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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.

Posted by Beldar at 04:29 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Miers' 1995 letter to Bush on Texas attorney fees ought to comfort conservatives and sent a trackback ping are listed here:


(1) Andrew made the following comment | Oct 16, 2005 7:04:14 PM | Permalink

Hi Beldar:

Thanks for taking a look at my confirmthem post, and for responding to it. I think it's important to focus on this question: was Miers asserting that HB2987 violated the Texas Constitution?

It seems to me that she was asserting that. She cited "the judicial department's power under the constitution to regulate the practice of law," and she also cited the Texas Supreme Court's "inherent power to maintain appropriate standards of conduct." So, isn't it pretty clear that she was asserting that HB2987 violated the Texas Constitution?

(2) Beldar made the following comment | Oct 16, 2005 9:00:09 PM | Permalink

Andrew, if so, it only in an offhand way. But I don't think she even intended that much. Before concluding that she was "asserting that HB2987 violated the Texas Constitution," I'd expect to see words like "violated the Texas Constitution," and a citation to a section of the Texas Constitution supposedly being violated, and the word "unconstitutional." To the extent the Texas Constitution was involved at all, it was incidental. And classic separation of powers doctrine isn't involved topside or bottom.

She's not saying that the Legislature can't do what this bill would do. She's saying it would be, quote, "bad public policy, if allowed."

You're focusing on only a couple of almost throw-away phrases. She certainly doesn't make an elaborate constitutional argument of any sort, and certainly not a separation of powers argument. Had she tried, there's actually no good constitutional support for it. The TexSupCt's traditional regulation of the practice of law (in conjunction with the State Bar of Texas and the State Board of Bar Examiners) is a creation of statute rather than constitution, and thus a delegated power as to which no serious constitutional argument could be made. Skim the judicial article of the Texas Constitution, and you'll see nothing there about regulating the practice of law. To the extent that the Supreme Court does have a role under the Texas Constitution in regulating lawyers, it would be through the inherent, implied powers courts have to regulate who they permit to practice before them (which is only a subset of the practice of law, of course), and that's a "constitutional" power only in the sense that the judicial branch is constitutionally created for the purpose of providing courts. By very sharp contrast, there's an elaborate system of statutes by which the Legislature has authorized and enabled the SBoT, the Texas Supreme Court, the State Board of Bar Examiners, and most recently the Texas Board of Legal Specilization to regulate the practice of law in the public interest. The only way you can turn this into a state constitutional issue would be through the kind of judicial hijacking that Bill Kilgarlin did in Lucas, turning the "open courts" provision of Article I, section 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law") into a prohibition on tort reform.

The argument she did stress was that if the Legislature started poking around with this, it might inferentially limit the Texas Supreme Court's traditional regulatory powers to punish unethical conduct. But that's not a constitutional separation of powers argument, nor a constitutional argument of any sort. And the Legislature has always had a coordinate role of its own: barratry, for instance, is a crime; so is unauthorized practice of law.

And I'm just telling you as someone who lived here at the time, there's no way this would have been mistaken by the people cc'd on this letter as being anything other than an argument about how much "Money Talks" and whether the plaintiffs' PI lawyers could continue to buy influence in the state. It's the elephant in the room, guys -- you don't need to go looking for constitutional fleas and turning them into tigers.

Focus on the rest of the letter, including where all the passion is. This wasn't primarily a legal argument, certainly not a constitutional argument, at its core. It was a policy argument, and one having less to do with the Texas Supreme Court than with her concern that perceptions of our entire civil justice system would return to where they were in the days of the "60 Minutes" Court. This letter was mostly a response to the plaintiffs' personal injury bar's attempted preemptive strike on what it feared the newly conservative TexSupCt might do.

Her letter never says "separation of powers." Fein just jumped to that conclusion, and I'm here to tell ya, it's wrong. Not a little wrong. Completely wrong. That's not what this is about. I'm not imputing bad motives to him, I'm just saying he jumped to a wrong conclusion and ran off down this rabbit trail because he didn't understand that the context explains that she meant exactly what she said — balance of power, meaning political influence-type power, not constitutional separation of powers.

(3) Beldar made the following comment | Oct 16, 2005 9:35:37 PM | Permalink

By the way, if Fein really said to the WaPo reporter that this was an instance of "a legislature — wisely or not — tr[ying] to foster free enterprise" — well, that shows how utterly he misunderstood this whole subject from top to bottom. I'm hoping he was badly misquoted, because I simply cannot imagine a former Reagan Administration lawyer going out on a limb to promote "free enterprise" if that means "guaranteeing a continuing contingent fee revenue stream, unhampered by tort reform, into the pockets of plaintiffs' personal injury lawyers" — and there is absolutely no question that that is what this statute was all about.

(4) Beldar made the following comment | Oct 16, 2005 10:23:22 PM | Permalink

An eagle-eyed reader (one whom I know remembers all these events very well, having had a keen interest and a unique view of them at the time) emailed to remind me that actually, Gov. Clements appointed Thomas R. Phillips directly into the Chief Justice slot, from which John Hill (who's also hitting the trail for Ms. Miers this week, I'm told) had just retired. This reader also reminded me that some of the names that have since become nationally familiar actually first took their TexSupCt seats via contested elections rather than appointments to seats that had become vacant. Finally, by complimenting Chief Justice Phillips' role in the transformation, I did not mean to slight the roles of many others, in both state-wide offices and in judgeships at the levels of the intermediate appellate courts, county courts, and state district courts, some of whose efforts began even earlier, others of whom Chief Justice Phillips helped inspire, but without all of whose assistance and cooperation he alone could have accomplished very little. And they also transformed their own courts as well! I appreciate these corrections, and I've changed the text of the original post accordingly.

(5) Michael B made the following comment | Oct 17, 2005 1:58:59 AM | Permalink

After reading this I do agree with the title of the post, though to be more inclusive and descriptively accurate I'd change it to centrist/conservatives. This is the first thing I've seen which serves as a window into her judicial, legislative and general social/political gravity and it does assuage some basic concerns. When Miers's interests are contrasted with the Texas PI bar and Kilgarlin (reflecting monied interests corrosive of broader public goods and also reflecting the judicial usurpation of a reasonable legislative initiative) centrist/conservatives can take at least some measure of comfort.

This does not however help to substantiate how she might handle more complex constitutional problems**, because in the end this does not reflect anything terribly complicated. Nonetheless it does reflect a judicious approach, also reflecting an awareness of and a sufficient passion to defend a fundamental tenet in the balance of powers issue.

Too much can be made of this. (How big a window into her outlook is reflected herein? I'd say it's marginal or difficult to assess.) But too little can be made of it as well, it makes her at least something less of a cipher.

(To be clear, I'm also sensitive to the fact that there are responsible and ethical PI attorneys and their work has helped to make comsumer products and services safer for the public at large. Obviously, the general interest here is to find a legislative mechanism to responsibly deal with a basic tort reform problem, not to irresponsibly curtail awards in a cynical, caveat emptor manner. Assumming that is what has been accomplished, albeit as an ongoing process, then one can only applaud the results, in general terms.)

** Also, only indirectly related, I remain unpersuaded of your near dismissiveness of the complexities of ConLaw concerns in the context of our highly partisan, divisive and ideological era for a SCOTUS justice. For example, at Volokh, noting typical law school curricula require very little ConLaw does not support your argument. Law school curricula presumably requires zero hours devoted to the legal systems of pre-Islamic, multicultural Sassanid Persia; that doesn't mean the subject matter is simple. Most lawyers don't become constitutional lawyers in any predominant sense and that is surely one reason why ConLaw receives minimal treatment.

The fundamental, founding, classical liberal principles are relatively easy to grasp, yes. A sword may be easy to grasp and wield as well, until one is required to do so in an actual battle. It's the convictions carried forward and suitably articulated in a fight contra other legal propositions, theories and initiatives which will matter; also to provide leadership in this area. Those are the stakes.

(6) Andrew made the following comment | Oct 17, 2005 6:55:30 AM | Permalink

I appreciate the time you've taken to clarify this issue, Beldar. It seemed to me when I first read the letter from Miers to Bush that she was making a constitutional argument. But I gather you have a different view.

When then-Governor Bush vetoed the legislation, did he send a veto message to the legislature? Any chance we could get hold of the veto message to see if he relied on the constitutional argument that Ms. Miers seemed to be making?

(7) My Boaz's Ruth made the following comment | Oct 17, 2005 11:33:59 AM | Permalink

Governor Briscoe! I didn't know he was governor when we actually lived in Texas. (We moved there in September 1977. But I was only 4 years old so I can be forgiven for not knowing politics of the time)

But I remember growing up with a fun song called "Freeze a Yankee" that I can't find anymore :(

"Freeze a yankee, drive seventy-five and freeze them alive. Governor Briscoe promised us that if any man Yankee raised a fuss, he'd turn off the gas, turn off the oil, and let them all freeze and boil."

(8) My Boaz's Ruth made the following comment | Oct 17, 2005 12:26:50 PM | Permalink

Nevermind! I found the lyrics:
I posted them over at my blog

(9) Beldar made the following comment | Oct 17, 2005 10:52:34 PM | Permalink

Andrew, I don't know the answer to your question about whether there was a "veto message," nor a handy way at the moment to do any further online research on that question, or the related one of whether he made any contemporaneous comments to the press, without spending some bucks. I'd be very surprised if there were a message from Dubya saying that HB2987 was being vetoed because he believed it to be unconstitutional. But that's just a guess.

(10) Andrew made the following comment | Oct 18, 2005 11:56:20 AM | Permalink

Beldar, Fein has another op/ed today about the letter Miers wrote to Bush. See http://www.washtimes.com/commentary/20051017-092323-3416r.htm

Also, the Governor’s veto message is available here. http://www.lrl.state.tx.us/scanned/vetoes/74/hb2987.pdf

(11) Michael B made the following comment | Oct 19, 2005 9:42:17 AM | Permalink

The screw turns.

With this latest piece by Bruce Fein, offered above, it's clear he is in fact concerned with a separation of powers issue, not a balance of powers concern. Aspects of Fein's bona fides are also clarified at the end of the article:

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has published an "Advice & Consent Handbook" on Supreme Court appointments and the judicial filibuster.

So while Fein is not a Texas attorney, he is a constitutional lawyer and is arguing from a basis in bedrock constitutional concerns, that of separation of powers. It's a forceful argument. The only detractions from Fein's argument are the specifics of Texas's application and the interests/prejudices resulting from the tort and tort reform concern. Imo Fein's argument carries the day on the basis of the Lockean principle (and essentially the U.S. Constitutional principle) of separation of powers.

Clearly, the lens this is being viewed through here is that of tort law, tort reform and the legislative and judicial and executive branch interests in tort principles. It also has to be acknowledged Miers was not acting as a judge in any formal sense. Nonetheless she was acting as an advocate, essentially forwarding herself as a disinterested advocate for her view of a basic balance of powers issue, together with an acknowledged interest in tort reform and protecting Texas's judicial branch from legislative encroachment. Fein makes the case, rather convincingly, that Miers in point of fact was arguing against herself. I.e., that Miers was permitting her interests and leanings vis-a-vis tort reform and the newly Republican Texas Supreme Court to cloud her sense of what was more fundamentally at issue, the separation of powers concern.

In reversing my opinion above, conservatives with a primary interest in business and corporate empowerment may be put at ease (and even enthused) about Miers's role in this situation, but centrist/conservatives, or classical liberals, with a more fundamental interest in the separation of powers issue justifiably raised by Fein, are not likely to be encouraged, to the contrary, Miers exhibits muddled and unclarified constitutional thinking in this instance; her reasoning in this instance is not encouraging. This is not to argue against tort reform per se, only to place the need for reform, in this instance, back in the Texas legislature, where Fein (rightly imo) argues it belongs.

There's also the fact Miers was, or had very recently been, working for a pro-business PAC, the "Texas Civil Justice League" whose open lobbying interests are in limiting punitive damage rewards. Fein refers to an article by Lorraine Woellert entitled Forget Roe and the Framers, Let's Talk Business. For those who think this is a simple conservative vs. liberal interest, they're wrong. At the end of Woellert's article, the following excerpt, referring to a SCOTUS punitive damages decision:

"O'Connor was in the majority again in 2003 when the court reiterated its impatience with big damage awards in State Farm Mutual Automobile Insurance Co. v. Campbell . Among the dissenters were, yes, Scalia and Thomas, who could find no constitutional right to freedom from runaway jury awards.")

Miers should be decisively rejected by principled centrist/conservatives.

(12) Michael B made the following comment | Oct 19, 2005 9:50:32 AM | Permalink

Also, this WSJ editorial by Judge Bork, Slouching Towards Miers, speaks from similar principled concerns.

(13) The Monk made the following comment | Oct 19, 2005 5:16:57 PM | Permalink

Nice post, especially the history of the Texas court system.

One thing you did not mention, though, is that former Chief Justice Hill (1984-87) is Phillips' immediate predecessor and former Chief Justice Greenhill preceded Hill with a small gap between the two (1972-82). Both were Chief Justices in the jackpot jury, tort-bar owned era of Texas jurisprudence and they're two of the jurists who stood with Miers in Monday's press rollout #3.

(14) d2e made the following comment | Oct 19, 2005 8:20:37 PM | Permalink

The "history of the Texas court system"? How sad. Would you even have this discussion with any other SC pick? However, as Beldar pointed out earlier, the President has the constitutional right to appoint whoever he wants to the SC. He decided to reward a brown-nosing, syncophant crony for her loyalty by appointing her to the SC. We have the right (constitutional or other wise) to say "up yours"

(15) Beldar made the following comment | Oct 19, 2005 10:43:16 PM | Permalink

Michael B, thanks for the lengthy and erudite post. But with due respect, you and Mr. Fein are both so far off base that you can't even see the ballpark any more. Both Mr. Fein's original comments to the WaPo and then his WaTimes op-ed completely manufacture, from whole cloth, the supposed constitutional separation of powers issue and impose it on facts where it does not belong. The "muddled and unclarified" thinking, sir, is yours and Mr. Fein's; that's the most favorable construction for peddling a misleading impression to the public of what the issues were. (Better angels, Beldar, better angels ....)

Monk, you're right about the sequence. Chief Justice Greenhill, for whose former partners I clerked at Austin's Graves Dougherty firm (a mostly defense firm), and with whom I worked with directly when he joined Baker Botts' Austin office after leaving the bench, was a conservative Democrat whose tenure long pre-dated the rise of the Republican Party in modern Texas politics. He was universally admired by lawyers of all political persuasions and on both sides of the personal injury trial bar, and I've never heard anyone suggest that he was under the sway of the plaintiffs' PI bar by any stretch of the imagination. Chief Justice Hill was indeed much more of a populist as a politician, including his stint as Texas Attorney General; I believe that he had a very successful plaintiffs' personal injury practice before entering politics, and as a jurist he sometimes did indeed vote with the hard left/pro-plaintiff wing of the Court. But other times he didn't. And to his enduring credit, after the "60 Minutes" black eye, he resigned in large measure to campaign for reform of the system by which Texas picks its judges. I suspect that he's grown more conservative over the years, but his inclusion in the group speaking for Ms. Miers' nomination is indeed a mark of true bipartisanship.

d2e, I'm not sure whether you're intending to insult merely Ms. Miers and the President, or the entire State of Texas. But "up yours," while constitutionally protected speech elsewhere, is very close to the edge of what I arbitrarily deem to be civil discussion for this blog. Chill out, dude, or at least mind your manners, please.

(16) Michael B made the following comment | Oct 20, 2005 12:13:56 AM | Permalink

Beldar, hmmmmm. Well, I'm unable to say, at least not with much conviction, that I've never been wrong before (he whimsically deadpans). Essentially what you're indicating then is that Fein, perhaps motivated against Miers for some reason, uses a separation of powers template to forward an argument against the Texas Supremes' empowerment to limit personal injury claims. Ok, so from that angle I was lengthy, erudite and - wrong. Seems that puts me back at my original position then.

(17) Beldar made the following comment | Oct 20, 2005 2:37:33 AM | Permalink

MichaelB, I appreciate your good humor. I'm trying hard to keep mine. I'm just barely succeeding, maybe.

The Texas Supreme Court creates, limits, expands, refines, clarifies, experiments in, and otherwise deals with personal injury claims on a regular basis. Such claims are, in general, creatures of state common law. The Texas Supreme Court, subject to being preempted or corrected or overriden by the Legislature, tinkers with and adjusts that common law way more often than I eat seafood, and I like seafood and live on the Gulf Coast where it's cheap and easy to find.

I'm not going to impute any motivation to Mr. Fein, whom I don't know. I emailed him with this post when I first put it up, but he made no reply. I could draw other inferences from that, but I will draw none except that, perhaps, my email got stuck in a spam filter and never reached him.

But for whatever reasons, he's trying to create a constitutional dimension to this issue, a separation of powers issue, that doesn't exist. He's making stuff up that Ms. Miers didn't say, and then he's arguing that that stuff is wrong, and therefore she ought not be confirmed.

I don't know if that's mean, but it's wrong.

Again, I ask you or anyone born after 1975: Can you imagine a former Reagan administration lawyer arguing in favor of unlimited avarice on the part of plaintiffs' personal injury lawyers? Arguing against the power of the body that regularly and historically has regulated lawyer ethics being stripped of its powers to continue that?

I can't. But there he is, doing just that. It completely perplexes me. But not enough to make me lose sight of the fact that he's making up words that Harriet Miers didn't say and arguments she didn't make, with no other apparent justification than so he can take shots at the propriety of those words and arguments.

(18) Michael B made the following comment | Oct 20, 2005 11:22:39 AM | Permalink

Beldarseparation of powers reasoning, while I knew it had potential pitfalls, nonetheless did make some sense and it's one I happen to be sensitive to, from a first principles, Lockean perspective.

Btw, I emailed Lorraine Woellert (who seems to write with something of an agenda) to ask when Miers resigned, in 1995, from her advocacy position with the "Texas Civil Justice League" PAC, since June 11 was the date she sent the memo to then-Gov. Bush. Woellert never did reply.

And congrats on the 'Stros going to the Series. The Sox and the 'Stros, with Clemens, should be a great one. I'm predicting seven games, though am taking no position - lengthy, erudite or otherwise - on the outcome.

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