BeldarBlog

World Series (Central time zone)

Thank you, St. Louis, for a good series. The Cards are a classy team.

But we've been waiting the whole franchise lifetime for this one.

Way to go, 'Stros! The whole City of Houston just exhaled.

Miers' practice experience as measured by volume of trials

The Washington Post, and probably a great many other news outlets as well, in reporting on Harriet Miers' answers to a Senate Judiciary Committee questionaire, had this to say about her litigation practice experience:

With a corporate practice that rarely involved trial work, Miers, 60, said that she had identified eight cases that went through complete trials, of which she was the lead counsel for four.

Of this, my new blogospheric best friend (for reasons shortly to become obvious) John Podheretz writes today on NRO's The Corner something I'm sure he believes sincerely, but about which he's woefully misinformed (emphasis mine):

I've now received about a billion e-mails from lawyers explaining that there's nothing wrong with the fact that Harriet Miers only participated in 16 courtroom cases in a career spanning more than 25 years — that 90 percent of all legal matters are settled, that's what lawyers are supposed to do, and so on. That's all nice, but it's beside the point. Miers's defenders, the brilliant Beldar among them, have praised her choice because her career as a working lawyer will supposedly provide her with unique and valuable experience when it comes to the Court. The clear implication of this line of argument is that she knows the law from the other side of the judge's desk. Sorry, but that won't wash. It's one thing to argue that courtroom experience as a lawyer prepares you for the back-and-forthing on the Court. It's quite another to argue that a career spent settling cases prepares you to rule in matters that have been adjudicated by lower courts. If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever.

Note well: I have certainly taken more different contributors to NR/NRO, including ones with editorial positions, to task over the Miers nomination in my blogging than I ever have over any previous issue, and certainly more of them than at any other institution or publication. My arguments have sometimes been straightforward, but they've also sometimes been laced with snark; and snark always carries a greater chance of giving offense, either intended or un-. Throughout my blogging on the Miers nomination, however, I've maintained a running side-channel of email correspondence with most of those same NROniks, who have — invariably and without exception — been exceedingly gracious, thoughtful, mature, and civil, and often quite funny as well. I've had occasion to apologize privately to one of them for a fairly offensive suggestion that I'd made via email and that he/she persuaded me was unfounded; fortunately that exchange took place before my unfounded suggestion hit the 'net. I've said throughout — and I repeat here to all my readers, including those commenters who've voiced frustration or annoyance at prominent critics of the Miers nomination — that we all have far more in common than separates us, for we wouldn't be having this spat but for the fact that we all deeply, sincerely understand the stakes of each SCOTUS nomination. There are indeed better angels of all of our natures, and especially now, while arguing and disagreeing among one another on matters of great weight and principle, we ought to be solicitous of each others' better angels. JPod's going out of his way in the blurb quoted above to bestow an effusive and not-quite-deserved compliment on me is not him sucking up to me (for he knows I'll continue to state my disagreements with him when and as we have them), but rather a gesture of acknowledgment intended for my better angel, and I appreciate it as such.

I continue to believe, in fact, that very few of the Miers critics are motivated by spite or any other type of ill will. Rather, they've either (a) formed their views based on faulty information, or (b) been insufficiently imaginative to escape their mental ruts as to what sort of nominee may be fit. JPod's comment about Ms. Miers' trial experience is an example of the former, and it's a particularly pithy and well-articulated mistake that I've been predicting in my emails for several days now. Here (slightly edited) is a quote from an email I'd sent to John Fund — whose reporting on October 12th in his WSJ OpinionJournal "Political Diary" column (subscription only, but heavily (within "fair use") excerpted here, for instance) correctly foreshadowed Ms. Miers' questionnaire response (and who deserves due scoop credit for that):

Re number of trials: It would not surprise me if, in fact, she hasn't tried very many jury trials to a verdict, given the nature and stakes of her practice. But Merrill Hartman, who's one of the very best state district judges in Dallas, has been quoted saying that he's had her in his court and she has an effective manner with a jury. I've also been before Merrill Hartman, and he doesn't strike me as an easy grader. A few of other things you probably know, but would be remiss not to point out to the public who doesn't: The overwhelming majority of all civil cases settle, rather than going to trial. The system would collapse otherwise. I don't know what the latest stats are state-wide, but I'm sure it's well over 90%, and probably more like 97% would be my guesstimate. Moreover, everything else being equal, commercial disputes of the sort she's mostly handled (as opposed to, say, personal injury cases) tend to settle even more often, precisely because parties who can afford good counsel are typically themselves fairly sophisticated and can make reasonably precise judgments about what the reasonable settlement value of a case is. And in general, the higher the stakes, the greater pressure the parties feel to settle rather than put everything on the line — which means that the percentage of cases being tried to a verdict is usually lowest of all for the lawyers with the most sophisticated practices.

And to present a fair picture, you have to look at more than just cases tried to a jury verdict. You have to also look at non-jury (a/k/a bench) trials. You have to look at cases won or lost on dispositive motions (a motion for summary judgment or, in the federal system, a motion to dismiss that ends the case without ANY trial being held). You have to look at trial-like proceedings, which would include arbitrations, mediations, mini-trials, and the like. You have to look at cases that settled on the courthouse steps because one side was fully prepared and the other, seeing that, chickened out at the last minute.

Win/loss ratios are also misleading. Experienced courtroom lawyers will tell you that the measure of excellence isn't how many you've won and how many you've lost, but how many you've won that you ought to have lost, and how many you've lost that you ought to have won.

Precisely because it's so hard to get actual trial experience, firms all over the country (not just in Texas, but big firms everywhere) have long been looking for "training dockets" or other means, e.g., through pro bono, to get that trial experience for their lawyers. Some big firms in Texas kept doing the traditional high trial volume work — personal injury cases representing insurance companies — after that work became much less economically attractive (insurance companies stopped being willing to pay elite lawyers' rates). But Ms. Miers' original firm, Locke Purnell, [had the] reputation from at least the mid-1970s (when I was in law school) [of] being pretty committed full-time to big cases, mostly commercial cases. For firms like that, I suspect Ms. Miers' total number of trials and trial-like experiences will be pretty typical, but it's very unlikely to be in the "many dozens" range.

I'm highly confident that Ms. Miers' practice included hundreds of cases for which she was primarily responsible, plus others in which she shared responsibility, in addition to the few that were tried to a conclusion. I'm highly confident that she's taken many depositions, that she's argued many a procedural or substantive motion. I'm sure she's engaged in mediations, and perhaps also arbitrations or other forms of alternative dispute resolution. I strongly suspect she's handled evidentiary hearings short of full-blown trials — for example, for purposes of securing rulings on preliminary injunctions or making fact-findings essential to preliminary procedural matters (e.g., whether a privilege has accidentally been waived or whether a defendant is subject to personal jurisdiction in a particular forum).

In all probability, Ms. Miers has been keeping track of her professional time in increments of one-tenth hour from 1972, when she finished her judicial clerkship, though 2001, when she joined the Administration. I hope and trust that even as I write this and you read it, capable minions are combing through her time diaries and/or her firm's bills to compile a list of such things — numbers and types of cases, hearings, depositions, and so forth. I guarantee you that she could not have secured clients like Microsoft and Disney for her reported cases had she not had those experiences, nor gained the professional respect of her peers, opponents, and judges. And I'm quite certain that if one focuses solely on "eight cases that went through complete trials," one will be badly misled — and perhaps, as a pundit, become badly misleading to others — about the extent and nature of her professional career.

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But now it's time for another of Beldar's Extended Anecdotes About the Good-Ol'-Days When He Was But a Pup™:

Although I had many excellent sources of learning and inspiration as a young lawyer at Houston's Baker Botts in the early 1980s, two in particular stand out in my memory, and I consciously adopted them as my role models even then. One was the head of Baker Botts' trial department when I began working there, Richard B. Miller. The other was a younger partner in the firm's antitrust department, the late John L. Jeffers, Jr. At a superficial level, the two men could not have been more different.

Dick Miller's posture and manner practically screamed his background as a Marine, and his Harvard law degree was a bit of a surprise given his hardscrabble Oklahoma youth and lack of an undergraduate degree from anywhere. Dick had tried dozens and dozens of cases to a jury verdict early in his career, but the number of trials naturally tapered off considerably as his cases got bigger. Yet he was always a "trial lawyer's trial lawyer": No one ever, for a millisecond, thought that Dick was ever anything but incredibly eager to take a case to a jury verdict.

Dick taught me almost everything I know about handling expert witnesses. He taught me that in every jury trial, the jurors are desperately searching from the initial moments for the one personality in the courtroom who will dominate the trial — the person who becomes the frame of reference through which the jurors will process all the evidence — and that a successful trial lawyer needs to be that personality. He needs to find a way to make it so that even when he's sitting silent and motionless and the jurors are listening to the judge or another lawyer speak, the jurors are wondering, "I wonder what Mr. Miller's going to have to say about that?" or "That sure doesn't fit with what Mr. Miller proved through that last witness, I'm just not gonna swallow that." (The problem is, even if you understand this theory, the only way you can make it work is if you find and develop your own best gifts as a lawyer, and I could no more have imitated Dick Miller's particular gifts than I could have won an Olympic gold medal in the pole vault.)

I had the privilege of carrying Dick's briefcase as the third chair lawyer in a products liability automotive crashworthiness case in March 1982; lawyers from all over town, even judges, found an excuse to come sit in the courtroom to watch Dick win it. And yes he was tough and fierce and aggressive, but it was anything but raw aggression; Dick Miller was whip-smart, a master of both personalities and the law, a polished diamond of a lawyer. He was, without question in my mind, the single best courtroom tactician that I've ever seen, and by a healthy margin — and I've seen some very, very good ones.

John Jeffers, by contrast, had a physique more like my own, and was the product of a privileged background as the son of a successful litigation partner at Houston's Vinson & Elkins — elite boarding school, Yale College, then back home for UT-Law. In contrast to Dick Miller's career path, John had always mostly worked on big, extended cases. He'd tried, and won, and held onto through appeals, a huge antitrust case against Volkswagen — who'd been represented by his father. He'd spent something like 18 consecutive months in trial in an FTC proceeding successfully defending Tenneco's acquisition of Monroe Shock. Throughout his entire career, I doubt if he had as many as ten trials, and fewer to a jury; and completely aside from trials, I'm sure he'd handled only a small fraction of the total number of separate matters that Dick Miller had.

I had the privilege of working with John on two huge corporate take-over cases in 1981 and 1982, one of them very drawn out (American General's acquisition of NLT Corp.), and the other lightning-fast (Burlington Northern's acquisition of The El Paso Company). In each of them, John gave me responsibility vastly beyond what I'd earned, and with it the opportunity to observe, and participate at the margins of, the formulation of strategy. John was as low-key as Dick was dominating, and he had the mannerisms of an absent-minded professor. He tended to mumble. In a one-day trial, he'd probably have annoyed the heck out of both judge and jury, but over time in a longer trial — not through personality, but through sustained brilliance and preparation — he'd eventually win them over. John Jeffers taught me more than anyone else about seeing the big picture, grasping what was actually driving the players (even if they didn't know it themselves), finding ways to use my clients' intrinsic advantages to their best potential and minimize their exposure from their weaknesses.

As it happened, Dick Miller and John Jeffers squared off in what's still one of the most famous disputes in American history, Pennzoil Co. v. Texaco Inc. Dick, who'd left Baker Botts to open a litigation boutique, was Texaco's lead counsel in the eventual Houston jury trial. John was Pennzoil's master strategist behind the scenes throughout. Along with his own partner Irv Terrell and the talented and flamboyant (and decidedly un-Bottsian) Joe Jamail, John was among the three lawyers to take significant roles in front of the jury for Pennzoil during trial.

But as much as I wanted to, I didn't work directly with John on the case. I still vividly recall the Sunday morning in January 1984, when Jeffers, calling from New York, had gotten me out of the shower. "Dyer," he said, "I'm up here with [a Baker Botts corporate partner] riding herd on this Pennzoil-Getty deal, and the whole thing's beginning to blow up. Looks like Texaco's trying to steal the deal. Can you get on a plane?"

"Oh, man! Wow! I'm really sorry, John," I said, "and this just kills me to have to say. But I'm picking a jury in federal court here in Houston tomorrow morning on one of my first-chair cases, and there's no way I could get out of it or hand it off." You see, while I'd been pleased to get the chance to work on some huge, mega-cases (mostly mergers and acquisitions litigation), I'd also cultivated my own docket of still significant but much smaller cases that I could use to earn the first-chair jury trial experience I also wanted. And from January 1984 through the end of 1986, I tried nine of those smaller cases first-chair, most of them to juries, plus another couple of second-chair trials, and I also worked on four other M&A matters. But the price I paid for getting that early first-chair experience was that I never could free up a big enough chunk of time to join the Pennzoil team. I was reduced to watching it from a privileged position on the margins, with insider access to one side. I knew all the lawyers involved in the trial, and I spent every hour that I could steal from my own practice watching it.

Pennzoil, of course, won the jury trial, and the subsequent appeals. The American business and legal communities were stunned, and most of them thought it was a huge aberration. But it wasn't. In the big picture, Pennzoil won because of John Jeffers' superior strategy throughout — not only in the jury trial portion of the dispute and the direct appeals from it, but also including proceedings in the Delaware chancery and state supreme courts, the federal trial and appellate courts of New York, an injunction case in Oklahoma, two trips to the U.S. Supreme Court, and ultimately the bankruptcy courts. Miller was the superior tactician — asked immediately after the jury trial who they'd hire themselves if they were in trouble and needed the most effective lawyer they could find, almost all the jurors named Miller. But strategy ultimately beat tactics to the tune of $3 billion of Texaco's cash that became Pennzoil's — and while of course the underlying facts of the case were responsible for its magnitude, the lawyering played a significant part too.

Regular readers will know that I use the vulgar term "candy-assed litigator" to show disdain and the term "trial lawyer" to show respect.  (The latter does not mean "plaintiffs' personal injury lawyers," who may or may not be "real trial lawyers.") Superficially, John Jeffers might have looked to some like a candy-assed litigator — but every lawyer who made that mistake ended up getting his rear end chewed up and handed back to him. I am here to tell you, friends and neighbors, that both John Jeffers and Dick Miller were genuine, high-test, undiluted, and very potent trial lawyers. More than any two other lawyers I've ever met, Dick Miller taught me tactics, and John Jeffers taught me strategy. You've got to know both to be a genuinely successful and well-rounded trial lawyer, and neither Miller nor Jeffers was a slacker at the others' specialty. Having had the chance to learn from them both was a unique opportunity — I was in exactly the right place at the right time — for which I'll always be grateful to both men.

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That's a long anecdote, and you may be wondering why the heck I chose this post to tell it in.

You may have noticed, gentle readers, that with general consistency, I've referred to Ms. Miers in my posts and comments as a "courtroom lawyer," rather than as a "trial lawyer." That's been for two reasons. First, I didn't want people to assume (wrongly) that any significant portion of Ms. Miers' practice has involved representing plaintiffs in personal injury cases, and that's what the press and politicians typically mean when they talk about "the trial lawyers" or "the trial lawyers' bar." But the second reason is that I don't have enough data to say with confidence whether Ms. Miers is, or isn't, a real "trial lawyer" in the sense that I use that term. And you can't tell one way or the other from the questionnaire to which JPod referred. That was the point of my telling the story of John Jeffers. For me to use that term to describe her, I'd have to either have worked with her first-hand under pressure for a while, or else have learned a whole lot more about the cases she's handled, plus spoken with others whose judgments I trust and who'd been involved on a first-hand basis in at least some of those cases.

Everything else being equal, I'd slightly rather have a real trial lawyer on the Court than a mere litigator. I hope she is one, and there are some promising signs; I may or may not be able to draw a confident conclusion about that with more information. But while I think the difference between real trial lawyers and mere litigators is (or ought to be) very important to clients, those differences are probably not very important for purposes of being a Supreme Court Justice. Supreme Court Justices don't try cases, so whether one of them has the secret guts to go to trial, plus the ability to project that to one's opponents, just isn't very relevant on the Supreme Court.

Thus, I can tell you this with great confidence, even without knowing whether Ms. Miers would or would not meet my highly subjective standards for being a "real trial lawyer": JPod's assumption — "If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever" — is badly wrong. His insistence that settled cases are "beside the point" means that he's never understood how litigation actually works, and that's why all those "billions" of lawyers are emailing him! It's the sort of thing that only someone very inexperienced in the American civil justice system could say. I'm delighted for JPod's sake that he apparently is still a virgin, apparently unacquainted with even the basics of civil litigation; may he never be sued or need to sue, may he ever remain such. But there's just no such thing as pure "judicial legal skills" that only are used during trials on the merits. Let's leave aside for now deal lawyers, because they help clients avoid courtrooms by anticipating disputes and resolving them or allocating their risks in advance. The only way that lawyers who handle litigation can "help people and corporations avoid courtrooms" is by being fully prepared to go into courtrooms, and projecting to the other side their readiness and capability to do so.

That includes drafting pleadings and motions and briefs. That includes eliciting testimony through oral depositions and working with expert witnesses. That includes presentation of one's case to opposing counsel and typically now also to a mediator as part of settlement discussions. If the lawyer's any damned good at all, everything that is done in all of the pre-suit and pre-trial phases of a litigation matter is done with an eye toward how it would affect the ultimate trial. JPod denies that "a career spent settling cases prepares you to rule in matters that have been adjudicated by lower courts." I'm sorry, but that's completely wrong; cases don't settle because one side suddenly persuades the other who's right and who's wrong, but because one side causes the other to reevaluate its risk-benefit equation for going to trial. It's the anticipation of results of the sort that play out in that tiny percentage of cases that do go to trial which causes and permits all the rest of the cases (the huge majority) to settle.

In the end, I'm no more troubled that Harriet Miers hasn't tried dozens of cases than I was that John Roberts hadn't tried any, nor even taken a deposition. I've tried dozens, and taken hundreds of depositions, but my record reflects trade-offs, as do each of theirs. Overall they're both well qualified for, and will bring something useful to, the Supreme Court. I'm not and wouldn't. And oddly enough, I doubt that either of my two heroes that I've written about in this post would have been particularly well-suited to the Court either; some people are such good trial lawyers, and so unrelentingly competitive, that they actually would not make very good judges at all.

Is the advice of a White House Counsel likely to be torqued by the SCOTUS brass ring?

In a typically eloquent editorial in today's WSJ headlined "Unwise Counsel," InstaPundit Glenn Reynolds suggests that the Miers nomination has been flawed by both "substantive" and "procedural" mistakes. With respect to the latter, he argues that "[t]he entire affair gives the impression of an administration that is distracted and not up to its usual standards of well-oiled efficiency on political and judicial matters," and he gives some reasonably persuasive examples to support that. But his substantive argument relates to his observation that "[t]he path from the [White House C]ounsel's office to the Supreme Court is not well-trodden, and for good reason." As to this, I'm unpersuaded.

Prof. Reynolds first notes that the fact that Ms. Miers' has been Dubya's lawyer "has already given rise to paranoid theories from the left to the effect that Mr. Bush is trying to protect himself from prosecution growing out of the Plame affair or the Iraq war." Well, yes. But they're exactly that — paranoid theories. If an American President sends to Capitol Hill a proposed new "court-packing" amendment to the Judiciary Act that would instantly expand the Supreme Court to 19 justices on the same day that the House Judiciary Committee is taking up impeachment proceedings, then we might have a problem. But until then, I don't think this or any American President should use the possibility of generating paranoid theories as a good reason to disqualify from consideration a lawyer whom, by definition, the President has found sufficiently competent and trustworthy as to become Counsel to the office (not just the office-holder) of the President of the United States.

The "other half [of] the trouble" cited by Prof. Reynolds I find even less persuasive. I agree with, but am not much troubled by, his premise that "[t]he tendency in recent years to nominate judges from the U.S. Court[s] of Appeals to the Supreme Court has led to a certain amount of politicking and positioning by appellate judges who think they have a shot. That's bad." But I'm mystified by — and to the extent I do understand it, I simply disagree with — his additional assertion that "surely it would be far worse if future White House counsels started letting hopes of a court nomination distort advice they offer the president."

It's ethically incumbent upon every lawyer to be alert for personal interests and motivations that might impair his or her objectivity and judgment, even subconsciously, and therefore diminish the value of his or her advice to the client. And I presume that what Prof. Reynolds is suggesting here is that the prospect of a Supreme Court appointment creates such a personal interest, and that a White House Counsel's motivation for career advancement therefore runs a risk to his or her objectivity and judgment.

But if that creates a potential for conflicting interests — "Is this good for me? Is this good for the Nation and the POTUS? What if it's only good for one and bad for the other?" — it's certainly not a hidden potential conflict. And in general, so long as a potential conflict of interest is either obvious or else disclosed to the client, the client may make a knowing and valid choice to waive it and proceed to rely on that lawyer's advice and representation anyway.

How obvious is this potential conflict, if one there be? It certainly occurs to me, to every other practicing lawyer, and to any client who stops to think about it that in almost every matter we work on, whether we do a really good job on that matter is definitely likely to have a big impact on us in the future. It may well determine whether we get paid this time, and hired again by that and other clients in the future; or promoted within our law firms; or gain in the esteem of various tribunals, opponents, and third parties. It might make us richer; the law of the jungle and most law firms is that "you eat what you kill" (with "kill" being broadly defined, but generally defined to exclude one's own clients as targets). And this is true not only for adversary practice lawyers, but also the quiet ones whose worlds consist of tax codes, offering circulars, wills, or convertible debenture indentures (who, as they'll tell you, are quite often are concerned with considerably larger prey).

And whether any sort of lawyer has done a "really good job" on almost any sort of matter is, in turn, defined in almost every instance by the results we get for our clients. That is to say, to the extent we lawyers have this sort of personal interest, this motivation to shine — and we virtually always do; is anyone shocked to learn that lawyers as a class are ambitious, or that water is wet? — those interests are generally defined by, and therefore tightly aligned with, the interests of our clients!

That's not a problem. That's a good thing, at least in general. Some people, in fact, quite reasonably see personal ambition as a highly desirable quality in their prospective lawyers. They absolutely, positively want the hungriest shark, the most cunning jackal, the most far-sighted eagle, the wisest and most fierce lion of the bar, whom they can find.

I'm simply unable to see how being motivated by desire for the President's recognition and gratitude is likely to ill-serve either the POTUS or the beneficiaries of the POTUS' own fiduciary duties, the American people. I know that Prof. Reynolds has thought and written a great deal about actual and potential conflicts of interest. And maybe, jungle metaphors aside, I'm being insufficiently imaginative. But for me to take this one seriously, someone needs to articulate a hypothetical scenario in which the eligibility of a White House Counsel for a future SCOTUS nomination is likely to actually compromise that Counsel's objectivity and judgment in a way that works to the detriment of the POTUS and/or the Nation. Maybe Prof. Reynolds had such a scenario in mind, but it fell prey to length limitations or an overzealous editor's pen. Or maybe you, gentle readers, can posit one?

K-Lo's fuzzy logic on Miers

I've never met nor spoken with National Review Online editor Kathryn Jean Lopez — K-Lo — and I'm sure she must have the highest ambient email noise of everyone at NRO, which in turn makes it awfully hard to make even her constructive acquaintance that way. I admire her wit (not infrequently self-depricating), her values, and her output. But one of the downsides of blogging generally, and in particular writing a lot of short posts that may not have been the product of careful reflection (even by blogospheric standares of "carefulness") is that one's more inclined to stray off into logical errors.

I think K-Lo fell victim to that a couple of times today with respect to the Miers nomination, on which she's expressed strong and almost uniformly very negative (if sometimes snarky-funny) opinions. I reprint here (slightly revised) my emails to her, which have not yet drawn any response, nor do I think them particularly likely to do so (see above, re ambient email noise):

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Changing one's mind vs. changing the law

K-Lo, you wrote:

President Bush has said that he knows Harriet Miers "well enough to be able to say that she's not going to change; that 20 years from now she'll be the same person with the same philosophy that she has today." But when considering the case presumably more personal and important to her than any individual case before the Supreme Court will be — whether to serve on the Court — she changed her mind over the course of months.

Surely, however, even intelligent non-lawyers can readily understand the difference between the sort of "case" involving one's personal goals or preferences, and the sort of "case" referenced in Article III of the Constitution.

If I am asked about my interest in a new job that will require me to go through an extremely unpleasant and intrusive application process (ending my personal privacy, subjecting me to ridicule from the ill-informed and the spiteful), I might quite reasonably conclude that the benefits anticipated don't justify the costs — a personal balancing that leads me to turn the job down. However, if someone whom I trust and admire on a personal basis, as part of his own very important job, asks me to reassess the benefits of my taking the job — and in particular, to re-weigh the public good to be served, as that trusted person views the public good — then I might certainly come to a different conclusion. As it happens, the President hasn't asked me, nor told me he thinks the Nation would be better off with me on the Supreme Court. But he has asked that of, and told that to, Harriet Miers. Are you suggesting that a direct request from, and the considered opinion of, the President of the United States are entitled to no weight?

The process of making even the most profound personal decisions is intrinsically different than the process of judging a "case" or "controversy" within the meaning of Article III of the Constitution.  Equating these two processes is very misleading. And many of us — I presume you, too — think that the future of our Nation, and the integrity of its Constitution and rule of law, are indeed very much more important than our individual lives and fortunes.

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Ethics: Not sufficient, but necessary

K-Lo, you wrote:

And do you really expect people to be convinced she's a SCOTUS fit because: "Throughout her career in local, state and Federal governments, Harriet Miers has held herself to the highest ethical standards"?

But you surely understand the difference between the necessary and the sufficient. Do not fault the White House for assuring the public that Ms. Miers is and has always been ethical. Making that assurance is particularly appropriate when a nominee has been accused of being a "crony," as this one has, and by you. "Crony" has connotations that include corruption. That this nominee is not corrupt — that she's no Abe Fortas — is a point worth making, and perhaps a qualification that you would agree ought to be necessary for any Supreme Court Justice.

Nor suggest, please, that by making that assurance, the White House has argued that being ethical is sufficient all by itself. If it were, it would have been a much shorter set of talking points.

Words of one syllable about the Conference Call Cause Célèbre

In tomorrow's WSJ (hat-tip Orin Kerr at the VC), John Fund has this breathless report (boldface mine):

What followed [in a conference call about the Miers nomination on October 3rd], according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"

"Absolutely," said Judge Kinkeade.

"I agree with that," said Justice Hecht. "I concur."

Mr. Fund is far, far too good a reporter, however, to fail to include a paragraph somewhere in his story (the twelfth one) that includes the blindingly obvious observation about what his factual reporting does and does not reveal (boldface, again, mine):

The benign interpretation of the comments is that the two judges were speaking on behalf of themselves, not Ms. Miers or the White House, and they were therefore offering a prediction, not an assurance, about how she would come down on Roe v. Wade. But the people I interviewed who were on the call took the comments as an assurance, and at least one based his support for Ms. Miers on them.

Words of one syllable about that last sentence: If they took it that way, then each of them made a guess too. Duh.

It's unusual, but not unethical or improper, for sitting judges to make guesses about how someone else who might be confirmed to a different judgeship might possibly vote if a particular matter possibly comes up in the future. If these particular judges know Ms. Miers well, then their guesses might even graduate from the category of WAGs\^*/ to the higher status of educated guesses. Neither man claims to have based his (at-best educated) guess on anything in particular that Ms. Miers has promised, or written, or said. Indeed, Justice Hecht has repeatedly denied having heard Ms. Miers make any promises or assertions or statements about how she might rule on abortion issues if she's confirmed, or even what she thinks of Roe as a precedent.

But except for the purpose of playing guessing games, this is basically meaningless information — even if it's written up by someone as diligent and articulate and well-connected as Mr. Fund. Even if it's in the Wall Street Journal. Even on a Monday.

I wish someone had asked one of these judges this (compound) question: "Hey, Judge, would documentary or testimonial evidence confirming your statements and that of the other judge on this conference call — even a videotape! — have been admissible under any theory of evidence in any court in the United States to prove anything whatsoever about Ms. Mier's actual intentions, or to prove what she's actually going to do?" 'Cause those questions could also have been answered in one word of one syllable, as to which no one would have to guess at all: 

"Nope."

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\*/WAGs = "wild-ass guesses," a trial lawyer term of art used as well in some other professions, I'm told.

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.

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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!

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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).

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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.

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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.