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Tuesday, October 04, 2005

Correcting Rich Lowry's "pro-Bush legal type" source on Harriet Miers' credentials

Writing yesterday on NRO's The Corner blog in a short post entitled "Deplorable," NRO editor Rich Lowry quoted a "a very pro-Bush legal type" in part as follows:

Says Miers was with an undistinguished law firm; never practiced constitutional law; never argued any big cases; never was on law review; has never written on any of the important legal issues. Says she's not even second rate, but is third rate.

I emailed Mr. Lowry with my reactions, and he's usually been very generous and fair in responding to my emails and posts as time permits. For whatever reasons, though, I haven't yet gotten either a response or a correction out of him on this, so I'm posting here in more detail to point out that his "very pro-Bush legal type" doesn't know squat. He's just dead wrong on some of his facts, and very confused on others. And by uncritically republishing this correspondent's comments, Mr. Lowry has done both Ms. Miers and The Corner's readers a serious disservice.

I also count myself as a "very pro-Bush legal type," but unlike Mr. Lowry's source, I'm not anonymous, and my own pedigree and credentials as a knowledgeable Texas practitioner are available for anyone to assess. If his source wants to go public, I'd be delighted to debate him on any of the points I'm about to make, because they're all based on my personal knowledge, and I'm quite confident Mr. Lowry's source must either lack that knowledge or is just being very loose with the truth.

Locke Liddell & Sapp is the product of a merger between two old and very well-regarded firms — Locke Purnell in Dallas and Liddell Sapp in Houston. It was a merger of equals, and one that Harriet Miers presided over as managing partner of Locke Purnell and co-managing partner of the merged firms. Calling the resulting firm, or either of its predecessors, "undistinguished" is absolutely outrageous and contrary to fact. It's the kind of thing that only an absolute snob — someone who takes the position that no Texas firm could ever be anything but undistinguished — would say. And like the lawyers from Locke Purnell and Liddell Sapp, I've been regularly kicking such snobs' butts in court for the last 25 years — and not just in Texas courts, either.

Do you honestly think Microsoft or Disney would hire a "third-rate" lawyer from an "undistinguished firm"? Those are a couple of her personal clients, but I can tell you from personal experience — having handled and sometimes tried cases with and against Locke Purnell's and Liddell Sapp's lawyers for 25 years — that their respective client lists, and now that of the combined firm, are as blue-chip as any law firm in Texas can claim. I'm talking the top Texas banks and businesses; major Texas newspapers; national insurance companies; hospitals and universities; multinational corporations with business or litigation in Texas — top-tier clients that any firm anywhere would be delighted to have. Those sorts of clients do indeed have big cases.

I vividly recall, for example, a case I handled in the early 1990s in which I jointly represented three multi-billion dollar clients — The Prudential Insurance Company of America, New England Mutual Life Insurance Company, and the General Electric Pension Trust — in "lender liability" litigation arising out of a $125 million mortgage on a downtown Houston office building. A conflict arose among my clients, as a result of which GEPT had to seek new counsel. GEPT could have hired anyone they wanted, anywhere in the state, or in the country for that matter. I was not at all surprised, however, and very pleased, when GEPT, on the recommendation of its regular Wall Street counsel, hired one of Harriet Miers' partners from Locke Purnell, who then did a splendid job on GEPT's behalf. (Another co-defendant, an East Coast securities firm, ended up being tagged for more than $60 million in the eventual trial of the case, but the Locke Purnell lawyer and I both got our clients out of the case well before that on very favorable terms.)

As for "never practiced constitutional law": Well, duh. How many lawyers in the United States practice nothing but constitutional law? Maybe 0.001 percent, if that. Not even John Roberts — whose private practice was almost all in the Supreme Court, in appeals — practiced constitutional law on a full-time basis. Very few lawyers practice constitutional law regularly, but constitutional issues arise in all sorts of contexts, including very important and high-stakes business litigation (e.g., defamation lawsuits that raise First Amendment issues) of the sort that Ms. Miers and her firm have handled. Only someone poorly informed about civil litigation in the American legal system would think that only constitutional law specialists are qualified to be on the Supreme Court. Any of the current Justices would laugh in your face if you made such a suggestion; so would any federal circuit or district judge; so would any experienced practitioner. (Larry Tribe might buy into that pitch, but I doubt he's Mr. Lowry's source.)

"Was never on law review"? Well, that's either an outright lie, or else (more likely) reveals exactly how ill-informed Mr.  Lowry's correspondent was. Ms. Miers was an articles editor on the Southwestern Law Journal. Any Texas lawyer would know that the Southwestern Law Journal is the oldest and by far most prestigious law review at SMU Law School. It was and still is a highly regarded journal in Texas, regularly cited and relied upon by Texas trial and appellate courts. Indeed, it did, and still does, a better job of covering state law issues comprehensively than the state's top legal journal, the Texas Law Review (which instead maintains a national focus). And anyone with law review experience from anywhere would know that being an editor of any sort is a significant credential, and that most law reviews reserve their articles editor slots for their brightest candidates because those particular editors are dealing daily with law professors whose articles are being considered, edited, and published as they scramble for tenure.

As for her law school in general: No, it's not now considered to be a national powerhouse. But when I was heavily involved in recruiting new lawyers for both Houston's Baker Botts and for the Houston office of New York-based Weil, Gotshal & Manges in the 1980s, we considered SMU Law School to be a solid regional law school, particularly strong in business and corporate law. Its talent pool wasn't as deep, but its top graduates — like its law review editors — were every bit as qualified as the students we recruited from Texas Law School or from the top out-of-state schools. Dallas firms generally had an even higher regard for SMU, with many of the best lawyers from Dallas firms serving as adjunct faculty members there; some students who'd been accepted at Texas Law School, or even at out-of-state top-tier law schools, chose instead to go to SMU for its local connections if they intended to stay in Dallas. Some of SMU's competitors have probably caught up with it since then, but when Ms. Miers was a student there, SMU Law School was widely regarded as the second-best law school in Texas.

No, Ms. Miers didn't clerk for a Supreme Court Justice, nor even a federal circuit judge. But many new lawyers who intend to go into a litigation practice actually prefer clerking for a federal district judge at the trial court level because the experience they get, and the contacts they make, through such clerkships are more likely to be directly relevant to their intended practice. Only a tiny percentage of law school graduates have the opportunity to clerk for a federal judge at any level. Ms. Miers' clerkship for the Hon. Joe E. Estes, a federal district judge in the Northern District of Texas, Dallas Division — where she intended to practice — is nothing to sneeze at.

As for the last bit quoted above: Practicing lawyers do indeed write on "important legal issues." To our clients, in fact, the trial and appellate briefs we file on their behalf in court are written on the most important issues in the world. Our focus tends, though, to be practical and specific: Since lives and fortunes (not just tenure decisions) are directly at stake, both the judges and our clients tend to prefer that. Only an effete snob would suggest that only "law review" writing counts, but it's fair to say that like 99.9 percent of other practicing lawyers, Ms. Miers hasn't done much law review writing since she left school. (Neither, as I understand it, had John Roberts.)

In sum, if there's anything "Deplorable" about Mr. Lowry's correspondent's comments, it's their lack of accuracy, rather than anything that genuinely reflects badly on Harriet Miers. As I wrote yesterday, Ms. Miers is, by any objective standards, among the most successful lawyers in private practice in America. Anyone trying to paint her as if she's some night school graduate working out of a low-rent shopping mall is either badly informed, or has some hidden agenda.

Posted by Beldar at 05:54 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Correcting Rich Lowry's "pro-Bush legal type" source on Harriet Miers' credentials and sent a trackback ping are listed here:

» Harriet Miers & The East Coast Snobs from Sue Bob's Diary

Tracked on Oct 4, 2005 7:57:38 AM

» Miers: missing the forest for the trees from ThoughtsOnline

Tracked on Oct 4, 2005 10:13:13 AM

» I trust the President from Pull On Superman's Cape

Tracked on Oct 4, 2005 11:20:19 AM

» Missing the Point from Another Rovian Conspiracy - St Wendeler

Tracked on Oct 4, 2005 3:55:27 PM

» Thoughts on the Miers Nomination from Foolippic

Tracked on Oct 5, 2005 9:20:57 AM

» Thoughts on the Miers Nomination from Foolippic

Tracked on Oct 13, 2005 12:00:08 PM


(1) Glenn made the following comment | Oct 4, 2005 6:22:07 AM | Permalink


Solid, factual rebuttal to what for all the world appears to be the same sort of hyper-emotional venting I have seen throughout the right side of the blogosphere. No self-critical analysis, no "wait and see", nothing that one would expect from reasonable people who happen to disagree with the prez.

I am not of the opinion that we should accept the president's picks on faith - that isn't fair to the people who elected him, or to the country at large. On the other hand, first-hand knowledge trumps a resume every time. All the critics are people who are comparing resumes - they don't know Luttig, McConnell or Owens personally or professionally - they just trust a resume more than the president's reasoned judgment.

I think that is likely to be a "misunderestimation" on thier part.

Nice piece, by the way.

(2) MaxedOutMama made the following comment | Oct 4, 2005 7:10:34 AM | Permalink

Beldar, I am really enjoying this series of posts. Thank you so much for the perspective and information.

You are really doing a service by presenting a little reason to combat the emotion.

(3) Dan S made the following comment | Oct 4, 2005 8:13:47 AM | Permalink

I am not prone to taking W on faith any more. But when I reacted with "who?" to the news of this pick, I did decide to go gather information before forming an opinion. The first place I came was here, since I figured you'd weigh in on a Texas lawyer. I am certainly happy I did.

I can't say I am excited about this appointment, I would prefer one of the bandied-about conservative big names. BUT, I do feel the extreme negative reaction is unbalanced. You seem to be the only one putting forth facts, rather than pure opinion.

At this point I suspect she could become a solid justice (though probably not stellar). The court doesn't need nine stellar justices; it needs a few, to toss in the brilliance, and the rest need to be serious, considered men and women who will ground that brilliance. I think she may fit that role.

I too like the "practical lawyer" angle. Too much theory is what has led to some of the most out-of-touch decisions in recent years. Give me more who will ask the silly "but will it work?" question and I'll be happy.

Keep up the great work, Beldar.

(4) JulieSA made the following comment | Oct 4, 2005 9:03:01 AM | Permalink

I have all the respect in the world for Rich Lowry, but last week he admitted that he was surprised to learn that Houston is the 4th largest US city. That boy needs to get out here to Flyover Country more often.

So the more I think about it, the more pleased I am that Ms Miers is not a creature of the East Coast intellectual "elite", a class that President Bush seems to disdain, despite his two Ivy League degrees.

You have pointed out that she has experience in actually running the business of her lawfirms. It would be a better country if people who wanted to work in government or academia would get some experience in private enterprise first.

Thank you for these calm, informative posts, Beldar.

(5) CatoRenasci made the following comment | Oct 4, 2005 9:17:08 AM | Permalink

A thoughtful post which should receive wide circulation.

I remain unconvinced that Miers is anything like a "most qualified" choice. As someone put it, can you imagine any other conservative president nominating John Roberts? Sure you can. But, aside from her relationship with Bush, can you imagine any other conservative president comparing her with the other candidates and nominating her? No. She's good to be sure, even very good, but not from what I know. I guess we'll have to wait and see.

Glad you clarified the law review point, as I have seen several articles saying she was not on law review. Given that most flagship law reviews (though not mine) are pure grade driven, failure to be on law review shows at least that a student is not in the top 5-10% of a class. At a first tier school -- your comment about depth -- that isn't such a big deal, at a third tier school it is.

There is surely a certain amount of elite law school snobbery involved in the reaction to Miers, I'm guilty of it myself: I really want to know a nominee has demonstrated intellectual and academic credentials to make the Supremes. Graduation from, and law review editorship at, a top tier law school (which includes Texas) is one way of demonstrating that. A record of scholarly writing is another. So, too, can a record in practice. At this point we haven't seen any of that. Without more, I'm from Missouri on this nominee.

BTW, I didn't know you did time at WEGOMA in the '70s -- so did I in New York, but I did make several trips to the Houston office. Very nice people in that group.

(6) Mike Kennedy made the following comment | Oct 4, 2005 9:28:26 AM | Permalink

Your last few posts really remind me of Senator Borah arguing that mediocre lawyers deserve representation on the Supreme Court. Not that I'm saying that Miers is mediocre, it's just that you really can't argue that she is anywhere near the level that you need to be in order to be an effective Justice.

(7) Stephen M. St. Onge made the following comment | Oct 4, 2005 9:57:08 AM | Permalink


        As I read your posts (and very good posts they were, too), I remembered something my own attorney told me in a social setting.

        When he graduated from law school, he said, the only legal job he was really qualified for was appellate level judge.  After all, he'd spent three years reading briefs and trial records, looking up precedents, and deciding how the law should be applied in a particular case.  He thought that after a few years of that, he might have been qualified to become a trial judge, and after a few years of that, he might have been qualified for private practice.

        I took a good look at Miers resumé at my blog, and what I see is a woman who's been a great success at almost everything she's ever attempted in the legal field -- and she attempted quite a lot.  I think it's ridiculous to suggest she's unqualified.

        As for her judicial philosophy, given what those who know about her say, (namely, that she's a conservative who more-or-less respects the text of the Constitution), I'm OK with her there, too.

        So, if I were a Senator and had to vote today, I'd vote for her.


(8) jvp made the following comment | Oct 4, 2005 10:14:40 AM | Permalink

I believe it was Senator Hruska (R-Ne), not Senator Borah, who made that statement in connection with the nomination of Judge Harold Carswell.

(9) Jonathan made the following comment | Oct 4, 2005 10:43:02 AM | Permalink

If we are to believe Lowery's quote, then that indicates that Bush chose a third-rate lawyer for his counsel.

This same third-rate lawyer is the one who is responsible for recommending and vetting the president's judgeship picks, who gave us JRB, etc.

The same one who Roberts thought very highly of, in his recent confirmation.

Okay then, more like this please.

I think the main disappointment over the pick isn't so much over Meirs herself, but that there isn't going to be a big bloody brawl in the Senate, which many (including myself) were itching for. However, rubbing your opponent's nose into the dirt while on top, however satisfying, is probably not wise politics, especially if you can achieve your result without direct confrontation.

(10) gsbaker made the following comment | Oct 4, 2005 11:13:40 AM | Permalink

I have my reservations about Miers, but
1. Anyone who has taught at a credible university knows that their top students are as good as the more numerous top students at top tier schools and are more realistic in their approach to their subject.
2. Your cheap shots re. tenure seeking profs. hit the mark squarely. I have no knowledge as to law schools but in education, other professional schools, and liberal arts schools publication and resume development trumps substance.

(11) David made the following comment | Oct 4, 2005 11:25:57 AM | Permalink

Keep up the “revolt” guys. It’s about time the Republican party stopped taking its base for granted. Quite frankly, I’m sick of people saying “it’s Bush’s choice… it’s Bush’s choice!” Well, you know what? IT’S MY CHOICE TO GET IN MY CAR AND DRIVE DOWN TO THE POLLING BOOTH NEXT NOVEMBER! Heed our warning, Republican senators! The Supreme Court is not a joke-it’s why most of us even bother voting in the first place.

Roberts was a good pick (I believe he will vote with Scalia and Thomas, but mostly with Scalia), but Miers, though a good woman, is TOTALLY UNACCEPTABLE!

I demand that the White House takes one of the following courses of action:

1.) Release information that demonstrates her philosophy is in-line with Scalia and Thomas,

2.) Withdraw the nomination,

or, 3.) Ask Ms. Miers to withdraw herself from this nomination,

Contact your senators and the White House and tell them!

(12) Ben Zeen (a pseudonym) made the following comment | Oct 4, 2005 12:59:47 PM | Permalink


Psst. Wrong blog.

(13) George Purcell made the following comment | Oct 4, 2005 1:00:21 PM | Permalink

Beldar, thanks for putting forth a persuasive case. I don't entirely buy it...but you have made me step back and consider my initial reaction.

(14) TwoDog made the following comment | Oct 4, 2005 1:14:18 PM | Permalink

Good post other than you comment about "she's some night school graduate working out of a low-rent shopping mall". Fresh out of college I worked for a bank in Houston. It was there I learn the value of excellent legal counsel and advice...protecting the bank's interests and my career at the same time. One of the best lawyers I worked with was a "night school" type single mother from South Texas Law who worked for Liddell Sapp. I would have put her up against any ofthe silver spoon types from UT/SMU or anyplace else who worked at Baker/Botts, Andrews/Kurth, Fulbright...and so on. Her name, Barbara Perkins.

(15) Mark made the following comment | Oct 4, 2005 2:15:47 PM | Permalink


You weren't kidding when you wrote the line that I've cut and pasted below.

"And like the lawyers from Locke Purnell and Liddell Sapp, I've been regularly kicking such snobs' butts in court for the last 25 years — and not just in Texas courts, either."

A simply marvelous post. Thank you for your FACTUAL information. One can find so little of the basic facts in our slander-now-and-check-the-facts-whenever society.

I've added your website to my favorites list.

One suggestion: You've got some "muscle" website linked on the right side of your screen advertising the reasons why liberals will "hate Harriet Miers." Respectfully, please eliminate that link. I don't want to hate anyone. Not liberals. Not conservatives. Not Democrats. Not Republicans. Not trial lawyers. Not constitutional law types. Not Harvard grads. Not SMU alumni.

Today, out of curiousity, I tuned in to Rush Limbaugh. He had a caller on the show. Someone who said that he trusted the President to make the proper nomination and that the President was continuing with his attempt to unite our country.

In response, Limbaugh asked him, "Do you really want to be united with liberals?"

Hell, last time I checked, the name on our country was the UNITED States of America. Not the United States of Red. Not the United States of Blue.

I refuse to allow those who play fast and loose with the facts, like Mr. Lowry, or prey upon our doubts and fears, like Mr. Limbaugh, tear apart our nation. We've been around for a hell of a lot longer than either of those two individuals. We've made it through wars for our revolution and between our very own states. We've in what was thought to be the war to end all wars and less than 30 years later, we fought yet another epic struggle.

On 9/11, our greatest cities were attacked and terrorism came to our shores. We emerged then and defeated our enemies.

The last damn thing we need, I respectfully submit, are a few hecklers from the cheap seats attempting to play us against one another just to make a few bucks!

Harriet Miers is the President's nominee to the Supreme Court.

And the Supreme Court represents all of us in the UNITED States of America.

Thank you for your wonderful website.

(16) Baltimore Lawyer made the following comment | Oct 4, 2005 2:18:17 PM | Permalink

The post is a persuasive rebuttal to the pro-Bush lawyer's overstatements, but it is utterly unpersuasive if the point is that Harriet Miers is qualified for the Supreme Court. She's not. I'm in private practice with a big law firm, and I can tell you there are literally hundreds of private lawyers at Miers's level of professional accomplishment. This is not to minimize her achievements, but her resume is a suitable one for a federal district court appointment, which, if she was a standout there, could lead to elevation to the federal court of appeals, and then, if unquestionably a luminary, to consideration for the Supreme Court. But anyone who tries to make the argument that based on Beldar's post, she is qualified for the Supreme Court now is merely changing the criteria for such qualification and opening it up to includes hundreds of top private attorneys. She's a sorry choice, no matter how much lipstick you put on the pig.

(17) Mark made the following comment | Oct 4, 2005 2:28:02 PM | Permalink


I know the Baltimore legal scene. I'd rather be represented by a crab than by any attorney based out of Baltimore.

A sad town with a pathetic legal community.

Baltimore is the Poconos of the legal community, where litigators go when they can't cut it in Washington, New York, Boston, etc.

If you want a doctor, go to Baltimore.

If you want legal advice, get out of Baltimore ASAP.

(18) Baltimore Lawyer made the following comment | Oct 4, 2005 2:33:53 PM | Permalink

I don't know who Mark is, but here's who I am: I was Executive Editor of the Law Review at a top-ten law school and in the top 1% of my class; I clerked for the federal court of appeals (Fourth Circuit); for years I was with the Baltimore office of the firm where John Roberts practiced; I had, and turned down, offers from Davis Polk in New York and two D.C. firms in order to return to my hometown, Baltimore, to practice.

Mark's entitled to his opinion (he didn't seem to have one) on Miers, but he doesn't have a clue about me and my qualifications to offer the opinion I gave, nor does he know "Baltimore legal scene."

(19) Bond made the following comment | Oct 4, 2005 2:38:20 PM | Permalink

Beldar, Thank you for your thoughtful, well-founded rebuttal to this and other ill conceived cheap shots at the president and specifically his nomination of Harriet Miers to the SCOTUS. She will likely turn out to be the stealth conservative on the court that might never have happened had a "fight" been picked to ensure a Scalia or Thomas was confirmed. As history bears out, we never really know until we know some years later. The President's moral compass is well founded, as well as the vision and foresight that so many of his critics lack, to ensure that during his tenure as opportunity has allowed he will reshape our highest court. Thanks for all you do to enlighten and correct the unelightened nonbelievers.

(20) PRIM made the following comment | Oct 4, 2005 4:55:53 PM | Permalink

Beldar: Thanks for the complete and effective response to Lowry's anonymous source. I never thought of Lowry and other NRO writers as twits, but this episode puts them in a very unfavorable light. Even Lowry's acknowledgment of your correction was snarky.

I have been amused at the condescending references to SMU Law School. As Editor-in-Chief of the Southwestern Law Journal before Harriet Miers became the Articles Editor, we thought of ourselves as pretty competitive. One of our professors, Alan Bromberg, was nationally-recognized as among the top two or three business law teachers. He urged some of us to go to Wall Street to see if we could compete with the "top-tier" law school graduates. At the time it was nearly unheard of for a Dewey Ballantine or White & Case to hire outside a dozen or so schools. But I guess we competed OK, because several of us are or were partners in the big white shoe firms, and their recruiters, to this day, seek out SMU grads.

I didn't know Harriet Miers while at SMU - we didn't overlap. But I had the distinct good fortune to serve with her on the board of directors of the largest insurer of lawyers' professional liability. She stood out among the members of that board, which consisted of nearly two dozen lawyers from top firms across the country. She did not feel it necessary to speak out on every issue, but when she thought she had something to add, she did. And she was consistently followed.

I laugh at the snobbery of the NRO types, who probably have never attended a single session at which momentous issues, affecting our lives and our futures, were discussed. She has attended too many to count.

I'd put that experience in the "top-tier" - above academia, and certainly above punditry.

Thank God for Harriet Miers.

(21) Beldar made the following comment | Oct 4, 2005 8:01:27 PM | Permalink

PRIM, thanks for the first-hand info about SMU and the Southwestern Law Journal. Rich Lowry and Jonah Goldberg both posted prominent corrections with a link to this post, and Mr. Lowry also sent me a polite and apologetic email. Mr. Lowry's trust in his source was doubtless in good faith; and I know that he and his colleagues at NRO and the National Review have impeccable journalistic ethics. So I was confident that they'd put things right as soon as I could get their attention (which is sometimes hard, their constant ambient email noise is deafening I'm sure).

Although I didn't attend SMU, I felt fairly confident sharing some information and expressing some opinions about it. I vividly recall taking my LSAT in the SMU Law Library on the morning before a Texas-OU game (I had to switch into my Longhorn Band uniform in the men's room immediately thereafter and catch a cab on Mockingbird); I lived about six blocks from the lovely SMU campus while I was a summer clerk at Thompson & Knight in the summer of 1978; and I made probably three or four recruiting trips to SMU while I was at Baker Botts. There's just a whole lot more to be said in evaluating a law school and its students than this year's USN&WR ranking.

I don't have a link at hand, but recall seeing something this morning -- Dallas Morning News perhaps? it might have been old -- with Prof. Bromberg speaking well of Ms. Miers as one of his students. I happen to also have a very warm spot in my heart for him, because he was gracious enough to read and comment on a draft of my Note in the TLR before it was published -- something that was very valuable to me, since I was writing about sections of the Texas version of the Uniform Property Act that he'd drafted to fit the model act with Texas' community property laws in conjunction with a standing committee of the Dallas Bar Association. That's an absolutely typical example of the way that SMU, Prof. Bromberg in particular, and the Dallas Bar have contributed materially over the years for the benefit of the legal profession and the public throughout the State and not just in Dallas County. I'm wondering whether Prof. Bainbridge, for example, knows of Prof. Bromberg and his hornbook and treatise (which were in pretty widespread use nationally IIRC)?

I even started to explain about the Belo Mansion (and Bonnie and Clyde's bullet-riddled corpses), but figured that would just be too bizarre a rabbit-trail to start down. You'll catch my drift though, I'm sure. Maybe that's something I'll blog about on a slow day during the confirmation hearings.

(22) Beldar made the following comment | Oct 4, 2005 8:40:33 PM | Permalink

Mark, thanks for the kind words. The box in my sidebar you're referring to is a (temporary, this week only) BlogAd. I don't vouch for their contents nor vet the folks who run them, and will sell the ad space to almost anyone who wants to buy it, including those whose politics I disagree with, provided they're not engaged in something I deem "too vile" based on an utterly subjective standard. My ad revenues almost pay for my bandwidth most months.

Baltimore, I appreciate your thoughtful and articulate comment, and I have no doubt that there are many fine, well-qualified lawyers in your hometown, and that you're among them. Nor do I want to get into the typical dogs-circling-and-sniffing credentials routine with you, beyond noting that (a) my own national big-firm background includes three years as a litigation partner in Weil Gotshal (along with quite a bit more), and (b) you're either (i) not looking at Ms. Miers' entire list of credentials, or you're (ii) living in a "Baltimore" that while a terrific place, is part of an alternative dimension.

There most emphatically are not "hundreds of lawyers" who've been (a) managing partner of a 400+ lawyer firm, (b) president of their state's bar, (c) an accomplished courtroom lawyer in both state and federal courts, and (d) Counsel to both the Governor of Texas and the POTUS. I'm reasonably sure, in fact, that there's precisely one person in this dimension and universe who has that particular set of professional credentials. You're entitled to pooh-pooh them, for that's a matter of opinion. But your factual assertion regarding how many lawyers are at her objective level of professional accomplishment is demonstrably wrong. In particular, and all snark aside, I respectfully submit that being Counsel to the President of the United States is a career credential that is not fungible with any others.

(23) Rob made the following comment | Oct 5, 2005 1:32:58 AM | Permalink


Excellent comments

First we had 2 weeks of 24/7 media generated massive hysteria of hurricane Katrina from the expected far left CNN and other sources, but more disturbingly including "fair and balanced" Fox News with Shepard Smith and Geraldo all but (falsely) claiming George Bush was starving people to death and leaving them to die to be raped and beaten at the convention center and a bridge overpass and other locales in New Orleans

Then we had primarily a right-wing pundit generated hissy-fit with otherwise sane people like Laura Ingraham and Ann Coulter ("Harrietts not even from a top 5 school") going into a tirade w/o GETTING THE FACTS FIRST, basically ripping this nominee to schreds

The snobbery and elitism from both the left and the right have been breathtaking, including that left wing network legal analyst Jeffrey Toobin who has finally revealed his true colors

I even heard one local right wing radio host in Boston claiming her major qualifications were in her role as a secretary to Bush getting his coffee. Of course she was in fact White House "Staff Secretary" which is sort of like saying clerking for a federal district court judge compares to clerking at a 7-11 convenience store

Some of these people need to apologize

Nice to see someone putting out some facts

Rob (5th rate DC admitted lawyer, public acctg background)

(24) Rob made the following comment | Oct 5, 2005 2:23:56 AM | Permalink


Richard Lowry, 31, graduated in 1990 from the University of Virginia, where he studied English and history. He went on to work as a research assistant for Charles Krauthammer, then as a reporter for a local paper in Northern Virginia. Richard Lowry joined National Review in 1992, after finishing second in a NR young writers contest. He became NR’s articles editor before moving to Washington in the summer of 1994 to cover Congress. He has written for Reader’s Digest, the Wall Street Journal, and a variety of other publications on topics ranging from presidential campaigns to marriage proposals and radio personality Dr. Laura. He was named editor of National Review in 1997. He lives in New York City.

Lets use some of the tactics these snobs have been using to attack the nominee

1. I was surprised how lightweight his credentials really are, considering its National Review and all

2. I assume he does have a PH D too, and the biography being modest is simply not mentioning it

3. Last time I checked there were 8 Ivy League schools and Univ Va is not one of them.

4. Was Mr Lowry rejected at Harvard Law School

5. Why didn't Mr Lowry consider the 2nd rate law schools?


(25) David Nieporent made the following comment | Oct 5, 2005 5:46:25 AM | Permalink

Let's grant that Rich Lowry doesn't have his facts straight. Still, your defenses of this nomination keep striking me as "damning with faint praise."

Short version of your post above: she was one of the better students at one of the better law schools in Texas, and worked at and managed one of the better firms in Texas.

That's sufficient, perhaps impressive, for many jobs -- but Supreme Court Justice doesn't seem to me to be one of them.

If one made a list of the top, say, 100 candidates for the Supreme Court (based on qualifications, not likelihood of being nominated or confirmed), would Harriet Miers have been on that list? If any person other than her good friend were president, would there be a snowball's chance in hell she'd have been nominated?

(26) Mark made the following comment | Oct 5, 2005 8:24:50 AM | Permalink


Thank you once again for your thoughtful, reasoned post. I understand your need to pay the bills and welcome your desire to offer alternative and/or conflicting points of view. The former is a product of our fine capitalist society and the latter the foundation on which our democracy is based.

Hatred is cheap, tawdry, and ill-befitting such a fine website. That's my only point in the matter. The "Us-vs.-Them" mentality is one I will battle with factual assertions and deliberative, persuasive commentary until my final breath on this planet. Foolish, perhaps, but it helps pay my bills and keep me laughing in a myriad of ways.

As to my friend in Baltimore, I thank him only for proving my point: namely, that the opposition of certain Conservative pundits and legal minds to Ms. Miers is not based upon her abilities, but rather stands weakly on their own elitist, close-minded perceptions of success and those deserving of it. Baltimore, like Richard Lowry, Ramesh Ponnuru (Princeton) and Ann Coulter (University of Michigan Law School after gaining her undergraduate degree at Cornell), believe that it is solely the right of individuals of their breeding and social background to serve on the United State Supreme Court. Truly a pity that Baltimore, Mr. Lowry, Mr. Ponnuru, and Ms. Coulter carry forth such myths.

After all, I thought I'd read somewhere that we lived in a meritocracy, a nation in which one - anyone - can aspire to the greatest of heights, the pinnacle of success. Seems that Baltimore, Mr. Lowry, Mr. Ponnuru, and Ms. Coulter all believe that the path to success for all of their fellow Americans begins and ends with graduation from one of a couple of handful of law schools in our vast nation.

I have no doubt that Baltimore has worked hard to secure his place in our legal community, no question that Baltimore possesses a functional legal mind.

Yet, chuckling, I could not help but read Baltimore's response to my statement about his city's legal network. With his dander clearly raised, Baltimore, much like a man lobbying for tee time at the country club or a seat at a five-star restaurant on Friday evening, emphasized his educational and legal resume clearly guaranteed him - and his fellow alumni - certain privileges to which the rest of America clearly were not allowed. When I asserted earlier that Baltimore was, indeed, a city that owed much to crabs, I did not expect a legal mind from said community to confirm my statement with actions more reminiscent of a petulant, spoiled child.

Baltimore, I do thank you so for proving my point. I do hope we have a chance to engage one another in open court. You are so easily maneuvered and so incapable of retaining control over your emotions. The pleasure of debating points of law with you would be a pleasure: mine.

Also, didn't President Bush compliment Harriet Miers on her steely resolve, her ability to keep her emotions in check? Perhaps that's what Baltimore, Mr. Lowry, Mr. Ponnuru and Ms. Coulter most loathe about Ms. Miers. While each of them easily weakens at the slightest provocation, Ms. Miers remains cool, calm, and collected?

Maybe that's why the President selected Ms. Miers rather than some fiery prim and proper product carrying the false beliefs of privilege and guaranteed success. Ms. Miers knows how to retain her emotions and keep the ultimate goal in site. Clearly, the arrogant likes of Baltimore, Mr. Lowry, Mr. Ponnuru, and Ms. Coulter lack this ability.

But, in a nod to Baltimore, Mr. Lowry, Mr. Ponnuru, and Ms. Coulter, methodically, calmly deconstructing the arrogance of their debates does make for good, although somewhat uncompetitive, sport.

Of course, reviewing the Orioles' 2005 season past and the Ravens' 2005 season present, how much of a challenge, I ask anyone, can Baltimore, or anyone from its community, truly provide?

Edward Bennett Williams was right.

When you want crabs, go to Baltimore.

When you seek legal advice, get your butt up to D.C.

(27) Baltimore Lawyer made the following comment | Oct 5, 2005 8:40:49 AM | Permalink

As for my response to Mark being that of a "petulant, spoiled child" with his "dander" raised, one need only read and compare the two posts and draw his own conclusion about who was the more civil. Mark's schoolyard taunts about beating me in court, the Orioles, the Ravens, and so on all speak for themselves, as we lawyers say, and don't merit a response.

And, by the way, I'm not a disappointed conservative. I'm a lifelong Democrat who enthusiastically supported Roberts's nomination and am dismayed at Miers's selection, not for ideological reasons (I'd rather have her than Luttig on those grounds), but because she lacks the qualifications for a Supreme Court nominee. She's not even in the ballpark by any objective standard.

(28) Baltimore Lawyer made the following comment | Oct 5, 2005 9:29:04 AM | Permalink

Turning to more substantive matters than Mark raises, I appreciate Beldar's well-reasoned response to my first comments. In particular, he takes issue with my comments that literally hundreds of lawyers in the United States have backgrounds roughly similar to Miers. Beldar wrote:

"There most emphatically are not 'hundreds of lawyers' who've been (a) managing partner of a 400+ lawyer firm, (b) president of their state's bar, (c) an accomplished courtroom lawyer in both state and federal courts, and (d) Counsel to both the Governor of Texas and the POTUS. I'm reasonably sure, in fact, that there's precisely one person in this dimension and universe who has that particular set of professional credentials."

As I discuss below, maybe Miers is the only one who has touched all these bases, but hundreds have touched one or two of them, and none of them sets her apart as Supreme Court material. As for (a), I'm not sure how many law firms have 400-plus lawyers, but I'm reasonably confident that the number is at least 100, based on the AmLaw 100 list. So you've got 100, at least, that meet this part of the test, and you would have to also include the former managing partners of each firm, as well as, I would argue, managing partners of many other large firms (Is there a significant difference between managing a 400 and 300 lawyer firm?), especially since for many years Locke Purnell wasn't the size the merged firm is today.

As for (b) a similarly large number of lawyers have been President of a state bar. There are fifty states, so you've got 50 right there. One might say Texas should count for more because of its size, so assume 10 states. Over a ten-year period, you're talking about 100 people who've been President of a large state's bar association. More to the point, it's awfully hard to argue that intellectual distinction has anything whatsoever to do with becoming President of a state bar, at least based on the long line of mediocre lawyers who've headed our state bar in Maryland

On to (c), her being "an accomplished courtroom lawyer in both state and federal courts." I doubt that Beldar really thinks this is a small number, but if he does, again I would ask him to look through the AmLaw 100, or 250 for that matter, and you'd find at least 5-10 (arguably many more) lawyers at each firm who fit this bill.

Finally, (d), counsel to the Governor and POTUS. Here, I yield completely to Beldar's claim that only a handful have served in this double capacity. But how did she get there? By being the President's friend and also, I have no doubt, a highly capable attorney, hardworking, sound judgment, careful, and all the things that mark a very good lawyer.

But in the end, that's really all she is: A very, very good lawyer, who is very, very close to the President. None of the criteria Beldar lists, individually or collectively, are accomplishments of singular note. They are impressive, but impressive in the sense that, say, only about 25-50 lawyers in any given state accomplish them.

Maybe she'll be a fine Supreme Court Justice, but nothing about her background, other than proximity to the President, truly distinguishes her from a crowd of hundreds.


In signing off, I'd simply ask that if Mark has something to say on the issue at hand, then say it. The ad hominem attacks don't advance the ball.

(29) Mark made the following comment | Oct 5, 2005 9:49:47 AM | Permalink

Baltimore, when the going gets tough, the feeble shout character assassination, decry the facts of their opponent's case, and change the subject.

Again, thank you for acting exactly in the manner that I had expected.

Might I suggest you submit your resume to Tom DeLay's legal team? I hear Mr. DeLay's people are looking for someone out of the Scott McClellan mold to spin the press puppies. I'd be glad to offer you a letter of recommendation. You have both the pedigree and debate skills for the task.

On to other, more challenging matters...

Has anyone asked Richard Lowry, Ramesh Ponnuru, Ann Coulter, and even Baltimore whom they would have selected over Harriet Miers as a nominee to the Supreme Court?

The usual suspects include, of course:

J. Michael Luttig, U.S. Court of Appeals, Fourth Circuit; Antonin Scalia clerk; University of Virginia Law; Washington and Lee undergrad;

J. Harvie Wilkinson III, U.S. Court of Appeals, Fourth Circuit; Lewis F. Powell clerk; University of Virginia Law; Yale undergrad;

Samuel Alito, U.S. Court of Appeals, Third Circuit; William J. Brennan clerk; Yale Law; Princeton undergrad;

Michael McConnell, U.S. Court of Appeals, Tenth Circuit; William J. Brennan clerk; Chicago Law; Michigan State undergrad;

Edith Jones, U.S. Court of Appeals, Fifth Circuit; William H. Rehnquist clerk; University of Texas Law; Cornell undergrad;

Priscilla Owen, U.S. Court of Appeals, Fifth Circuit; no clerkship; Baylor Law; Baylor undergrad;

Janice Rogers Brown, U.S. Court of Appeals, D.C. Circuit; no clerkship; University of Virginia LL.M.; UCLA Law J.D.; Cal State-Sacramento undergrad;

Alice Batchelder, U.S. Court of Appeals, Sixth Circuit; no clerkship; University of Virginia LL.M.; Akron University Law J.D.; Ohio Wesleyan undergrad;

Karen Williams, U.S. Court of Appeals, Fourth Circuit; no clerkship; University of South Carolina Law; Columbia College (not Ivy) undergrad.

All sit on the Appeals bench, the Eastern League (home of the best prospects, forget Triple-A ball) of the U.S. Supreme Court.

Seems to be a healthy University of Virginia line running through this group. Luttig and Wilkinson graduated from UVA Law. Rogers Brown and Batchelder gained LL.Ms at UVA. Perhaps that explains the outrage of Mr. Lowry (UVA Class of '90).

Alito is pure Ivy, while Wilkinson (Yale) and Jones (Cornell) got their horticulture backgrounds via the undergrad route. Here's where Coulter (Cornell undergrad) and Ponnuru (Princeton undergrad) have their ties.

Healthy doses of Texas types with Owen (Baylor all the way) and Jones (Texas Law).

And it helps to have clerked for the Supremes. Alito and McConnell worked for Brennan, Jones for Rehnquist, Luttig for Scalia, and Wilkinson for Powell.

Now, that's just nine of the usual suspects. Baltimore, as I recall, mentioned hundreds of potential candidates he'd favor over Ms. Miers.

To keep things sporting, lets toss out a few names from outside the federal bench. (Remember, Brennan, an Ike nominee, did not have the bench in his background. Same went for William O. Douglas, Hugo Black, and Felix Frankfurter.):

John Ashcroft, former Attorney General;

Alberto Gonzales, current U.S. Attorney General;

Fred Thompson, former U.S. Senator from Tennessee;

Larry Thompson, deputy Attorney General under President George H.W. Bush;

Orrin Hatch, senator from Utah and member of the Judiciary Committee;

Lindsey Graham, senator from South Carolina and member of the Judiciary Committee;

Bill Bradley, former senator from New Jersey, Rhodes scholar, and still the owner of a decent jumper from 15 feet out if left open. (Had to see if you were paying any attention.);

And, just for my pal Baltimore, Peter Angelos unless, of course, Ed Garland, Ray Lewis's defense attorney in his 2000 double-murder trial in Atlanta, wants a spot on the Supremes.

OK, gang. Have at it. Who would you have nominated to the Supreme Court if not Ms. Miers?

(30) Baltimore Lawyer made the following comment | Oct 5, 2005 9:58:26 AM | Permalink

Point of clarification: Mark says that I said I'd "mentioned hundreds of potential candidates [I]'d favor over Ms. Miers." Actually I didn't mention any candidates, much less "hundreds," except to say that I liked Miers better than Luttig on ideological grounds.

I also didn't say I'd "favor" hundreds over Miers. I merely made the point, several times, that her background does not distinguish her from hundreds of other lawyers in the United States.

Please tone down the rhetoric, Mark.

(31) Mark made the following comment | Oct 5, 2005 10:23:52 AM | Permalink


My apologies. I incorrectly attributed the "hundreds" of other potential candidates reference to you. That was my mistake.

Instead, said reference had been made on numerous occasions by members of the National Review website, among them Mark Levin, and by Ann Coulter.

Please accept my sincere apology.

(32) Baltimore Lawyer made the following comment | Oct 5, 2005 10:29:26 AM | Permalink

No problem.

From your list, I like McConnell. This may shock you and others her, but despite being what a left-of-center Democrat, I'm staunchly pro-life (which makes it pretty hard, to say the least, to root for my side a lot of the time).

(33) Baltimore Lawyer made the following comment | Oct 5, 2005 10:30:20 AM | Permalink

No problem.

From your list, I like McConnell. This may shock you and others here, but despite being a left-of-center Democrat, I'm staunchly pro-life (which makes it pretty hard, to say the least, to root for my side a lot of the time).

(34) nathan bissonette made the following comment | Oct 5, 2005 12:33:40 PM | Permalink

As a night school graduate working out of a low rent office, I resent the implication that I'm not as well qualified to be on the Supreme Court as Harriet Meiers. I'll have you know that the most distinguished alumnus of my law school is none other than Warren Burger.

Er, that is, well okay, the fact that the implication it's true doesn't make it any less resent-able, if you know what I mean.

Nice job on Lowry, though. Keep up the good work.

(35) Joe Schmoe made the following comment | Oct 5, 2005 2:35:35 PM | Permalink

The most important point that Beldar raises is that real-world experience is a good thing.

Nerds are good choices for the Supreme Court for two reasons. First, you know they have enough intellectual firepower to handle the work. Second, they have actually thought about rareified Constitutional issues and developed a judicial philosophy.

But I think there are also two serious liabilities associated with nerds. First, a lot of them really don't have much experience with the real world.

An eminently fair and well-reasoned legal standard developed by some earnest and naive law nerd might be abused as a license to harass and steal by petty bureaurecrats and elected officials. See, e.g. the recent takings decisions.

Second, not all nerds are equal. They may be smart, and they may be interested in Consitutional issues, but only the smartest of the smart are able come up with rules of law that the huddled masses can actually interpret and apply.
O'Connor is a great example of a nerd who just isn't smart enough to come up with coherent and workable standards. Her opinions are frequenly muddled and it is impossible for workaday judges and lawyers to apply the clumsy principles that she creates.

To my mind, Miers has a big advantage here becuase as a practicing lawyer, she understands the importance of coming up with clear rules. Clients don't ask you for a "balancing test," or for a "penumbra" of options; they want to know what they should do.

This is also true when you are writing a brief. If you have a case before some state court judge, you don't want to bedazzle him with "balancing tests," "reasonableness" standards, etc. Some of them enjoy that stuff but the majority hate it. Your job as a lawyer is to be clear and persuasive, not scholarly. The law is X; the facts are Y; therefore, Judge, your ruling should be Z.

Clarity is really, really important. But it is often in short supply at the Supreme Court. Consider those Ten-Commandments-in-the-Courthouse-cases. Does anyone really them? No. Now, to some degree the incoherence is due to the fact that the Supremes are conflicted on this issue. But it's also due to sloppy thinking and poor opinion writing.

Miers would never have risen as far as she has by being sloppy. She doesn't have the luxury of biovating at some faculty seminar about constituitional principles that tickle her intellecutal fancy. She has to make real decisions and actually apply legal principles to the facts of a case. To my mind, this is a big asset, especially when you consider the fact that the eggheads currently on the Supreme Court often seem to have trouble with this.


I tend to think that there are, in fact, THOUSANDS of lawyers who are capable of sitting on the Supreme Court. The pool of talent isn't just limited to former SC clerks and top law professors. I mean, even if we adopt YOUR standards, each SC justice gets 3 clerks, right? Doesn't the Chief get extras? So the SC alone turns out 30 clerks per year. Most of the people who have clerked in the last 30 years are, presumably, still alive. The pool of former SC clerks alone has over 900 candidates.

And I think we'd all agree that there are plenty of bright people who've never had a SC clerkship, or any clerkship for that matter. A lot of them are brighter than SC clerks. There are successful practicing lawyers; there are state court judges; there are talented academics; the pool has got to number in the thousands.

This just reflects the fact that the law is a profession which attracts a lot of really bright and capable people.

(36) Jeffrey LeeTatum made the following comment | Oct 6, 2005 8:53:14 AM | Permalink

The only way Democrats think they win a fight is if the other person comes out Bloody. It will be hard the bleed this Lady as she has no paper trail. You don't have to be a Guinness to interpret the law. Harriet Miers is much smarter than anyone on this Blog. Not real hard to do.
What about Bush's legacy? I don't think he really cares about his legacy. Abraham Lincoln was one of the most hated living Presidents ever. What is his legacy? Bill Clinton is worried about his legacy. He should be. The only living EX-President to be impeached. That's why you see him anytime someone will put a camera in his face. Plus he still has his eye on the Big Prize. Getting Hillary in the White House. Well, not her him and then he can fly around and do just what he used to do. Not much. George W. Bush will disappear in the sunset and doesn't really care what any of you think of him. Don't get me wrong. He hopes you like him, but if not O' well. See ya'll on the ranch. I will promise you one thing he will not be a Jimmy Carter and condemn a sitting President. Even if it's Hillary. "God forbid."
There are no credentials to be on the "SUPREME COURT". You don't even have to be a Lawyer. Bush is looking Dumb again. Well, should I say Sly as a Fox. I think it's funny that every Lib think Bush is a the village idiot, but always seems to get just what he wants. Hell I'm glad she's not a Ivy League Lawyer. We need people on the courts to interpret the Law. Not to think what should I do on "This Case." Read the Damn Law and do your job. Read the case, read the Law and make the right decision. The only credentials you need to be on the "SUPREME COURT" common since.
Ruth Bader Ginsburg thinks 12 years old is old enough to consent to Sex. Zero common since in my opinion. I think she's sick, but only 3 Senator voted nay on her nomination. God forbid we have another Christian on the court. Harriet Miers is a Born Again Christian and I think that's just what the court needs. Here's Bush again "Sly as a Fox." Hard to throw a Bomb at nothing. Have a nice day!

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