BeldarBlog

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?

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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.

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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.

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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.

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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.

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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!

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.

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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.

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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?

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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.

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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.

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."

So my question for whoever was Rich Lowry's source of serious misinformation (which both Mr. Lowry and his fellow NRO blogger Jonah Goldberg, to their credit, have since corrected):

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?

Just askin'.

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.