, and it's important to the Nation too.
Dr. Krauthammer and similar critics of the Miers nomination also seem to believe — I can't imagine why, because it's counter-factual and counter-intuitive — that you have to keep writing law review articles month after month and year after year in order to have a powerful intellect. They seem to think that unless you do that, or you have the very, very rare sort of private practice that John Roberts had, doing nothing but appellate litigation in what's functionally indistinguishable from a never-ending law school moot court, you're simply incapable of grasping constitutional law as well as, umm, Charles Krauthammer can, I guess, as a physician-turned-pundit. Dr. K, it's unlike you to impute a negative stereotype to such a huge class of people: being a practicing lawyer doesn't mean one's retarded, and in fact there's a positive correlation between intellect and success as a practicing lawyer.
Moreover, while constitutional law is certainly important and raw intellectual ability is important as well, there has been no shortage of very smart constitutional scholars on the Court. Indeed, that's exactly how — and why — nine of them have been able to produce ten different opinions on a single day to try to explain why displaying the Ten Commandments is constitutional in Texas but unconstitutional in Kentucky.
A reasonable observer — a reasonable President, and reasonable senators — might conclude that some important sorts of diversity other than race, sex, and religion might be missing from the Court. Someone who hasn't clerked on the Supreme Court, but instead down in the trenches in a federal district court, and then practiced law there for many more years, might be useful among the Justices. Someone like that might have figured out and persuaded her colleagues on the Court, for instance, that it was a poor idea to turn state and federal sentencing procedures entirely topsy-turvy all at once and without warning, and then to shrug and say, "Oh well, we'll see about cleaning up our mess next Term."
Yes, I am hesitant to repeat an argument that Harry Reid has made publicly. But even a stopped clock is right twice a day, and Sen. Reid is correct in observing that the Court badly needs someone with the perspective of a practicing lawyer with trial-court experience.
This is not an argument in favor of mediocrity. This is an argument in favor of adding some different kinds of smarts to the Court. Until fairly recently, it was the rule rather than the exception to draw some new Justices from the ranks of practicing lawyers who've been successful and who've demonstrated character, devotion to profession and community, and sound judgment as measured in a wide variety of contexts. I respectfully submit that if you think your menu has only three choices — circuit judges in column A, law professors in column B, and law professors turned circuit judges in column C — then you are indeed being either elitist, unimaginative, or both.
In Dr. Krauthammer's case, I'm relatively sure the problem is simply a failure of imagination. And I'm hoping that he and quite a few others who are prejudging Harriet Miers' nomination will try to open their minds to the benefits that Dubya already perceives from it. In fact, there are quite a few more than "one in a million lawyers" who would constitute wise choices to fill Justice O'Connor's slot on the Court. But blinding oneself to this one in a million's particular set of credentials, or arbitrarily excluding her from consideration because she's neither a circuit judge nor a law professor, is both unwise and unfair.
Thursday, October 06, 2005
Home-town law school consequences
From a revealing article in today's Dallas Morning News:
Ms. Miers lived with her mother, Sally, and younger brother Jeb during her SMU undergraduate and law school years. Her father, Morris Miers, suffered a stroke during her freshman year, leaving the family in financial straits.
Concerned that she couldn't afford to keep her daughter in school, Ms. Miers' mother telephoned SMU President Willis M. Tate, seeking help, said the nominee's brother, Robert Miers. The president arranged a scholarship and job for the student at the university's campus computer center, Mr. Miers said. "Harriet and the family are grateful to this day."
Hypothetically, if your daddy has a stroke when you're a freshman in college, and you stay close to home so you can work a scholarship job while you're going to the best college and then the best law school in town, and then you clerk for a local federal district judge, and you go to work for one of the best firms in town (but that town isn't Washington or New York), and you go on to rack up a string of exceptional professional successes — does that nevertheless mean you're forever after a "third-rate" lawyer, forever after unworthy to be considered qualified for the Supreme Court, because you didn't go off to some Ivy League school?
Miers and the Erxleben litigation
I'm reprinting here a long and probably too-passionate comment that I just left in response to a post over at Confirm Them that republishes some absolutely trashy innuendo to the effect that Harriet Miers was "at the center" of a major "investment fraud." I'd seen a short reference to the underlying lawsuit involving Ms. Miers' firm on Prof. Bainbridge's blog on Monday, and left a similar comment there, but didn't post about it here or make a big deal of it because Prof. Bainbridge had been careful and quite proper to note in his post that "there is no allegation she took part in the fraud." I'm startled to note that the article linked over at Confirm Them was written for WorldNetDaily by none other than Jerome Corsi, the co-author with Houston lawyer John O'Neill of Unfit for Command last year. I very much wish that Dr. Corsi had gotten some insights from someone like Mr. O'Neill before publishing this stuff, because it's an outrageous smear — one that I hate to see even make the rounds, and that I'm embarrassed to have to link to here because it leaves me feeling soiled. Confirm Them writes of this, "it should give us all pause." Yes, precisely — pause to see whether you've been fair, or whether you're perpetuating and propagating an unjustifiable smear.
Herewith the reprint of my comments (slightly edited and expanded; emphasis in original):
This, frankly, is an outrageous smear. And this website ought to be ashamed to be spreading it.
Strong words, I know, and not the sort of condemnation I usually level against conservative bloggers I genuinely respect. But the suggestion that some sort of fraud is imputable to Harriet Miers over this is — well, it’s more outrageous than I can adequately express without slipping into profanity.
Every major law firm in the country has been sued on grounds like these at some time or another. If you have a contrary impression, you’re full of crap.
Why do law firms get sued in cases like these? For the same reason that banks, investment bankers, and insurance companies often do: Because they’re the deepest pockets left standing after a bad deal goes south.
Which firms pay out the biggest settlements? The very best ones. Why? Because they’ve been the lawyers involved in the biggest deals.
I am here to tell you, from my first-hand experience as a practicing lawyer from Texas, that during the hard times in the oil patch in the early 1980s, and during the S&L collapse around that same time, every major firm in Texas was sued repeatedly. Every one, without exception. Only a tiny, tiny percentage of those claims ever resulted in any proof of misconduct or impropriety. But they sure made life difficult for us. I still get a W-2 and a check for about $40 every year from a Dallas-based firm in which I was a partner in the early 1990s, as part of a refund over time out of some reserves set-aside that had been set up as part of some settlement. I have absolutely no clue what the underlying lawsuit was about, but whatever it was, I’m sure you could make charges against me with exactly the same credibility as the charges you’re peddling against Ms. Miers’ here — that is to say, with ZERO credibility.
I know some of the lawyers who were on the plaintiffs' side in this particular lawsuit, and they’re formidable. I’m sure that added a lot to the settlement value of the case — i.e., what they could basically extort from the law firm. But look at the facts, folks:
No fraud or other misconduct on the part of the law firm was ever proved. That remained an unproved allegation, an accusation never tested by any judge or jury. The firm denied that it had committed misconduct; the settlement, as is universal in such matters, repeated that denial and made very clear that no admission ought to be implied from it. And in fact, the key legal issue whose uncertainty also added to the settlement value of the case was whether law firms may be held liable for their non-negligent failure to catch and disclose a client's fraud. The plaintiffs were trying to recover, in other words, based on a theory under which they not only didn't have to show that the lawyers in Ms. Miers' firm participated in, or even knew about, the fraud, but instead had used the care that lawyers are ordinarily supposed to use and still got tricked by their client anyway!
The specific lawyers involved were apparently in a branch office of Ms. Miers' firm, not in either of the firm’s two main hubs (Dallas and Houston), and it appears that by the time of the settlement, they’d left the firm. Now, there’s always an argument to be made that the captain of any ship is responsible for his/her crew’s misconduct. I don't know anything about the circumstances of their leaving, and it may have been entirely unrelated to this lawsuit or these claims. But if you want to draw inferences and start speculating, I’d suggest that the appropriate inference is that Ms. Miers and the other top management of the firm did such housecleaning as may have been necessary, if there was any misconduct on the part of those branch-office lawyers. That’s a good thing, not a bad thing.
Unless you’re similarly willing to ride out of town on a rail the top management from every major bank and securities firm in the country — ’cause they’ve all been sued, and all paid out money to settle such lawsuits — you ought to rethink these allegations.
And ask yourself this: If you’re a conservative in favor of tort reform and curbing litigation abuse, what in a Justice’s background is likely to make him or her more receptive to the need for such things than having been targeted with bogus lawsuits?
Shame, shame guys and gals — you ought to know better than this, and if you didn’t, you ought to have asked a lawyer who did.
Is the Miers nomination all about Dubya flipping off his base?
Apparently some conservatives are suggesting with a perfectly straight face that the explanation for, and the real point of, the Miers nomination was for Dubya to demonstrate his contempt for his base — to get in a bit of payback against those who've been bashing his buddy Alberto Gonzales and demanding that his judicial nominees come from their pre-approved lists. So suggests columnist Bob Novak, in an op-ed that I came upon after it was linked by my blogospheric friend Prof. Bainbridge. Peggy Noonan engages in some similar speculation in a WSJ op-ed. Presumably they can't come up with any other rational explanation for the nomination, so it must, by process of elimination, be all about revenge — Dubya having a tantrum, Dubya flipping off his base.
Oh, please. This theory amounts to disappointed conservatives clutching their hands to their breasts and sobbing: "It's all about MEEEEeeeeeee!!!"
It's just not. It's all about who will be in the slot currently occupied by Sandra Day O'Connor for what's likely to be the next 10-20 years.
Bush-41's legacy — that which springs to mind today when most folks think back to Poppy's presidency — consists of three things: The successful Gulf War, the broken promise on "Read my lips," and Justice David Souter. (People mostly forget that Poppy also nominated Justice Thomas, and Reagan still gets most of the credit for the final victory in the Cold War.) Bush-43's legacy — that which will spring to mind in a decade or more when most folks think back to Dubya's presidency — will certainly consist of at least three parallels: The GWoT, his tax cuts, and his Supreme Court nominations. That, folks, is the way the score will be kept by history. Macro, not micro. Stuff you can count on one hand and have fingers left.
Maybe these baseball metaphors are particularly appropriate because of Dubya's history with the Texas Rangers, so I'll indulge an another extended one: Ten years from now, only a complete wonk will be able tell you details about the average pitch count — balls versus strikes run up by the batters — in, say, the 73rd game of the Boston Red Sox' 2004 season. But most folks with even a passing interest in baseball, and certainly every Red Sox fan, will be able to tell you even ten years from now that 2004 was the year the Curse of the Bambino was broken and the Sox won the Series. Well, folks, focusing on whether Dubya's short-term approval rating among his base during the month of October 2005 goes down 10 points or 30 points as a result of the Miers nomination, and debating whether the nomination was calculated to produce that particular result, is like obsessing over the pitch count in the 73rd game of the Sox' 2004 season. (But I guess that's actually a simile, isn't it?)
Conventional wisdom has already stripped Dubya of most credit for the incredible coup of the Roberts nomination. Mere weeks after major elements of Dubya's base were soiling their knickers in nervousness over this "cypher" and this "unknown with only two years on the bench," history has already been rewritten to paint John G. Roberts, Jr. as the uber-Nominee — the nominee who was such an obvious and compelling choice that Dubya basically gets no credit for picking him. That's not very fair to Dubya, but it's also not very important. Because whether the nominee gives "the base" the warm fuzzy happy feelings or makes "the base" rend their hair and gnash their teeth is, frankly, barely consequential in even the medium run. And in the long run, it's completely inconsequential.
Lots more will happen in the thirteen months between now and the November 2006 elections. Yes, there may still be some people then who are still kicking their heels against the ground, holding their breath, insisting through their blue lips that they're going to stay home from the polls to "punish" the President for his "backstab" with the Miers nomination. But not many. In the first place, by the off-term elections, we'll probably have at least a small set of "Justice Miers" opinions to look at, and a substantially larger set of "Justice Miers" votes; she and new Chief Justice Roberts will have a Supreme Court track record by then, if only a short one, and by November 2006 that's going to matter more than anything that happened in October 2005. Second, God forbid, but al Qaeda could push this so far back in people's memories with one more domestic-U.S. terrorist event before November 2006 that Republicans would look back to the days of October 2005, when we were all worrying about whether Dubya had alienated his base, as being "the simple times, the good old days." Hopefully that won't happen, but some sort of other stuff — consequential, important, and newsmaking stuff of the sort that regularly drives people of all political persuasions to the polls — will almost certainly be on the forefront of most voters' minds by the mid-term elections.
And by October 2015, whether the Miers nomination annoyed or sparked rejoicing among the conservative base way back in October 2005 will be the kind of thing relegated to a middle of the day "remember when" post in The Corner, a cute footnote to whatever Supreme Court nomination debate we're all having then.
By contrast, even in 2015, and maybe in 2025, and for every single year during that stretch that she's on the Court, the Supreme Court votes cast by Justice Miers, and to a lesser but still important extent her bases for those votes, will still be hugely important.
I know some folks think Dubya has, as Professor B eloquently puts it, "a short fuse, intense loyalty to a very select group of people, a strong stubborn streak, a reputation for holding grudges, and [was] maybe never really ... a true believer himself." But even if that's all so, do you think he's stupid enough to confuse the pitch count with the Championship?
So: It's not all about you, disgruntled conservatives. It's all about the Court, and about what this President does with his limited number of chances to influence its direction and the results it reaches. C'mon, folks — you know that, doncha? Sure you do, because that's the knowledge that got you (and all of the rest of us) all worked up in the first place! This is vastly important — but not because of whether Dubya's picked someone you do or don't approve of this week or this month. Thinking this is all about what kind of "message" Dubya was sending his base is just a self-important fantasy, and it's definitely a diversion from what's really important.
Like it or not, we won't have a basis to even begin to draw conclusions about whether these nominations have been terrible, great, or somewhere in between, until the end of their first season on the Court. And Chief Justice Roberts has just stood up for his first at-bat, and Justice-nominee Miers is still suiting up in the Senate locker room. But it's the score at the end which matters. Dubya knows that, and so do all of you — maybe you just forgot it for a moment, an understandable lapse attributable to your commendable passion.
Miers in court: Very good, cool, deliberate, poised, effective
If you want to know who's an effective courtroom lawyer and who's just a preening, posturing candy-assed (excuse my bluntness) litigator, one very good way to find out is to ask an experienced trial judge.
Blawger Evan Schaeffer quotes at length from a December 1996 Texas Lawyer profile on SCOTUS nominee Harriet Miers, which includes this bit from the Hon. Merrill L. Hartman, presiding judge of the 192nd District Court of Dallas County, Texas:
"I've had her in court. [She's] very good, very cool, very deliberate, very poised, never gets rattled, very centered and has a very matter-of-fact way of communicating to a jury that's very effective," says 192nd District Judge Merrill L. Hartman.
As I mentioned in a comment on Evan's blog, I've appeared before Judge Hartman. He's among Dallas County's most experienced and respected trial judges, a no-nonsense jurist who's quick on the uptake, extremely efficient and professional, and unlikely to gladly suffer fools. I don't believe he'd be inclined to engage in grade inflation, and words like these from a trial judge like him constitute high, rare, and well-informed praise.
By all means, read the whole thing if you want to get a sense of what her peers in Texas were saying about Harriet Miers long before she'd ever become Counsel to the Governor of Texas or the President of the United States.
Here's another bit of information, about which you'll just have to take my word for it: I'm disinclined to quote from emails from readers unless the writer has expressly authorized me to do so, and I'm going to stick with that policy rather than infer their implied consent and start cutting and pasting onto my blog. But as of this moment, I've got 312 non-spam, still-unread emails in my inbox, all received since Monday morning, and almost all of which have to do with my posts about Ms. Miers. I've managed to at least skim through another three hundred or more. Most of them are from readers with opinions but no personal knowledge, and I'm grateful for those of course. But of the ones I've managed to read so far, I've gotten unsolicited emails from a former professor of hers; a fellow editor on the Southwestern Law Journal; a former colleague in a high leadership position of the State Bar of Texas; several lawyers who've had cases with and against her; and three different lawyers (including a judge) who've practiced with her and/or who describe her as a role model, pioneer, and a personal inspiration. Percentage thanking me for publishing factual and detailed information about Ms. Miers' record: 100 percent. Percentage expressing any doubts about her fitness for the Court based on personal knowledge and dealings with her: Zero.
The notion that Harriet Miers' only qualification, or even her main qualification, is her friendship with Dubya is outrageous.
(Hat-tip to Orin Kerr on the Volokh Conspiracy.)
Wednesday, October 05, 2005
Professoriat to Dubya: Shut up and do what we tell you, you're just the President
If you have any doubt that much of the opposition to the Miers nomination is generated by reflexive elitism, I humbly submit these comments by Randy Barnett, the Austin B. Fletcher Professor of Law at Boston University School of Law, whose anti-Miers WSJ op-ed I criticized on similar grounds earlier this week:
I do not expect any president to know enough about judicial philosophy to pick judges on his own. I expect him or her, however, to appoint advisers who do know about such matters and follow their advice.
Catch your breath, and then re-read that closely. "Any president," sez the good professor. I suppose that would include, for example, Duke Law grad Richard Nixon, Yale Law grad Jerry Ford, Yale Law grad Bill Clinton, and all of our 23 other lawyer-presidents (including that Lincoln fellow, who didn't go to law school at all!).
If you believe the world should be run by philosopher-kings, by experts, by PhDs and law professors (mere J.D. degrees don't qualify, it seems, and don't make me laugh by suggesting that a mere voter's opinion might count); if you believe that the rest of us are just too damn dumb to be trusted with pointy objects, puddles of water deeper than 1/2 inch, or judicial nominees — well then, this makes perfect sense.
However, if that's your view, then you ought to re-write the Constitution. Because it very specifically vests the appointment power in the President, whether he's a lawyer or a butcher or a baker or a candlestick maker. (A mere Harvard MBA, again, is presumptively incapable of managing to tie his shoes or pick a judge, never mind that Roberts fellow or any of Dubya's other nominations.) What's important, according to the constitutional scheme devised by the Founders, is that "We the People" pick a President, who then picks the Justices, who are then confirmed or not via the advice and consent of the Senate. But let's just do away with all that nonsense. How can the United States Senate compare to a faculty senate? How can the President of the United States think that sixty-two million votes in the last election give him a right to make this decision?
I continue to respect Prof. Barnett. But I reject — I mock and I ridicule without apology — his notion that only "experts" or "advisers who do know about such matters" have the ability or the authority to decide who ought to be appointed to the courts. I submit that that notion is profoundly anti-democratic, profoundly insulting to the American public and the office of the POTUS (whoever holds it), and profoundly contrary to both the history and intent of our constitutional structure under the rule of law. As I commented on Prof. Barnett's post, if he really believes that, he's "not just off into the elitist deep end now, [he's] drowned in it."
But it pretty well would explain the opposition to this pick, wouldn't it? As one of my readers wrote in a comment to another post, the headline should be:
BUSH NOMINATES NON-SCRIBBLING NON-PROF; SCRIBBLERS, PROFS FIT TO BE TIED.
Miers, the ABA, and candles in the darkness
I'm about to admit to résumé fraud.
I'm pretty sure that on every written résumé I've ever had after beginning the practice of law — and being somewhat of a credentials snob myself, I've always had one lying around somewhere — in listing my "professional affiliations," I've had a line reading something like this: "Member: Houston Bar Association, State Bar of Texas, and American Bar Association." And that's sometimes been a lie.
Oh, I've been a member of the State Bar of Texas continuously, without break or exception, ever since the day I got my law license (Nov. 24, 1980 — the date's embossed on my bar card). In Texas, you have to be; membership in the State Bar is mandatory in order to be licensed. And I believe strongly in the professional, charitable, educational, and public service work done by the Houston Bar Association. Like the SBoT, it's essentially an apolitical group, one that includes lawyers of every political stripe, from all practice areas, from all size firms, etc. So I've tried to keep my membership in it current, and I occasionally go to some of the Houston Bar Association's continuing legal education luncheons, and so forth. I'm not particularly "active" in either the SBoT or the HBA, but I'm a willing supporter of both organizations and their work and goals.
But my membership in the ABA has been spotty at best. I think if one were to consult its membership records, one would find I've not been a member now for more years that I have been a member. And I certainly haven't revised and re-revised my résumé to reflect my drifting in and out of the ABA.
Like many lawyers, I'm ambivalent about the ABA. Like my local and state bar associations, it does some very commendable things, particularly with regard to pro bono and continuing education. Some of the practice specialty sections of the ABA are quite good, and the regular magazine of the ABA Litigation Section, for example, is quite useful.
And certainly when Lewis F. Powell, Jr. was nominated to the Supreme Court in 1972, his past presidency of the ABA was universally considered an important qualification. It demonstrated his devotion to the profession; it showed that he was a leader among and respected by his peers; it showed his strong and regular character. No one dreamed of suggesting that it said anything, however, about how he might vote in cases on the Supreme Court! Nor, I think, can any of his votes be explained in hindsight as having had anything specific to do with his past ABA involvement.
But over the course of my own career, the ABA has become increasingly political — more of an advocacy group for particular political points of view, and less of a "service to the profession and society" organization. And not to put too fine a point on it, it just irks the hell out of me for the ABA to be using my dues to help promote any political agenda — regardless of whether that political agenda matches up with my own or not! I haven't resigned in a huff, as a protest. But unless I've been at a firm that paid the ABA membership dues automatically for all of its lawyers — and paying the dues is the only "qualification" for membership besides having a law degree, I think; it's by no means an "exclusive" club or a credential suggesting any particular individual merit or accomplishment — I haven't maintained my ABA membership continuously or even regularly.
Nevertheless, of all the arguments being thrown up against the Miers nomination, I think the one that most disgusts me — other, perhaps, than the ugly innuendo implicit in comparing her nomination to that of the ethically challenged Abe Fortas — is the suggestion that because Harriet Miers has been not merely a member, but active in the ABA, she's somehow an unfit nominee. Here (slightly edited) is something I left as part of a comment over on Professor Bainbridge's blog today (emphasis in original):
I explain over on my own blog, at length, why Ms. Miers' participation in either the Dallas Bar Association or State Bar of Texas ought not trouble any conservative, for those are not political lobbying or advocacy groups, but genuinely apolitical "service to the profession and society" groups.
With respect to the ABA, if there were indications that Ms. Miers had helped move that group to the left, or that it had moved her leftward, I agree that would be troubling; but there are no such indications. Prof. B refers to her "beloved ABA"; but a lawyer who's invested so much into her local and state "service to the profession and society" groups naturally longs for something similar, and similarly effective, at a national level. It is a damned shame, a travesty, and a legitimate indictment of the legal profession that we've lost and we now lack an apolitical national bar organization comparable to the Dallas Bar Association or the State Bar of Texas. The ABA used to be one, but it's been possessed by demons. I cannot fault her for wanting and working to see them exorcized. Indeed, I'm ashamed that I, like so many other lawyers who value the need for such a national bar association, gave up that fight.
How dare the opponents of this nomination condemn Harriet Miers for lighting a candle instead of raging against the dark? How dare they fault her for acts of professionalism?
I don't draw the comparison to Justice Powell to suggest that Ms. Miers' voting on the Court would likely resemble his; indeed, to the extent that the ABA returned to its apolitical professional mission, one ought not be able to infer anything about likely votes from participation in it. And there were times that I didn't agree with Justice Powell's decisions on the Court (although many more times when I did). But no one who's even remotely knowledgeable on these topics would argue that Lewis Powell was anything less than a giant, not just of the ABA, but of the American bar; a prince among lawyers and men; beloved of and admired by his clerks and his fellow Justices; and a decent, dignified, and ethical man who embodied and exemplified the personal and professional qualities to which our profession ostensibly aspires. The notion that conservatives are now holding Harriet Miers' work with the American Bar Association against her — when she not only advanced its legitimate public and professional service goals, but endured much grief and frustration in trying her best to restore the ABA to those primary purposes — must have Justice Powell spinning in his grave.
Beldar on Hewitt Tuesday
Tuesday, October 04, 2005
Some questions about the Miers nomination for my blogospheric friend Professor Bainbridge
Admit it, Professor B! The real reason you're against the Miers nomination is that when she was in law school, she was one of those infernal student articles editors, isn't it?!?
But seriously, good sir: Are you familiar, at least by reputation, with Prof. Alan R. Bromberg of the Southern Methodist University School of Law? I believe he's the co-author — along with Prof. Larry E. Ribstein at the University of Illinois College of Law (who also blogs, and about whom I've frequently seen you blog, and with whom I've even traded a few blogging comments myself) — of several scholarly treatises on partnerships and related business associations.
When I was in law school writing my humble student Note for the Texas Law Review in the fall of 1978, Prof. Bromberg — even though he was from the faculty of a competing cross-state law school, and knew me not from Adam — very graciously reviewed and commented in detail on my manuscript. I'd sought him out because I was writing on how the version of the Uniform Partnership Act that had been enacted in Texas interacted with the state's community property laws. And as I recall, Prof. Bromberg, in conjunction with a standing committee of the Dallas Bar Association, had drafted custom-tailored add-on sections to supplement the model act, along with special explanatory comments that the Legislature included when it passed the UPA. He was more or less the "horse" from whose mouth I badly needed some key information regarding legislative intent (really, his intent, for he'd been scribe to and the intellect behind the Legislature's actions). I recall that he even shared with me some of his original notes from the committee's working papers. I was pleased to give him a special and well-deserved credit when my Note was eventually published.
Now what does any of that have to do with Ms. Miers' nomination to the SCOTUS? Perhaps very little. Ms. Miers was, of course, the President of the Dallas Bar Association a few years later, in 1985. And I mention my personal experience with Prof. Bromberg, SMU Law, and through them the Dallas Bar Association committee in part as an example of the kind of dedicated service to the public and the legal profession of Texas for which they've always been noted. No one should be under the illusion that the Dallas Bar Association is some sort of social club or résumé-credit printing press. And neither, as NRO's esteemed Ramesh Ponnuru has mistakenly assumed, are "the kind of people who spend a lot of time on Bar association stuff ... less likely to be conservative," because at least with respect to the Dallas Bar Association and the State Bar of Texas, they are both genuine service organizations that embrace and include all sorts of lawyers, and they therefore stay carefully apolitical.
In fact, my understanding from friends and former colleagues who practice in Dallas is that Ms. Miers was an exceptional president, even for an exceptional local bar association. The physical evidence of her contributions literally persists to this day, as for example with her leadership in the Association's remodeling of the historic Belo Mansion (locally famous much earlier in its history as having been the funeral parlor in which gangster Clyde Barrow's bullet-riddled corpse was exhibited to the morbidly curious public; sorry, but I had to work that in for the Google searchers someday). But Ms. Miers' intangible contributions to and leadership in the Dallas Bar Association also had long-lasting effects, and led logically in turn to her service as president of the State Bar of Texas (about which I've written here).
That in turn led to her valiant efforts to return the American Bar Association to its original apolitical status as a genuine professional organization rather than a politicized special interest advocacy group: She argued that the ABA had no business taking positions on substantive legal and moral matters like abortion, for example (which the ABA has famously endorsed and promoted, to the discomfort even of some pro-abortion rights lawyers).
And that in turn set me to wondering: Would you agree that Ms. Miers' credentials of service to and through these bar organizations cut in a positive direction? Would you further agree that, as with Justice Lewis F. Powell, Jr.'s presidency of the ABA, Ms. Miers' bar association credentials and history are relevant to her confirmation? Would you agree that taking on the interests that prompted the ABA to endorse abortion rights in the first place was a significant display of both principle and courage on her part? (I assume you're familiar with the special venom saved by the Left for prominent women who are anything less than 100 percent gung-ho in favor of abortion rights, yes?) Does this history affect your evaluation of the likelihood that she will hold fast to principled positions if confirmed, even if they're unpopular?
Secondly, I'm wondering if you've come across these comments about Ms. Miers from Professor Bromberg:
Alan Bromberg, one of Miers' law professors who still teaches at SMU, said he felt "great satisfaction" when he heard his former student had been nominated to the Supreme Court.
"I think she’s an extremely competent person and will approach every case evenhandedly," Bromberg said.
During Miers’ time at SMU she was elected to the honorary society and Mortar Board, in addition to serving on law review. Miers also received the prestigious 'M' Award given to students who are especially dedicated to the university.
The university recognized Miers' accomplishments by bestowing the Distinguished Alumni Award on her in 2002. She received similar recognition from the law school in 1997....
"Her objectivity and open-mindedness have always helped her no matter what she was involved in," Bromberg said....
Bromberg thinks that Miers has a "good combination of private and political experience,” that would help her as a justice.
"It will be interesting to have an appointment without any ideological track record," Bromberg said.
I'm sure you're troubled by the closing comment; you and many other conservatives would prefer a nominee with a long and very public ideological track record. (I respect that view, and I don't expect to dissuade you from it in this post!)
But otherwise, how does this fairly glowing endorsement from a law professor of some national note who teaches in your own field of expertise strike you? How many of your own students, for example, do you expect to be able to remember so vividly and discuss 35 years from now? And what does that say about those students whom you might expect to remember so well, so long? Would you acknowledge that this is at least some evidence of the "documented high power thinking" upon which you insist? And you've written, for example, of the absence in the current lineup of the Court of anyone with expertise, or even a very good understanding, of many important business law concepts. Do you find it encouraging, then, that during almost all of the 35 years since Prof. Bromberg was her professor, she's been handling mostly civil business litigation for, against, and even about various types of businesses?
I respect you not only as a leading legal scholar and as an opinionated blogger who's whimsically serious and/or seriously whimsical, but as someone who's also open-minded. I'll guess that at least some of the information in this post is new to you, or you'd probably have already discussed it on your own fine blog. (No slight to your wine blog implied, of course!) Can we at least agree for the present, then, that not all the evidence relevant to a thorough assessment of the Miers nomination is yet in? Or is your judgment on the matter already final, no longer subject to being disturbed by direct appeal, certiorari, or even mandamus?
(I apologize in advance, and fully understand, if you'd rather not comment publicly and in detail on matters involving your fellow professors and peers, and if that prompts you to decline to address my questions in their entirety, I'll take no offense and draw no adverse inferences.)
UPDATE (Wed Oct 5 @ 6:00pm): One of my commenters, parsing (and I think mischaracterizing) Prof. Bromberg's words that I originally quoted in this post, suggests that his endorsement was "rather tepid," and that these were "platitudes" that could be applied to "tens of thousands" of students.
Nonsense. Let me say directly what I merely implied earlier: You don't leave a vivid impression on a law professor that lasts thirty-five years by being an average, slightly-above-average, or even merely a very good student. How could a professor — and we're talking here about a nationally recognized expert in his field, a life member of the American Law Institute who's also been a senior fellow of the Yale law faculty and visiting professor at Stanford Law School — pronounce himself to be filled with "great satisfaction" if a mediocre student of his had been nominated to the Supreme Court? And in another source (a Knight Ridder piece) that I'd seen, but didn't bother to link (mea culpa), Prof. Bromberg is quoted as saying of Ms. Miers:
Alan Bromberg, one of Miers' law professors at SMU, remembers her as "a very quiet, very thoughtful, very good student" who made top marks but wasn't a class leader. "She was not the type of student who volunteered a lot of information, but if you asked a critical question, you got a solid, intelligent answer."
Now, we know that later on, after law school, she did indeed become a leader among her peers — managing partner of her law firm, president of both the Dallas Bar Association and the State Bar of Texas. But apparently, in law school, she wasn't what law students call "a gunner" — someone out to hog the spotlight and show off, someone out to embarrass and intimidate her fellow students. (Everyone who's been to law school or seen The Paper Chase knows what I'm talking about; "gunner" is not a term of endearment.) Are "solid, intelligent answer[s]" to "critical question[s]" from a "very thoughtful, very good student" who made "top marks" not good enough? What does Prof. Bromberg have to do to persuade us — hire a plane to skywrite "She's really smart"?
Miers versus Roberts
I've read several comments elsewhere to the effect that there's simply "no comparison" between Supreme Court Associate Justice-nominee Harriet Miers and newly-confirmed Chief Justice John G. Roberts, Jr. — the stated or unstated inference being that he "blows her out of the water" in every respect.
But actually, a few comparisons do occur to me that I'd like to share. (As always, I invite my readers to fact-check me and correct in the comments any errors I've made.)
Harriet Miers now holds the office (Counsel to the POTUS) that Fred Fielding held in the Reagan Administration. John Roberts was Fred Fielding's subordinate. Were John Roberts to return to his first job in government, he'd now be Harriet Miers' subordinate. The position to which, during the Reagan Administration, John Roberts addressed all those eloquent memoranda on matters of policy — with which many skeptics of his nomination were justifiably impressed — is the same position that Harriet Miers now occupies.
Counsel to the POTUS has responsibilities distinct from — and on some topics, equal to or even greater than — those of the Attorney General or the Solicitor General. Counsel to the POTUS reports directly to the President, has no superior but him, and need not obtain the Senate's advice and consent before taking office. John Roberts' top government job before he was confirmed as Chief Justice was as Deputy Solicitor General, an impressive and responsible (but still subordinate) position.
Harriet Miers has now successfully vetted a Chief Justice of the United States and many other federal judicial nominees. John Roberts helped prepare some nominees for their Senate testimony in the Reagan Administration, but had little or no role in their selection.
Harriet Miers' experience at the trial court level in complicated civil litigation covers many years, and every pretrial, trial, and post-trial aspect of a wide variety and number of cases. With comparatively fewer years in private practice, John Roberts has absolutely no such trial court experience — he's never picked a jury, never tried a case, never even taken a deposition. (And now that he's Chief Justice, he almost certainly never will.)
Harriet Miers hasn't argued in the United States Supreme Court, but she's handled several appeals in the lower state and federal courts. It's fair to say she's done more of what Roberts mainly did in practice than he's done of what she mainly did. (If you can follow that grammar.)
Harriet Miers has experience inside the executive branches of both the federal government and one of the largest and most populous states. John Roberts' executive branch experience is exclusively federal.
Harriet Miers has likewise practiced extensively in both state and federal courts. Almost John Roberts' entire practice has been in federal court (albeit sometimes dealing with state-law issues there).
Harriet Miers has run for and served in public office. John Roberts hasn't.
John Roberts' service to the legal profession through voluntary and/or elected positions in bar organizations and the like has been significant and commendable, but vastly less than Harriet Miers' at either a local, state, or national level. Indeed, her service to the legal profession has been superior not only to John Roberts', but to that of every other SCOTUS nominee since the late Justice Lewis F. Powell (one of whose key qualifications during his confirmation was asserted to be his service as President of the American Bar Association, before it began to take partisan positions on political subjects).
Harriet Miers has met a payroll, had responsibility for over 1000 lawyers and staff in several cities, negotiated and implemented a major law firm merger, and managed the egos of a 400+ lawyer firm. John Roberts has been a partner in, but not the managing partner of, another major law firm. He had significant responsibility, but for much of his time there, he was not even the head of his small and narrowly-focused department.
John Roberts is energetic and hardworking, but still has a family life (wife and two small children), which may be a source both of strength and occasional distraction. Harriet Miers, by all accounts, works as long or longer an average day despite being older, and has sacrificed the opportunity for husband and children to her career. Both, happily (and as they would no doubt have it), can be predicted to work hard for their country in some capacity for, in all probability, the rest of their lives.
My regular readers will recognize that I'm not knocking John Roberts in these comparisons. I think he is absolutely fabulous, with other qualities that vastly overcome any gaps in his background and experience. But as it happens — and I don't think this is a coincidence — Harriet Miers' experience fills some of those gaps quite handily, and vice versa. I emphatically do not agree that Chief Justice Roberts' credentials, terrific though they be, are the only sort of credentials that can qualify a person for service on the Supreme Court. And I suspect he'd be among the first to agree with that proposition.
Correcting Rich Lowry's "pro-Bush legal type" source on Harriet Miers' credentials
Writing yesterday on NRO's The Corner blog in a short post entitled "Deplorable," NRO editor Rich Lowry quoted a "a very pro-Bush legal type" in part as follows:
Says Miers was with an undistinguished law firm; never practiced constitutional law; never argued any big cases; never was on law review; has never written on any of the important legal issues. Says she's not even second rate, but is third rate.
I emailed Mr. Lowry with my reactions, and he's usually been very generous and fair in responding to my emails and posts as time permits. For whatever reasons, though, I haven't yet gotten either a response or a correction out of him on this, so I'm posting here in more detail to point out that his "very pro-Bush legal type" doesn't know squat. He's just dead wrong on some of his facts, and very confused on others. And by uncritically republishing this correspondent's comments, Mr. Lowry has done both Ms. Miers and The Corner's readers a serious disservice.
I also count myself as a "very pro-Bush legal type," but unlike Mr. Lowry's source, I'm not anonymous, and my own pedigree and credentials as a knowledgeable Texas practitioner are available for anyone to assess. If his source wants to go public, I'd be delighted to debate him on any of the points I'm about to make, because they're all based on my personal knowledge, and I'm quite confident Mr. Lowry's source must either lack that knowledge or is just being very loose with the truth.
Locke Liddell & Sapp is the product of a merger between two old and very well-regarded firms — Locke Purnell in Dallas and Liddell Sapp in Houston. It was a merger of equals, and one that Harriet Miers presided over as managing partner of Locke Purnell and co-managing partner of the merged firms. Calling the resulting firm, or either of its predecessors, "undistinguished" is absolutely outrageous and contrary to fact. It's the kind of thing that only an absolute snob — someone who takes the position that no Texas firm could ever be anything but undistinguished — would say. And like the lawyers from Locke Purnell and Liddell Sapp, I've been regularly kicking such snobs' butts in court for the last 25 years — and not just in Texas courts, either.
Do you honestly think Microsoft or Disney would hire a "third-rate" lawyer from an "undistinguished firm"? Those are a couple of her personal clients, but I can tell you from personal experience — having handled and sometimes tried cases with and against Locke Purnell's and Liddell Sapp's lawyers for 25 years — that their respective client lists, and now that of the combined firm, are as blue-chip as any law firm in Texas can claim. I'm talking the top Texas banks and businesses; major Texas newspapers; national insurance companies; hospitals and universities; multinational corporations with business or litigation in Texas — top-tier clients that any firm anywhere would be delighted to have. Those sorts of clients do indeed have big cases.
I vividly recall, for example, a case I handled in the early 1990s in which I jointly represented three multi-billion dollar clients — The Prudential Insurance Company of America, New England Mutual Life Insurance Company, and the General Electric Pension Trust — in "lender liability" litigation arising out of a $125 million mortgage on a downtown Houston office building. A conflict arose among my clients, as a result of which GEPT had to seek new counsel. GEPT could have hired anyone they wanted, anywhere in the state, or in the country for that matter. I was not at all surprised, however, and very pleased, when GEPT, on the recommendation of its regular Wall Street counsel, hired one of Harriet Miers' partners from Locke Purnell, who then did a splendid job on GEPT's behalf. (Another co-defendant, an East Coast securities firm, ended up being tagged for more than $60 million in the eventual trial of the case, but the Locke Purnell lawyer and I both got our clients out of the case well before that on very favorable terms.)
As for "never practiced constitutional law": Well, duh. How many lawyers in the United States practice nothing but constitutional law? Maybe 0.001 percent, if that. Not even John Roberts — whose private practice was almost all in the Supreme Court, in appeals — practiced constitutional law on a full-time basis. Very few lawyers practice constitutional law regularly, but constitutional issues arise in all sorts of contexts, including very important and high-stakes business litigation (e.g., defamation lawsuits that raise First Amendment issues) of the sort that Ms. Miers and her firm have handled. Only someone poorly informed about civil litigation in the American legal system would think that only constitutional law specialists are qualified to be on the Supreme Court. Any of the current Justices would laugh in your face if you made such a suggestion; so would any federal circuit or district judge; so would any experienced practitioner. (Larry Tribe might buy into that pitch, but I doubt he's Mr. Lowry's source.)
"Was never on law review"? Well, that's either an outright lie, or else (more likely) reveals exactly how ill-informed Mr. Lowry's correspondent was. Ms. Miers was an articles editor on the Southwestern Law Journal. Any Texas lawyer would know that the Southwestern Law Journal is the oldest and by far most prestigious law review at SMU Law School. It was and still is a highly regarded journal in Texas, regularly cited and relied upon by Texas trial and appellate courts. Indeed, it did, and still does, a better job of covering state law issues comprehensively than the state's top legal journal, the Texas Law Review (which instead maintains a national focus). And anyone with law review experience from anywhere would know that being an editor of any sort is a significant credential, and that most law reviews reserve their articles editor slots for their brightest candidates because those particular editors are dealing daily with law professors whose articles are being considered, edited, and published as they scramble for tenure.
As for her law school in general: No, it's not now considered to be a national powerhouse. But when I was heavily involved in recruiting new lawyers for both Houston's Baker Botts and for the Houston office of New York-based Weil, Gotshal & Manges in the 1980s, we considered SMU Law School to be a solid regional law school, particularly strong in business and corporate law. Its talent pool wasn't as deep, but its top graduates — like its law review editors — were every bit as qualified as the students we recruited from Texas Law School or from the top out-of-state schools. Dallas firms generally had an even higher regard for SMU, with many of the best lawyers from Dallas firms serving as adjunct faculty members there; some students who'd been accepted at Texas Law School, or even at out-of-state top-tier law schools, chose instead to go to SMU for its local connections if they intended to stay in Dallas. Some of SMU's competitors have probably caught up with it since then, but when Ms. Miers was a student there, SMU Law School was widely regarded as the second-best law school in Texas.
No, Ms. Miers didn't clerk for a Supreme Court Justice, nor even a federal circuit judge. But many new lawyers who intend to go into a litigation practice actually prefer clerking for a federal district judge at the trial court level because the experience they get, and the contacts they make, through such clerkships are more likely to be directly relevant to their intended practice. Only a tiny percentage of law school graduates have the opportunity to clerk for a federal judge at any level. Ms. Miers' clerkship for the Hon. Joe E. Estes, a federal district judge in the Northern District of Texas, Dallas Division — where she intended to practice — is nothing to sneeze at.
As for the last bit quoted above: Practicing lawyers do indeed write on "important legal issues." To our clients, in fact, the trial and appellate briefs we file on their behalf in court are written on the most important issues in the world. Our focus tends, though, to be practical and specific: Since lives and fortunes (not just tenure decisions) are directly at stake, both the judges and our clients tend to prefer that. Only an effete snob would suggest that only "law review" writing counts, but it's fair to say that like 99.9 percent of other practicing lawyers, Ms. Miers hasn't done much law review writing since she left school. (Neither, as I understand it, had John Roberts.)
In sum, if there's anything "Deplorable" about Mr. Lowry's correspondent's comments, it's their lack of accuracy, rather than anything that genuinely reflects badly on Harriet Miers. As I wrote yesterday, Ms. Miers is, by any objective standards, among the most successful lawyers in private practice in America. Anyone trying to paint her as if she's some night school graduate working out of a low-rent shopping mall is either badly informed, or has some hidden agenda.
A rebuttal to Prof. Barnett's "Cronyism" op-ed re the Miers nomination
I very strongly disagree with Prof. Randy Barnett's op-ed in tomorrow's Wall Street Journal (already available online). On the Volokh Conspiracy blog (where he's also entertaining comments to the op-ed), Prof. Barnett explained earlier today that he "wrote [the WSJ] essay over the past few hours without reading anything on the blogosphere, so it reflects [his] wholly unvarnished opinion." I give him kudos for writing quickly, but not well. This is far less coherent than his usual tight and polished writing.
We read, for example, these two paragraphs back to back:
Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.
Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.
I'm sorry, but that's worse than just overextending one's sports metaphors. That's downright internally inconsistent. I'll grant you that the Supreme Court is more important; but if she's "well qualified" for a seat on the court of appeals, then it's a huge leap to "unqualified" — a word Prof. Barnett doesn't quite get to, but obviously approaches — for the Supreme Court. And with due respect to Prof. Barnett and other academics, being a law professor ain't exactly the school of "hard knocks" either, and neither is prior judicial experience the sole (or even the best) way to learn that which "hard knocks" teaches.
Indeed, Prof. Barnett fairly drips with law professor-type elitism when he writes this statement:
To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate.
Not to put a fine point on it: that's just nonsense. It would be the very, very rare practitioner — as opposed to law professor or, perhaps, public interest group lawyer — who's spent his or her career polishing up a "well-considered 'judicial philosophy.'" Indeed, one of the ways John G. Roberts, Jr.'s career as a practicing lawyer was so unusual — so different from what 99.9 percent of practicing lawyers' careers have been like — was that his private practice dealt almost entirely with appellate litigation, and most of that at the Supreme Court level. Prof. Barnett himself has argued at least one celebrated case in the Supreme Court, and perhaps he's had other experience practicing law outside the classroom. In any event, it's surprising, but also very disappointing and frankly a bit insulting, that he seems to think lawyers who are neither judges nor professors must be somewhat retarded.
If you restrict Supreme Court nominations to those individuals who've spent their lives living in that rarefied atmosphere, pondering constitutional minefields to the exclusion of everything else, then you're going to end up with a Supreme Court whose members are out of touch both with America and with nuts and bolts legal practice. You're going to end up with a Court full of prima donnas who can't "just" concur, but instead feel compelled to write countless separate opinions. You'll often have no majority opinion, but instead special concurrences, partial concurrences, separate dissents, and partial concurrences only in Part III-D-6(f) but not Part III-D-6(g) of another's minority opinion. You'll get a Court that on the same day finds a display of the Ten Commandments constitutional in Texas and unconstitutional in Kentucky. You'll get a Court that takes up an incredibly important issue like redistricting, one that's splintered the Court in previous years, and then just leaves things more splintered when it's done. You'll get a Court that flip-flops within the space of a few years on issues involving capital punishment and what the government may or may not do in an attempt to promote morality. And you'll never see another unanimous Court like the one that produced Brown v. Board of Education.
You'll get a Court, in other words, with all the failings that this Court has had for the last several years.
My blogospheric friend Prof. Stephen Bainbridge, who's another early critic of the Miers nomination, quoted today the famous and still very funny comment by Sen. Roman Hruska on Nixon nominee Harold Carswell: "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?" Well, I'm not arguing in favor of mediocre nominees. What I am arguing is that a nominee is not mediocre, or unfit, or likely to be a disaster on the Court, simply because he or she comes from a career spent mostly in private practice! We in private practice tend to spend less time worrying about the meaning of life and the universe and how that guides and informs the evolution of substantive due process under the Constitution. But that's exactly the kind of — forgive, again, my bluntness — metaphysical crap you get in Supreme Court opinions written by lawyers who've spent most of their careers as academics.
Prof. Barnett asks: "Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president?" To which I answer: Absolutely and emphatically, I do indeed doubt that! I challenge that assertion, and I fortunately have something more than sneering innuendo to refute it. By historical American standards, any Supreme Court nominee would be considered qualified based on a successful career in a sophisticated private business law practice — at the head of a large, first-rate law firm in a large city of a large state — that has also included leadership positions in the local, state, and national bar, plus a substantial tenure in public service as counsel to her home state's governor and then the President of the United States. Ms. Miers' overall qualifications compare quite favorably to those Sandra Day O'Connor had when she was nominated. Indeed, her qualifications are very much in the mold of, and quite arguably superior to, those of the late Justice Lewis F. Powell, Jr., who had led a comparable law firm (Hunton & Williams) to Ms. Miers' and had been President of the American Bar Association (in an era in which it was still an apolitical service organization instead of just another special interest pleader). Only someone uninformed or unfairly dismissive of excellence in the private practice of law could ask a question like Prof. Barnett's, even rhetorically.
But the saddest and most troubling part of the early, reflexive opposition to the Miers nomination is from people who, like Prof. Barnett, are muttering darkly (and necessarily vaguely) that this nomination is comparable to LBJ's nomination of Abe Fortas to become Chief Justice in 1968. The Fortas comparison is badly, badly misleading — a genuine cheap shot. Abe Fortas' nomination to become Chief Justice was doomed if for no reason other than it came at the end of LBJ's term. That he was LBJ's longtime close friend and adviser, however, is not what leaves the lingering smell; many, many other Justices have been close friends of Presidents. Rather, the lingering smell comes from the fact that Abe Fortas had routinely engaged in ethically questionable conduct — including possible financial corruption — that made him unfit to be a judge at any level. He'd sometimes used his undeniable skills and intellect in the service of wicked causes, among them securing Lyndon Johnson's senate election through vote fraud. He'd maintained relationships that involved extra-judicial compensation even while he was an Associate Justice. Unless and until Prof. Barnett is able to make and back up comparable allegations against Harriet Miers, then he owes her an apology for even mentioning her name in the same paragraph with Abe Fortas'. It's an unjustified smear, and it's beneath his dignity (and certainly beneath hers).
Moreover, the classic meaning of "cronyism" is selecting someone for a position that they're incapable of earning and totally unfit for on their own. If all Harriet Miers had to commend her, as Prof. Barnett claims, is that she's been George W. Bush's lawyer, and if we could find no reason in her record, other than Dubya's friendship, even for her to have held that position, then a charge of "cronyism" might be appropriate. But Harriet Miers was already an accomplished and respected lawyer and leader before she ever represented George W. Bush. She's had accomplishments aplenty that are entirely unrelated to him. She well merited, based on demonstrated ability, the positions through which they became better and better acquainted. By every report, she's discharged those positions competently and effectively, rather than just skating by on the basis of the President's favor. Prof. Barnett and the others who are crying "Cronyism!" are using friendship and trust that's developed through superb service with the President as a disqualifying factor, irrespective of the nominee's other credentials and experience. That's a mistake. Alexander Hamilton was not against friendship, he was against incompetence and incompetents being promoted due to friendship. Hamilton himself was both George Washington's friend and his military and then political protégé, the "son Washington never had" and also his most effective cabinet secretary.
It certainly seems to me that Prof. Barnett is using the facts that Ms. Miers comes from a practicing lawyer's background, and that she's become a trusted friend while serving capably as Counsel for the Governor of Texas and the President of the United States, as his sole bases for arguing against her nomination. I believe the nicest term for that is "snotty." It's an unbecoming attitude, and this essay is just not up to his usual high standards of reasoning and writing. There may be persuasive reasons for opposing the Miers nomination, but I don't think these reasons are them.
Monday, October 03, 2005
Harriet Miers' bar service
In a comment on my previous post, one of my readers made an important point about whether a position of an ABA committee with which Ms. Miers was involved can fairly be attributed to her. That prompts me to make a a few general remarks about Ms. Miers' bar service, written from my perspective as a practicing lawyer from her home state:
The State Bar of Texas is a very different sort of organization than the American Bar Association. The Texas Bar includes every lawyer licensed to practice in Texas; membership is mandatory for, and equivalent to, having a license to practice. It is THE nuts and bolts organization of practicing lawyers in the state. It's almost completely apolitical, and it includes all sorts of lawyers among its active and regular participatants: conservatives and liberals, Republicans and Democrats, plaintiffs' lawyers and defense lawyers, personal injury and commercial lawyers, big firm lawyers and small firm lawyers, deal lawyers and adversary practice lawyers, office lawyers and courtroom lawyers, lawyers in private practice and lawyers in public service. (It even lets in law professors, but their influence is minor.) The Texas Bar is well regarded nationally among organizations of its kind, and it has been among national leaders and innovators in such things as promoting board certification and mandatory continuing legal education. Having been its president is a very impressive credential for a practicing lawyer, and a strong indication of genuine public spiritedness.
The Dallas Bar Association is similarly nonpartisan and apolitical, and historically the most active and best organized local bar group in Texas. (No offense intended to my friends here in the Houston Bar Association, which is also a very worthwhile organization, but they've been doing it better and longer in Dallas, including far more work that's had state-wide impact.) Again, being President of the Dallas Bar Association is a nontrivial credential — one taken very seriously by practicing lawyers there. It's not something you do to get ahead; it's something you do to be of service.
At least recently, the American Bar Association has been a far, far more controversial organization, one whose public positions I've often disagreed with. In fact, I and many other conservative lawyers long ago gave up on it. Harriet Miers didn't, and she's tried to keep it from swooshing off ever-leftward like a punctured balloon. That's actually a pretty good conservative political credential. Don't make the mistake, though, of tagging her with the ABA's crazy positions, or any of its positions for that matter, unless you can demonstrate that they're fairly attributable specifically to her.
The Miers nomination: a safe play from Dubya's standpoint who actually will bring needed "diversity" to the Court
Harriet Miers may be virtually unknown to you. But she isn't to Dubya — and that's the main point of her nomination.
With even a half-hour's worth of hindsight, I declare myself unsurprised that the President chose Ms. Miers. It's absolutely consistent with his appointment style for other positions going back to his days as governor of Texas: George W. Bush has consistently preferred those who are well known to him, of proven qualities and proven loyalty, over perhaps bolder or more popular choices with flashier résumés.
Those who think public opinion polls are crucially important to this and every other White House — I'm not among their number, as I think they're almost worthless and indeed pernicious and destructive of good governance because they put a premium on exactly the wrong things — will say that Dubya's "low numbers" caused him to deliberately refrain from picking one of the darlings of the Right. Far more intense opposition would have coalesced against a nominee like Fifth Circuit Judge Edith Jones, for example, even (and for essentially the same reasons) as such a nominee would have generated more applause from Dubya's "base." Many will view Ms. Miers as a "compromise choice" — an attempt to bunt for a single rather than to swing for the fences, a safe play dictated by circumstances.
I think Ms. Miers' nomination is, comparatively, a safe play, but I don't think it's the product of Dubya's standing in recent, or any, public opinion polls. I think it's mostly a product of two factors. The first factor — the one that became logically precedent to, albeit not more important than, the other key factor — was the unique-to-this-slot "need" to pick another woman to follow Sandra Day O'Connor. The first attribute used to narrow the field was thus whether a potential nominee had a Y chromosome, although being first didn't make an XX pair the most important criterion. No, the second and ultimately determinative factor can be completely summarized in three words: "No more Souters."
To you, me, the Senate, and the public, Harriet Miers may seem as much of a blank slate as David Souter was when Bush-41 nominated him. "Another 'stealth' candidate," many will say, "another blank slate about whom we know too little to make confident predictions!" That's already the official party line of the Dems, and it's something being muttered less loudly among puzzled Republicans as well.
But that is emphatically not the case from the perspective of George W. Bush. And the Constitution does, after all, give him the nomination power — not "the White House," not "the Republican Party," nor "conservatives generally," nor even "us'n who put him back into office." And he knows, and he's always known, that the blame for an appointee who turned out to become "another Souter" would likewise be placed on him. It's a responsibility and an opportunity whose benefits and risks he sought, but that he obviously takes very seriously indeed, because from Dubya's perspective, Harriet Miers was the one prospective female nominee about whom he personally felt that he could be most certain in predicting what sort of Justice she will become.
One of the points I made on the same day that John Roberts was originally nominated for this same seat was that his past long service to two Republican administrations — mostly in the role of private counselor rather than public advocate, aside from his actual Supreme Court arguments as Deputy Solicitor General — was absolutely crucial to his selection. The same is true of Harriet Miers, only moreso. When Dubya looks at her, he doesn't think "blank slate, might be a Souter." He thinks: "I know her, she's been my lawyer through thick and thin, and I know things about her judgment and character that nobody else knows about her, but that leave me entirely comfortable about how she'll turn out as a Justice."
As we read more and more of John Roberts' memoranda from his days in the White House counsel's office of the Reagan Administration, many conservatives became increasingly comfortable with his nomination based on the consistency of his approach as a private counselor on issues of huge public importance; in picking Judge Roberts, Dubya had the benefit of that paper trail (and his SG paper trail that we mostly still haven't seen), but he also had the second-hand benefit of first-hand appraisals from many trusted individuals who'd worked with him over his career. For Ms. Miers and Dubya, though, the appraisal is entirely first-hand, and he saw the paper trail as it was generated — in response to his own assignments — in the first place.
We're likely to see another stretch of bitching and moaning from the Democrats on the Judiciary Committee over how essential it is for the Administration to waive attorney-client, work product, and executive privileges and fork over every document that says at its top "To: George W. Bush, From: Harriet E. Miers." Expect the White House to hang very tough on this.
Conservative skeptics, I remind you that even though you haven't seen this stuff, Dubya has, so let your comfort level be in inverse proportion to the sounds of frustration and gnashing of teeth from the liberals. Sen. Brownback, your demand for guarantees as to how this nominee will vote on your key issues is like a fan in the stands insisting that the quarterback's play calling in the huddle be broadcast all over the stadium; whether you approve of the call or not, your team's odds go into the toilet when there's a microphone in the huddle.
About qualifications other than having Dubya's confidence: I heard an NPR reporter (not Nina Totenburg, but someone else) crack wise this morning about how the Dems would be looking at "Harriet Miers' qualifications, or more precisely, the lack thereof." That's more than simply ridiculous. That's elitist, condescending, and stupid.
I'm entirely unpersuaded that the Court needed another female Justice just to maintain its "diversity." But I'm actually quite pleased at other sorts of diversity that Harriet Miers will bring to the Court. For one thing, she's been a practicing lawyer in a high-level but real-world practice for most of her career. And her practice has been 1000 times more "nuts and bolts" than the extremely esoteric and rare appellate practice that Chief Justice Roberts had, for example.
I expect that some of the loudest critics of this nomination will be law professors and "public interest group" lawyers. [Edit: But see this very good post from UCLA Law Prof. Eugene Volokh, who I think has done a better job than his fellow VC bloggers so far in maintaining a historical perspective and thinking outside the snotty law professor/academic box. — Beldar] Well, I'm sorry, but we've already got plenty of representation from those segments of the bar on the Supreme Court's bench. We don't have anyone on the bench now, though, who's had to worry much about recruiting, administering, refereeing, and making payroll for a major law firm while still actually working for ordinary paying clients who have typically real-world legal problems.
Moreover, being not just a partner, but the co-managing partner responsible for running a law firm of 400+ lawyers requires a rare and nontrivial skill set. I can confirm to you from personal knowledge that her firm — formerly Dallas-based Locke Purnell Rain Harrell, now Locke Liddell & Sapp after much internal growth and a merger with a prestigious Houston-based firm — is indeed a major player among Texas megafirms. That background and those skills are every bit as valuable to the Supreme Court as, say, Justice Ginsburg's past service as general counsel for the ACLU. And a track record of having been the president of the Dallas Bar Association and the State Bar of Texas, and having been counsel for the Governor of Texas and the President of the United States, is altogether as impressive, and indeed to my mind considerably more impressive, than a few years' service on an intermediate Arizona appellate court — which is what Justice O'Connor was doing when she was nominated. What the hard Left will paint as "corporate toadyism" most of America recognizes as facilitating commerce and economic growth.
By objective standards, Harriet Miers has been among the few dozen most successful lawyers in private practice in the United States. Filter the Y-chromosome bearers out of that group and you're down to a couple dozen or less. Filter that group for significant public and governmental experience and we're down to a very small handful. And filter that small handful for lawyers in whom George W. Bush already has boundless personal confidence from first-hand experience, and your Venn diagram just has a one-member set left: Harriet Miers. Those are not inappropriate criteria, folks. From an overall viewpoint, using any reasonable criteria, she's qualified enough. But using those particular criteria, she's uniquely qualified.
Would I have picked her? Probably not. But she hasn't been my lawyer, and I'm not the President. If I were the President, and I wanted to make a safe play — a non-Souteresque woman — I might very well have picked someone like her, though. And so I will happily support this nomination, and I wish Ms. Miers good luck, fortitude, and grace in the confirmation process.
Sunday, October 02, 2005
Fitzgerald's assurances and the DoJ guidelines
Reprinted (and slightly edited and expanded) here is a long comment that I just left on Tom Maguire's blog, prompted by Tom's excellent observations about how Judith Miller's recent, sudden decision to testify might or might not have been affected by (a) the DoJ guidelines restricting prosecutors from willy-nilly subpoenaing of reporters and (b) any (purportedly recent) assurances given by Special Prosecutor Fitzgerald regarding the anticipated scope of his questions for her before the grand jury:
Tom, thanks for the comments over at my place, and the link here to the (more readable) copies of the correspondence. I'll throw a few observations into the mix — speaking as a trial lawyer, albeit one whose personal experience has been almost entirely in the civil arena rather than this one.
Contra your assumption: In grand jury proceedings, and in pretrial and trial proceedings before a judge, witnesses are not generally free to simply refuse (whether politely or rudely) to answer an examining lawyer's questions. Unless an objection has been made and sustained, or there's been an assertion of a recognized privilege that's upheld, witnesses are generally required to give whatever evidence they possess. The subpoena compels not only their appearance (and perhaps their bringing of specified documents and things), but also their testimony. Refusal to answer, just like refusal to appear at all, can give rise to civil contempt of court, or potentially even criminal contempt of court. (And that's the backdoor way that a witness' assertion of privilege gets heard by a judge when the witness has refused to answer questions before a grand jury, where no judge is typically present to consider and rule upon other, more routine evidentiary-type objections like "argumentative" or "compound" or "hearsay.")
The consequence of this general rule is that in the ordinary case — one not involving a reporter as the witness — the prosecutor (or any other examining lawyer) has extremely wide discretion and authority with respect to the subjects about which he inquires. And in a grand jury, there's no judge present to hear or rule upon the sort of "relevance/fishing trip" objections that might be made in other judicial arenas. The prosecutor is therefore especially free to stray far afield from his original intentions when he invited or subpoenaed the witness to appear before the grand jury. He may indeed ask follow-up questions that lead him down all sorts of other paths (or rabbit trails). And when before grand juries, prosecutors don't face the downside of annoying a judge or regular jurors, so they have the luxury of blundering and fumbling around more in hopes of stumbling over something surprising and important.
These are some of the reasons why the prospect of giving grand jury testimony is so unsettling for any witness — once you're in there, things can normally go almost anywhere, calling time out isn't allowed, and you're without counsel or a judge to run interference for you.
However, I very much agree with your original point: The DoJ guidelines, although merely guidelines and not rules, nevertheless take our present situation out of the general rule. So long as federal prosecutors follow them, those guidelines in effect function as a pseudo-privilege.
It's entirely unclear, and I think actually quite unlikely, that Judith Miller would have gotten any more protection from any state shield statute, or from any proposed federal shield statute, or from any federal common-law privilege, than she's already gotten via the DoJ guidelines. The guidelines' protection, like that of the shield laws, has never been absolute and has always been subject to being overcome upon a proper showing (which every federal judge who's looked at this case has agreed that Mr. Fitzgerald has indeed made with respect to Ms. Miller).
But I believe you're absolutely right: Those guidelines don't just limit the circumstances under which a federal prosecutor can subpoena a press witness, but they also limit the scope of the questioning he puts to that witness once he/she is there and on the witness stand. The protection of the guidelines would be shallow indeed, a complete mockery, if they required the prosecutor to jump through hoops to serve a subpoena, but then permitted the prosecutor to ignore those hoops once the witness takes the stand!
I'm not suggesting that the DoJ guidelines are every bit as comforting, from the standpoint of the reporter witness, as a formal privilege created by a shield statute or its common-law equivalent would be. The three judges on the DC Circuit panel, while confirming that Mr. Fitzgerald had complied with the DoJ guidelines, nevertheless also agreed with the DoJ's position that they're only guidelines that restrict the DoJ, and that they do not create a "right" or a formal privilege that belongs to and may be independently asserted by any witness. The sanction for violation of the DoJ guidelines is the prospect of the federal prosecutor facing internal discipline (or simple loss of face) within the DoJ — not the exclusion of the testimony obtained in violation of the guidelines. There's less opportunity for judicial review and intervention, then, with respect to the DoJ guidelines, and the witness must rely on the ethics and professionalism of the federal prosecutor. So in requesting advance assurances as to the intended ambit of his questioning, Ms. Miller's counsel weren't acting unreasonably.
But Mr. Fitzgerald's excellent reputation — among fellow prosecutors, defense lawyers, judges, politicians of every stripe, and anyone else who follows such things — is long- and hard-earned. Unless one's willing to posit that Mr. Fitzgerald was going to engage in a bit of deliberate career-ending trampling of the DoJ regulations (by chasing down rabbit trails with a press witness as to which he hadn't yet demonstrated a compelling need and thoroughly exhausted other avenues of inquiry), then Ms. Miller has never been at any real risk of his questioning running amok, far beyond the scope of her communications with the confidential source originally under scrutiny (whom we now know for sure to be Mr. Libby).
It's therefore doubtful that Mr. Fitzgerald took any offense at being asked (and/or re-asked) for assurances. It's equivalent to being asked, "Are you following the rules of your job?" Most people don't mind saying, "Yes, I'm doing that." But it's also doubtful that Mr. Fitzgerald had any reluctance to give such assurances either now or if asked for them a year ago. Either way, he probably would reserve for himself the right to recall Ms. Miller for broader questioning; but before recalling her, he would again have to comply with the DoJ guidelines for that broader questioning. And having then done so, he would probably be happy to give further assurances that his new questions wouldn't go beyond what his new investigation had justified (on grounds of necessity and exhaustion of other means). ("Yes, I'm still following the rules of my job.")
Bottom line: I'm highly skeptical of Ms. Miller's lawyers' suggestion that Mr. Fitzgerald just recently gave up something new or important or meaningful that suddenly changed Ms. Miller's analysis and justified her decision to testify. It's quite possible that her lawyers didn't ask for the same assurances earlier, but I think it's very unlikely that they asked for and yet were denied them. Likewise, while it was prudent for Ms. Miller's and Mr. Libby's lawyers to confirm in advance that Mr. Fitzgerald wouldn't look askance at them for having direct discussions (i.e., Mr. Fitzgerald wouldn't charge anyone with obstruction or witness-tampering for that), there's no reason to believe Mr. Fitzgerald wouldn't have given that same assurance a year ago either. At this point, we know for sure that Mr. Fitzgerald wants (and has long wanted) Ms. Miller's testimony on the subjects as to which he's already complied with the DoJ guidelines. That tells us a lot, and it's quite certain. But whether he wants, or has ever wanted, or might in the future come to want, anything beyond that from Ms. Miller is really speculative, and almost certainly without any present justification.
UPDATE (Sun Oct 2 @ 2:45pm): See also this discussion at attorney Jeralynn Merritt's TalkLeft blog. As I commented there, I agree entirely with Ms. Merritt about subpoenas and subpoenas duces tecum in general, and about the breadth of a prosecutor's questioning discretion in normal circumstances, but I think she may have given inadequate consideration to the ongoing and continuous effect of the DoJ guidelines here. And Jack Shafer's take on Ms. Miller's change in position, and the winners and losers of her fight, is also worth reading (emphasis his):
The [NYT editorial] page's Aug. 29, 2005, editorial universalized her plight: "If Judith Miller loses this fight, we all lose."
We lose? I'm sorry, but the only losers I count today are Miller and the Times editorial page, which she left holding the soiled bag of her absolutism.
Sadly, I suspect that when the NYT gets bashed from the right and the left, they don't interpret that as meaning they're probably wrong, but as meaning they're "fair," "balanced," and "intrepid." And always, always, above the rest of us. Talk about your unproductive feedback loops!
Least surprising, yet most chilling pitch I've read this week: "Spitzerism"
TNR's Noam Scheiber, in an article in this week's NYT Sunday Magazine, speculates about the possibility that New York Attorney General Eliot Spitzer is what the Democrats really need on a national basis. "[I]s Spitzerism useful only in the narrow context of Democratic law-enforcement officials running for higher office?" he asks. "Or is there, lurking somewhere in Spitzer's experience, an approach that Democrats around the country could mine for political success?" I guess that depends on what Spitzerism is, which Mr. Scheiber explains very clearly and, I think, accurately:
Attorneys general are, by definition, law enforcers. But Spitzer expands this template: he casts himself not just as an enforcer of the law per se, but also as an enforcer of a broader social compact between ordinary people and large institutions like government and business.
Ah. So there's a contract between ordinary folks, government, and business. It's very broad. But it's not written down. In fact, the only person who knows how broad it is, and what's in it, when and if he deigns to tell us those things, is Eliot Spitzer. Whose job, as he views it, is to use the power of the State of New York to enforce not "the law per se," but ... well,
whatever he damn well pleases whatever he thinks will get him elected to his next target office whatever his keen insight perceives as being within that broader, unwritten social compact. (Or maybe its penumbras and eminations.)
You remember agreeing to that social compact, doncha? It was in the fine print on the back of one of those credit card applications you really shouldn't have sent back in. The one with the low introductory rate (gradually increasing until Eliot Spitzer owns your soul).
And I think that pretty much explains why so many Democratic senators voted against confirming Chief Justice John G. Roberts, Jr. He's just too much of a "law per se" kind of guy for their taste, huh? Just not Spitzeristic enough. (Or is it "Spitzerific"? Would Sen. Specter say "Super-duper Spitzerific?")
At the conclusion of this article, Mr. Scheiber tells us:
If you had to distill Spitzerism into a single expression, it might very well be something like: "Making risk work for the middle class." Getting that message across may be just as important to the Democratic Party as it is to Spitzer himself.
I think they can simplify that message even further: "Spitzerism: Risk. Class war." It probably won't get him the 2008 Democratic presidential nomination, but might get him the Veep spot on a John Edwards ticket.
Saturday, October 01, 2005
Federal courtrooms as Sherwood Forest
Imagine that you're a trustee. (You've never heard a fairy tale start with that line, I'll bet. But this isn't a fairy tale, so bear with me.) The trust to which you owe fiduciary duties owns, and has rented out, a house, so you're effectively acting as that property's landlord on behalf of the trust. You must act prudently, lest you become personally liable yourself to the trust for mismanagement. You can't just make decisions based on a lark.
Imagine further that the house was rented to a husband and wife (and indeed, the trust is connected to the husband's family). But they're getting a divorce. The wife has kept possession of the property, but neither she nor her husband nor anyone else have paid you (as trustee) any rent for months. On behalf of the trust, you reluctantly start the mechanisms for evicting the wife. But at the last possible moment, the eviction is blocked when the wife files for personal bankruptcy.
So now you've got to get the approval of the bankruptcy court to regain possession of the property. You ask the bankruptcy court to lift the "automatic stay" that blocked the eviction proceedings. That kind of request is one of the absolutely routine (if sad) proceedings that bankruptcy courts handle in large volume, day in and day out, and you're going strictly by the book. And as per that routine, the federal bankruptcy judge agrees with you, rules for the trust, and orders the wife to leave the property.
But bankruptcy judges are subject to supervision from federal district judges. And suddenly, to your complete surprise, one of those federal district judges yanks your case out of bankruptcy court, and pulls it instead into his federal district court. He hasn't been randomly picked out of all the federal district judges in that district (which is one way the federal courts prevent corruption and misconduct); instead, he's picked himself. And for reasons he won't explain, he orders that the wife can stay in the house. Indefinitely. Rent-free.
Imagine further that every other lawyer and judge who looks at this situation agrees that what this particular federal district judge has done is simply incomprehensible. And it looks really fishy, because there's a connection between him and the wife: She'd been prosecuted in his court for fraud, but she'd pleaded guilty and the federal district judge had put her on probation. And he'd been meeting personally with her, supervising her probation. That by itself is pretty rare, but it's something this judge has done before with other probationers. And this wife, well, she's cute — "waif-like," everyone says. (I'm thinking Kate Mossish, without the cocaine and the heroin, one hopes; or maybe Nicole Kidmanesque; or Keira Knightlyescent, if she's really young.) Now don't jump to conclusions — nobody can prove, and nobody even claims to have a solid basis to claim, that there's an additional personal, much less sexual, relationship between them beyond "judge/probationer." But the federal district judge admits that it was through his supervision of her probation that her circumstances with the house and the eviction proceedings somehow came to his attention. Exactly how is disputed, but it's also clear that it wasn't through any normal means. The lawyer you've hired to represent you and the trust was kept entirely in the dark about it, for example. The proper motions weren't filed, bonds weren't posted, certified letters weren't sent, notices weren't given, magic words and incantations weren't uttered, and rules weren't followed. They just weren't, not even sorta-kinda. None of them.
Yet this federal district judge continues to block your every effort to regain possession of the house for the trust. He won't give a reason why other than "Because I said so." And the wife just keeps living in the house — absolutely rent-free! — for seventeen more months. Eventually, some judges from the court of appeals — the next level up from the district courts — start looking at this pretty hard and asking some embarrassing questions. So the federal district judge finally punts the case over to another federal district judge (but it's one he's hand-picked). And finally, finally, the court of appeals issues an extraordinary order to make the wife leave the house.
But on behalf of the trust, by now you've run up tens of thousands of dollars in legal fees and expenses that the wife will never pay. The trust has lost about $35,000 more in rental income that will never be recovered. That is, the wife's gotten that much value from the trust — absolutely for free. But her bizarre protector, the federal district judge, refuses to admit any wrongdoing, except maybe (he says through his own lawyer!) that he ought to have done a better job of preventing "miscommunications." He can't offer any legal justification for what he's done — "not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg."
Now imagine further that when you've used the legal and appropriate mechanisms for pointing out and challenging judicial misconduct, the chief judge of that court of appeals dismisses your complaint — twice. She won't even dig into the other fishy facts to sort out the ones that are in dispute. She doesn't bring all this to the attention of the House of Representatives, so they can consider whether to begin impeachment proceedings against this federal district judge. She won't make the federal district judge reimburse the trust. She doesn't suspend him or dock his pay. She doesn't even make him apologize. The chief judge and her fellow federal judges have the legal power to do those things, to police their own ranks; indeed, they have the responsibility and the duty to do them when appropriate. But when you try to appeal her ruling, the majority of a Judicial Council comprising five other circuit judges and five other district judges votes — over one and a half dissents — to uphold what the chief judge has done. And now you're done; you have no further appeal, you can't go to the Supreme Court. You're at the absolute end of the line.
Now imagine that you've just told this outrageous tale of woe to me, and that you ask me: "Beldar, what do you think?"
I'd say to you: "Friend, I think you must live within the jurisdiction of the United States Court of Appeals for the Ninth Circuit."
I'd say: "I'm glad there's at least one judge who was on that Judicial Council who's brave enough to publish his blistering thirty-nine page dissent, just to tell your sad tale to the public." Indeed, that judge is absolutely correct when he writes:
Congress has surely not made us the most powerful judges in the world so that we can bestow thousands of dollars of bounties on our personal favorites whenever we feel like it.
And likewise when he writes:
A federal courtroom is not Sherwood Forest; a judge may not take property from one party and give it to another, except by following the established rules of civil procedure.
And then I'd say: "But I think there are quite a few other judges out there who must not understand the incredible damage that this sort of mess does to our judicial system. And that makes me really sad, and really worried too."
Nobody in this tale lives happily ever after.
(Hat-tip to Patterico, who in turn credits Jonathan S. Haas.) UPDATE (Sun Oct 2 @ 11:30am): A reader emailed me to point out that Denise Howell (who also blogs at Bag and Baggage and originated the term "blawg") waxes poetic over one aspect of this dissent over at Corante. (I didn't follow all the links, but did the one about the thong.) And Howard Bashman (who is many things but not likely waif-like) also has the story (plus a link to a 2004 LAT writeup at an earlier stage of the case, if you want to know the federal district judge's name); Howard confirms that this dissent appears to be the first judicial use of "blawg." We have nowhere to go but up, it seems — oh, how I aspire to someday approach the credibility, or even the popularlity, of a bankruptcy treatise! — but from tiny acorns do mighty oaks grow in Sherwood Forest and legal precedent.
I blush ...
... at the last sentence of this post. Thank you, Mr. Ponnuru.
But it is true that I'm available, even to Dick Morris, at a much lower hourly rate than Dick Morris.
To anyone who says that the right hemisphere of the blogosphere has any sort of monopoly on well-tempered, humorous, eloquent, and intellectually honest political argument: You're badly wrong, and as proof, I refer you to Houstonian Charles Kuffner's excellent blog, Off the Kuff.
I came upon Kuff's blog almost at the same time I started blogging. He immediately gained my respect during the civil and honest debate we carried on, both here and on his blog and in our respective comments sections, during the Texas Redistricting wars. His blogging ethics are impeccable. In fact, I'd gladly claim Kuff as a role-model, for I admire his ability to combine passion, good taste, and receptivity to contrary arguments. He's prolific, but way less wordy than I am. And he thereby justifiably attracts links from other good bloggers (not limited to those left of center) and a consistently high caliber of commenters (again, not limited to those left of center).
Kuff is an all-around class act and a genuinely nice guy. It's a slight misnomer — his blog's regular content includes yet also wanders far from our home city into state, national, and international matters (not limited to politics) — but Charles well deserves his recent recognition by the Houston Press as Houston's "Best Local Blog" again this year. I fully concur.
Blessed are the peacemakers
Tom Kirkendall has a post up that starts with a link to and quotes from some very good reporting by the Houston Chronicle's Todd Ackerman. And then — as the best bloggers do — Tom adds considerable value with further links, facts, and perspective. The subject is the apparent settlement of one of the most scary and unproductive spats imaginable in Houston: a nasty schism (bordering-on-bloodbath) among key institutional players at the Texas Medical Center, including Baylor College of Medicine, The Methodist Hospital, and St. Luke's Episcopal Hospital.
My ex trained at Baylor (one of two major medical schools at the TMC, and unaffiliated with Waco's Baylor University for many decades), and she then taught in the basic sciences (pre-clinical) curriculum there for several years, so I've had a more than casual interest in reading about this spat as it's developed. (Indeed, when I was all wired up in The Methodist's ER in July, I had a way more than casual interest in it!) And in the past, some of the rivalries and internal competition within the Medical Center — most famously, the DeBakey-Cooley/Baylor-UT feuds — have ended up motivating all parties to improve themselves. But as it's unfolded and grown, this dispute has become the kind of slow-motion train wreck that any knowledgeable Houston-booster just absolutely hated to watch. It did not look to me like any of the institutions involved were likely to come out better in the end, and all of them seemed to be at serious risk.
Apparently the catalyst for the compromise has been Texas Attorney General Greg Abbott. I'm impressed and grateful, but entirely unsurprised. I've been distantly acquainted with AG Abbott since he was in private practice, and I also had the pleasure to appear before him when he was a state trial judge. He's a smart, energetic guy. I suspect that just as when he was a trial judge, his role as AG gave him the credibility and tools with which he could aggressively lead the parties to water and make them stay put a while, even if he couldn't legally force them to drink. Using those tools creatively and patiently is an art, not a science. And we're talking here about egos that (with considerable justification) match or exceed those found on Wall Street, Capitol Hill, or Turtle Bay — nobody fights like doctors can fight when they get their dander up.
Bravo, Mr. Attorney General! You've rendered a genuine and indisputable public service to the City of Houston and the State of Texas.
By their front-page composition... ye shall know them.
Miller & lawyer to Libby & lawyer: You incompetent idiots, why didn't you save me from my folly?
Paul Mirengoff at Power Line has this bit as part of a hugely intriguing post mostly about other things that I'm not yet prepared to blog about:
One thing seems clear in all of this — Miller's lawyer Robert Bennett is way out of line as he makes the rounds of the talk shows suggesting that Scooter Libby should have called Judith Miller earlier to personally assure her that she had his permission to testify. For example, he told Wolf Blitzer:
Mr. Libby knew where Judy was. He had her phone number. They knew each other. There was no secret where she was. So I find it amazing that somebody would suggest that Judy would unnecessarily spend 85 days in jail.
Paul's comments thereafter are right on point — read the whole thing — but I want to add one additional wrinkle to them: Bennett's comment ignores the fact that his client's previous position was extremely insulting to both Scooter Libby and his lawyers.
Hypothetically, if I'm representing Scooter Libby, then among my jobs as his counselor is to help him make informed, rational decisions that are in his own personal best interests. I don't let Scooter Libby, for example, make, and then publicly repeat, a broad waiver of his "rights" (really, expectations) as a confidential source unless I'm absolutely certain that Mr. Libby (who's unlikely to be a fool himself, having risen to the position of chief of staff to the Vice President of the United States) has indeed had a full and ample opportunity to consider all the pros and cons, all the upsides and downsides, of that decision. I play devil's advocate with him; I help him explore best- and worst-case scenarios; I help identify all his alternatives, so that he can exercise his informed judgment according to his free will. That's my job as his lawyer.
I also make sure he doesn't make, and then publicly repeat, a broad waiver of his "rights" as a confidential source unless I've also made my own independent determination that he also has the full capacity to make an informed decision and exercise his free will. If I suspect, for example, that he's suffering from temporary insanity, or under the influence of LSD, or mentally retarded, or under hypnosis, or has an improvised explosive device wired to his waist and Karl Rove's holding the detonator — in short, if I have any reason to believe, or even suspect, that my client might be unable to discern and act in his own rational self-interest, then I call a halt to the proceedings and I take appropriate action.
But comes now Judith Miller of the New York-bleeping-Times, who goes prominently on record as saying, in so many words: "Never mind what my source says. I — the journalist, the goddess of the press — have the sole and absolute right to decide whether my source's waiver was or was not 'coerced.'" Because that was and still is Judith Miller's very clear position — not just that there had to be a waiver, and that it had to be voluntary and uncoerced, but that only she could decide whether it was voluntary or coerced.
(Leave aside for the moment that her apparent standard for "coercion" and "voluntariness" is unique, arbitrary, and absolutely contrary to law. The fact that Mr. Libby's waiver may have been motivated, in whole or in part, by a desire to avoid some bad consequence, e.g., being fired, does not invalidate his decision. If that were true, there could never be a valid guilty plea, for instance. If that were true, you could freely breach every contract by claiming, "Oh, well, I was coerced into breaking my promise because I suddenly realized it would be disadvantageous to me to keep it.")
Just on its face, that's an incredibly insulting position to take. That's equivalent to Judith Miller saying: "Scooter Libby is drunk, retarded, or otherwise incapable of making a rational, binding decision on his own, and his lawyer is too damned stupid, unethical, and unprofessional to recognize that and do anything about it. Whatever they say, it doesn't count." In fact, it's hard for me to imagine a more self-righteously patronizing and repugnant position that she could have taken.
And now she blames Libby and his lawyers for not going out of their way to explain to her that she was acting stupidly?
Please. Bring me the world's smallest violin.
UPDATE (Sat Oct 1 @ 1:00pm): In a new post, Paul was kind enough to link this one, and he and John Hinderaker both make some persuasive points about how bizarre it is for Ms. Miller and her lawyers to fault Mr. Libby and his. And in the blogosphere-scoops-MSM fashion they so frequently display, the Power Line guys have somehow obtained, and posted, photocopies of three amazing letters written, respectively, by Scooter Libby to Judith Miller (c/o her lawyer Robert Bennett); by Mr. Libby's lawyer Joseph Tate to Special Prosecutor Patrick Fitzgerald; and by another of Judith Miller's lawyers, Floyd Abrams, back to Mr. Tate. [Update to update, Sun Oct 2 @ 12:45pm: Tom Maguire, in comments below, pointed out that the NYT has also posted the letters (in a single .pdf file that I find more easily readable). Tom's latest post on all this is here.]
The latter two letters basically read like overgrown kindergarteners screaming "Did not! Did too!" at each other. To put it mildly, Mr. Tate and Mr. Abrams can't agree at all on what each said to the other a year ago, and so each is now engaged in some major (and unfortunately all too typical for lawyers) posturing. Letters like these are what lawyers write to each other when there's no judge to hear and sustain each others' objections, so there's no restriction on their inclinations to engage in hissy fits (at way over $600/hour for guys in this league).
But the most amazing lines are Mr. Libby's, at the end of his remarkably gentle, eloquent, personal, and even poetic plea for Judith Miller to come to her senses and accept his waiver:
You went into jail in the summer. It is fall now. You will have stories to cover — Iraqi elections and suicide bombers, biological threats and the Iranian nuclear program. Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work — and life.
Until then, you will remain in my thoughts and prayers.
Anyone with both a working brain and a working heart — that is to say, anyone who hasn't had the former hypertrophied and the latter atrophied by law school — has to have a powerful reaction to lines like these. Mr. Libby comes out of the exchange looking like the only decent human being among them — someone who's not only entirely unafraid that he's going to be prosecuted, but also genuinely respectful and fond of another person (even though she is in a profession that oftentimes makes her his own professional adversary).
Back to the — excuse me for the blunt language, but again, this is the way trial lawyers speak among each other — pissing match between Messrs. Bennett, Tate, and Abrams:
I don't care who said what to whom on the phone a year ago. I have no opinion whose version of events is closest to the truth. It doesn't matter. There was no doubt whatsoever that on its face, the written waiver that Mr. Libby had given was legally adequate and effective to release Judith Miller, Matt Cooper, and every other reporter he'd ever spoken with from any continuing obligation to maintain Mr. Libby's confidentiality as one of their sources. At that point, given that Mr. Libby is an adult and was represented by his own counsel, all of these reporters' second-guessing should have stopped. If Mr. Libby was under pressure to grant a waiver, or to decline to assert his Fifth Amendment rights against self-incrimination — either because of an explicit statement that he'd acted otherwise, he'd be fired by the President, or because of his fear that he'd lose political credibility, or for whatever other reason — then that was between him, his employer, their respective lawyers, and (perhaps) the Special Prosecutor.
I repeat, were I in the position of Mr. Libby's lawyer, the very instant Ms. Miller or her lawyers started sputtering about whether Mr. Libby had been "coerced" or whether his waiver was "voluntary," my immediate and very vehement reaction would have been to say (probably in an uncomfortably loud voice): "Who the bleepedy-bleep do you think you are to try to second-guess the legal advice and representation I've given my client, and his considered decisions on the basis of my confidential counsel to him?!? My client decided to talk to Ms. Miller, sure, but he damned sure didn't give her a veto power over every major decision he'd make for the rest of his life! You have no standing here. Get over yourselves, please!"
Regular readers will know that I'm generally a big fan of Floyd Abrams. But in the end, I'm not a fan of how he or his co-counsel or their client have handled this. They've been sanctimonious, presumptuous, self-righteous, insulting, and, ultimately, silly and stupid. From day one through today, everything they've done has been premised on the notion that Judith Miller is above and beyond the law, acting on another plane than the rest of us mere mortals. And I am 100 percent convinced that Ms. Miller and her own lawyers collectively bear 100 percent of the responsibility for every minute Judith Miller spent in jail — and that every such minute was a total waste, the only result of which has been to substantially delay the doing of justice, whatever that turns out to be, in L'Affair Plame.