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Tuesday, October 18, 2005

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

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

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

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

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

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

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

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

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

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

Posted by Beldar at 09:54 PM in Law (2006 & earlier) | Permalink


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(1) craig mclaughlin made the following comment | Oct 18, 2005 10:38:24 PM | Permalink

"Or maybe you, gentle readers, can posit one?"

Stumped me too, Beldar.

But then all I remember (not really all I remember, but for the sake of this comment...) from my legal ethics class is my professor saying: "The primary goal of legal ethics is to ensure that if someone must go to jail, it is your client and not you." (he didn't really believe that either, but its a good line)

(2) KevinM made the following comment | Oct 18, 2005 10:51:37 PM | Permalink

I hope they're paying you, Beldar, cause you're making a better case for HM than the White House PR office.

Gotta feel lonely with Hewitt on vacation and all.

(3) Beldar made the following comment | Oct 18, 2005 11:00:43 PM | Permalink

KevinM, Big Karl is definitely going to put sand in Hewitt's snowmobile gas tank for taking his personal time right now, yup.

(4) Carl Pham made the following comment | Oct 19, 2005 3:06:17 AM | Permalink

Eh, Glenn's position is clear. He's a law professor. He likes monks from the academy, or the next best thing (appeals judges), and would like to see more of them on the High Court. He has no real taste for seeing the more plebeian sort of worker in the legal trenches elevated -- let alone someone who has been overtly political, forsooth.

I think his instinctive horror at a WH counsel becoming seated on the Supreme Court has mostly to do with the "taint" of the frankly political that he fears would cling to the nominee. It would almost be -- I can hear him thinking -- as if we got used to a SCOTUS nominee having an explicit party alignment -- if we accepted that we had Republican and Democratic Justices. By common agreement every top job in the WH is seen as a political job requiring definite proof of party bona fides. We assume top WH staff are solid party regulars. So if SCOTUS nominees came more often directly out of the WH, how could we not begin to accept that nominees would be routinely and overtly loyal to the party that they formerly (as well as formally) served?

Well, I'd be more persuaded by Glenn's higher confidence in his colleagues if I knew fewer professors. A deep-thinking lot, but God forbid the Republic should be run by men of theory instead of a goodly mixture of they and men of action.

(5) Koz made the following comment | Oct 19, 2005 4:02:59 AM | Permalink

"Or maybe you, gentle readers, can posit one?"

It seems obvious to me, actually. In contrast to the Attorney General or the Solicitor General, the work product of the WHC is essentially private, and ought to remain so. But, the confirmation process for a Justice of the SCOTUS will force the release of that information.

POTUS should be able to invoke executive privilege without negative inference being drawn, where it legitimately applies. And it applies to the WHC with greater force than just about anywhere else in the executive branch.

If POTUS gratuitously waives executive privilege in this circumstance, it will compromise the ability of WHC to offer sound advice without the assurance that such advice will be held in confidence.

(6) James H made the following comment | Oct 19, 2005 6:35:42 AM | Permalink

It seems to me that there are 2 obvious conflicts here. As mentioned by Koz, the counsel will be conflicted between giving candid advice and advice that will look good to others at a later date.

The other conflict is the reason I oppose the Miers nomination. It is that the very reasons Bush nominated her, her personal loyalty to the President, are unsuitable qualities in a SC justice. If we support an independent judiciary, the judges shouldn't be selected on the basis of political considerations, especially loyalty.

(7) Glenn made the following comment | Oct 19, 2005 6:56:20 AM | Permalink

This article is remarkable not only for its suggestion that a WH Counsel aught not be considered for the job, but for what he actually says about Miers. His points seem to be:

1) She is qualified but less so than others;
2) WH Counsels shouldn't be SCOTUS nominees;
3) The White House did a lousy job implementing this nomination ("Cronyism" argument, "vetting", etc.).

On the basis of these three arguments, Reynolds concludes with:

As Mr. Bush faces calls to withdraw the Miers nomination, he should think seriously about whether to accept them -- along, perhaps, with the resignations of those responsible for this mess.

Huh? How did we get from some relatively mild criticisms, the most damning of which are not directed at the nominee but at the President himself, to this conclusion?

I can see how he could have concluded with "Bush's carelessness could result in the rejection of Miers, which might be for the best given his poor handling of the nomination" - that would seem to be a fair conclusion if you accept his points. But instead, he calls for throwing out the baby along with the bathwater and calling it wisdom.

I respect Glenn (heck, we share a good first name :)) but this isn't one of his more profound efforts at reasoning.

(8) Stephen M. St. Onge made the following comment | Oct 19, 2005 7:05:37 AM | Permalink


        I can think of one possible conflict, though it's farfetched.

        A future counsel believes he's in the running to be the next Supreme Court nominee.  Asked for advice on a certain issue, he thinks: 'The advice I ought to give the POTUS is X, but hearing it will make him angry, the fool, and he won't nominate me to the SCOTUS.  But if I tell him Y, he'll like the advice, and is more likely to put up my name.  Of course, this advice will eventually serve him badly, but by the time that happens, I'll have a lifetime appointment."

        As I say, it's very farfetched, and I don't think it's worth worrying about, but it is the only thing I can come up with.


(9) spongeworthy made the following comment | Oct 19, 2005 7:22:22 AM | Permalink

I can certainly imagine a scenario where she is asked to rule upon the legality of detainment or confinement issues she advocated as WH counsel. In fact, this of all things chills me on Miers.

This GWOT is new territory. I'm not sure it's a great idea to seat someone who has been advocating pretty strongly on one side of it.

(10) David L made the following comment | Oct 19, 2005 7:55:54 AM | Permalink

Glenn Reynolds is that name supposed to carry some weight? Law professor? Is that job supposed infer some special insight? I say the answer to both is no.

(11) nk made the following comment | Oct 19, 2005 7:58:17 AM | Permalink

Stephen M. St.Onge makes a very good point. The good counselor tells his client what he should do and not what he can do. He does not ingratiate. He keeps his professional judgment on behalf of his client independent from even that of the client. Otherwise the relationship turns into a corrupt spiral which taints both the professional and personal components.

(12) Uncle Bill made the following comment | Oct 19, 2005 8:29:41 AM | Permalink

James H.

You say: "It is that the very reasons Bush nominated her, her personal loyalty to the President, ..."

1) That is one (count them 1) reason(s).

2) And you know that this is the only reason(s)?

3) Do you have a link to where GWB says, or is proported to actually say that "The reason(s) I nominated HM is/are her personal loyalty to me"?

4) Or is this 'obvious to the casual observer'?

5) Or do you perhaps read minds?

(13) Beldar made the following comment | Oct 19, 2005 8:36:31 AM | Permalink

Koz wrote, "[T]he confirmation process for a Justice of the SCOTUS will force the release of that information." Sez who? I agree with you that "[i]f POTUS gratuitously waives executive privilege in this circumstance, it will compromise the ability of WHC to offer sound advice without the assurance that such advice will be held in confidence." Which is precisely why Bush isn't going to (or at least ought not) waive privilege. Recall that with respect to White House Counsel memos of John Roberts, privilege had already been waived when those materials had been released into the public domain via the Reagan Presidential Library pursuant to statute; that in turn had been done not to satisfy senatorial demands for John Roberts documents, but based on the passage of time and determinations that the documents no longer contained sensitive information.

James H, your second point — "judges shouldn't be selected on the basis of political considerations, especially loyalty" — would create a new standard for Ms. Miers' nomination that is very different from the ones under which many, many past Justices have been appointed. But in any event, that point doesn't create an ethical conflict that would threaten to taint advice given by the White House Counsel; it's a criticism of appointing people from that position that's essentially unrelated to Prof. Reynold's hypothesis or to my question. As for your first point, that "the counsel will be conflicted between giving candid advice and advice that will look good to others at a later date," I again note that normally that advice will be shielded from public view by attorney-client, work product, and executive privileges. But even putting that aside, you still haven't posited a specific fact pattern. In what sort of situation would the White House Counsel give advice that would "look good" to outsiders — thereby advancing his/her chances for confirmation, for example — that would also be detrimental to the POTUS or the people (in some hidden or latent way, necessarily, because if it's obviously bad advice the President won't take it and won't be "fooled" into making the nomination)? You're essentially just restating the premise — i.e., that there might be some difference of interests. Okay, but give us a fact scenario in which the Counsel's interests are different from the POTUS' and the public's, please.

Re Mr. St. Onge's and nk's comments, I certainly agree that many times a counselor's advice may be most valuable when it cuts against doing what the POTUS might otherwise be inclined to do. Doing a "really good job" doesn't mean being a rubber stamp. Indeed, in my experience, it's the rare, and extremely stupid, client who doesn't understand this point fairly easily: they want to avoid missteps and mistakes, and are willing to comply with reasonable advice to prevent them so long as they're given that advice in confidence and on a timely basis. So this is sort of re-writing my question — or at least the "really good job" part of it — to assume a POTUS who isn't capable of distinguishing between good legal work and bad legal work, or who's especially likely to be fooled at least for a time.

But I still have trouble coming up with a specific hypothetical in which the White House Counsel will be (a) telling the POTUS what he wants to hear, to gain favor and be more likely to be nominated and confirmed, when (b) following that advice will be bad for the POTUS or the people in (c) a way that only becomes apparent to the POTUS after that Counsel has become a Justice.

And even if that is some kind of worrisome potential conflict, it wouldn't only be a conflict with respect to a potential SCOTUS nomination, but also with respect to the White House Counsel being promoted to any other positions, e.g., Attorney General or another cabinet position, or for that matter even keeping his/her existing job.

So I'm still unpersuaded that there's a sufficient potential conflicts problem that we ought to routinely, automatically disqualify all White House Counsels for consideration for SCOTUS nominations.

(14) Char made the following comment | Oct 19, 2005 8:52:51 AM | Permalink

Let's step back and take a deep breath. First, the longest tenure that a WHC will have with his/her POTUS is 8 years. (How many WHC has GWB been through? How many did WJC have?) Assuming all of these doomsday scenarios, right after taking the job the WHC will have to begin calculating the demise/retirement of one of the Justices, and the potential for negative activity by POTUS that will create a situation for WHC to conduct a grand coverup. Either all of this has to happen in 4 years or despite the bad behavior (and with the help of WHC), POTUS gets reelected. There are simply too many things that would have to align to even make the situation remotely possible. This entire 'what-if' game illustrates why we don't need any more ivory tower thinkers on the Court. We need really fine lawyers who have dealt with the real world legal issues (like the interaction of soverign immunity and admiralty law) that the Court is asked to resolve.

(15) David Rogers made the following comment | Oct 19, 2005 8:57:03 AM | Permalink


It occurs to me that the most obvious potential conflict of interest for the White House Counsel is the one that is alleged to happened here. The White House Counsel is supposed to vett nominees to the Supreme Court. No one does a good job of vetting him- or her- self, and it seems obvious that, whatever Ms. Miers qualifications, she was not well vetted. If she had been, the White House would be surprised by the all negative information that is coming out about her and would have had responses ready on questions like her support of race and gender preferences, her failure to pay taxes on time on her slum property in Dallas, her support of a Constitutional amendment to ban abortion and her catergorization of the Federalist Society as a marginal extremist group and the NAACP as mainstream.

Her nomination has served the President poorly so far; he has gotten more grief from his base on this one issue than everything else in his presidency combined. Why? Conflict of interest. W. may have waived that conflict of interest knowingly, but that doesn't mean that he hasn't suffered harm because of it. As White House Counsel, Harriet Miers' job was to see that kind of thing doesn't happen. She failed, and she failed because she put her interests above those of her client.

(16) pat made the following comment | Oct 19, 2005 8:57:44 AM | Permalink

Spongeworthy, the mere fact that she knows more about the reality of the war that Radical Islam declared on America than any other putative nominee is a good thing. We already have enough cretinous judges sitting on lower court benches who think head-chopping, mass murdering terrorists deserve the protections afforded to lawful combatants under the Geneva conventions, or worse, the protections afforded to US citizens.

(17) Beldar made the following comment | Oct 19, 2005 9:01:08 AM | Permalink

spongeworthy, with due respect, you still haven't produced a specific fact pattern, even hypothetically. You've identified a topic — GWoT detainment or confinement issues. Yes, we can all agree that could be important. But how is it likely that a White House Counsel has some specific reason to give less-than-his/her-best advice on that topic based on the prospect of being nominated to the Supreme Court? Again, before I'm willing to agree that this is a concern that ought to disqualify all White House Counsels from even being considered, I need more than just a topic, I need to know at least a hypothetical fact pattern. In the ones I can think of, no real conflict arises.

Let's look, for example, at a very specific hypothetical using your topic, but narrowing it down further. Assume the POTUS asks WHC: "What are the outer limit of what we legally (i) can and (ii) should do with respect to the practice of "rendition," i.e., turning over captured combatants to other governments with respect to whom there's reasonable cause to fear that they'll be gratuitously tortured and then summarily executed without due process?" Important, tough issue. But why would the prospect of getting a SCOTUS nomination cause the WH Counsel to give less than his/her wisest and best-considered answer to this question? Can you give me two specific answers to that kind of specific question — one answer which is "right," i.e., of the sort that would be given by a Counsel who knows he/she has no chance of ever being appointed to the SCOTUS, and another of which is "less right" (doesn't have to be "wrong"), i.e., of the sort that would be given by a Counsel who wants and thinks he/she has a chance for a SCOTUS nomination.

If instead you're raising the argument that a recent White House Counsel may, in his/her early years as a Justice, have to recuse him/herself more frequently, that's a different point than the one Prof. Reynolds was raising, and not an across-the-board disqualification as a matter of legal/judicial ethics. And this same potential argument would also apply to former Attorneys General, lots of whom have in fact gone on to be Justices, some quite successfully.

(18) Beldar made the following comment | Oct 19, 2005 9:07:58 AM | Permalink

Mr. Rogers, with due respect, the White House denies that Ms. Miers vetted herself. Rather, it insists that she quite appropriately recused herself from considering her own qualifications. You may or may not admire the vetting done by whoever filled her shoes. (I doubt we actually have access sufficient to draw informed inferences on that, but whatever.) But the recusal solves that problem, and it's an awfully narrow one in any event — a one-shot, one-issue deal, not the type of conflict that could come up in multiple different factual contexts so as to justify a blanket prohibition against considering WH Counsels for SCOTUS nominations. (And by the way, I'd quibble quite a bit with some of your characterizations of Ms. Miers' record — I flatly reject, for example, your assertion that she "support[s] race and gender preferences"; if you're referring to the Grutter amicus brief, give me line and page please, because that's not what that brief said! — but I'll defer that to other posts.)

(19) Jim Hohnbaum made the following comment | Oct 19, 2005 9:15:44 AM | Permalink

The conflict is that some clients are like the patients who keep doctor shopping until they find some doctor who will give them the drug no one else will. Sometimes the answer a legal client wants - it would be legal for me to do this - is not the right answer. A lawyer for a strong willed president would be under great pressure to give the "right" answer, even if that answer probably would not hold up if challenged. Since the advice a lawyer gives a president rarely becomes public, the lawyer can give such advice with relative assurance that that it will not be challenged. Picture the Arthur Anderson accountants serving the Enron accountl.

(20) pat made the following comment | Oct 19, 2005 9:21:49 AM | Permalink

David Rogers, Miers vetting was done by Bill Kelley, formerly a professor at Notre Dame Law School, and a former clerk for Ken Starr and Justice Scalia.

According to the WPO, "At that point, according to another senior official close to the process, deputy White House counsel William K. Kelley suggested to Card that Miers ought to be considered for the next seat that opened. "It began to be kicked around in a small circle of people," the official said. With Bush's approval, Card and Kelley began the secret vetting, looking at Miers's public work.

* * *
Bush sat down with Miers in the Oval Office that same day for the first of four conversations in which she was the interviewee instead of the interviewer. Miers was stunned at first.

"We said, 'Well, Harriet, look at your résumé. Is that the résumé of someone you would recommend the president consider?'" recalled the senior official. "And she said, 'Yes.'"

(21) Weihsung made the following comment | Oct 19, 2005 9:26:54 AM | Permalink


Thank you for your clear and always enjoyable writings.

Prof. Reynolds' point about "politicking and positioning by appellate judges who think they have a shot" should make picking a nominee outside of the appellate rank even more appealing. Too bad he is in too much of a fever to ponder on it himself.

(22) Crank made the following comment | Oct 19, 2005 9:49:55 AM | Permalink

Point well made. Potential conflicts are pervasive in the law as in politics; Reynolds, who after all wrote a book about the obsession with the more abstruse potential conflicts, should know better. You can't lose sleep over every imaginable conflict; it's enough work riding herd over the real ones.

The real conflict issues are (1) whether Miers' intense personal loyalty to Bush, especially when combined with an apparent lack of an overarching judicial philosophy that could serve as a check on that loyalty, suggests a worrisome lack of judicial independence (and this does bother me even as a Bush supporter) and (2) whether there are too many big cases in which she would need to recuse herself on grounds of having given advice to the president on the issue (although this latter point is lessened by the short length of her service as WH Counsel; Gonzales would have a much bigger recusal problem).

(23) quark2 made the following comment | Oct 19, 2005 10:07:07 AM | Permalink

It is ridiculous seeing the vain attempt to remove all traces of humanity from those who are nominated or seated in SCOTUS.
And that's what is being attempted. These people are human, and have the same traits as those who never are nominated
The natural trait of any human being is to do what is best for themselves (pretty much known as survival instinct), and for those they are associated with.
Groups still trying in vain to erase the tribalism from man, is just that. In Vain.

(24) Koz made the following comment | Oct 19, 2005 10:33:28 AM | Permalink

"'[T]he confirmation process for a Justice of the SCOTUS will force the release of that information.' Sez who? I agree with you that '[i]f POTUS gratuitously waives executive privilege in this circumstance, it will compromise the ability of WHC to offer sound advice without the assurance that such advice will be held in confidence.'"

Ok, we agree that privilege should not be waived in this case.

Unfortunately for Miers (and likely other WHCs as well), her nomination depends on it. Ie, it is not strong enough to stand independently of her service as WHC.

In fact, the WH has already given assurances to the base that the she will be a reliable vote based on her duties in vetting other judicial nominations. But this (or anything related to her service as WHC) cannot be made a part of the public record because of the privilege thing. Note especially that the factual basis for these assurances is under substantial dispute.

(25) James H made the following comment | Oct 19, 2005 10:35:35 AM | Permalink

To Uncle Bill, yes it is obvious to a casual observer that Bush selected her for personal reasons. The fact that the WH hasn't been able to persuade their supporters that she is qualified is pretty strong evidence that she isn't. Read her birthday cards to Bush if you doubt her committment to him.

Beldar, here's a hypothetical fact pattern for you. Pro-Roe majority on Senate Judiciary Committee. Anti-Roe President. Issue arises requiring administration to weigh in on Roe or its progeny. If counsel wants SC seat and thinks privilege will have to be waived to secure seat, there is more incentive to write a pro-Roe memo than otherwise.

Back here in reality land, I think the WH will have a difficult time both asserting attorney-client privilege and moving the Miers nomination through the Senate. My guess is that her nomination will be withdrawn before a floor vote.

(26) molly bloom made the following comment | Oct 19, 2005 11:16:07 AM | Permalink


Does the Texas bar require its members to report suspensions from other bars?

If so, do you know if Harriet report her suspension from the DC bar (for failure to pay dues) to the Texas bar?


(27) big dirigible made the following comment | Oct 19, 2005 11:26:01 AM | Permalink

An obvious weakness of the Reynolds thesis is that he stops well short of the natural conclusion. By his rationale, anyone with SC ambitions risks perverting his prior job performances to boost his chances for the SC.

So, carry it further. We will have fewer perverted job perormances in and about Washington if we invariably select our SC justices from outside Washington. Better yet, we select from that large pool of Americans who obviously have no interest whatever in the post. That's not much of a burden, as there are many millions of intelligent and dedicated Americans who have no intentions of serving on the SC. So, draft a few of 'em.

Considering some of the ridiculous SC decisions of the past, this approach might be an improvement.

Reynolds thinks the selection pool should stop at law professors - for him, not an unreasonable stand. I think it should stop at physicists - for me, also not an unreasonable stand. Some physicists are plenty smart, and a few are actually sensible, too. And even a smart physicist would be loads cheaper than a mediocre lawyer. (And we wonder why the US is drowning in lawyers, but being swamped by China in engineering and scientific personnel - simple Economics 101, I'm afraid.)

(28) Aitch748 made the following comment | Oct 19, 2005 12:17:23 PM | Permalink

Does the Texas bar require its members to report suspensions from other bars?

If so, do you know if Harriet report her suspension from the DC bar (for failure to pay dues) to the Texas bar?

This would be the very FIRST time I'd read or heard anywhere that Harriet Miers was suspended from the DC bar (or from any other bar) for failing to pay dues.

Where did you read this? Do you have a link? It'd be interesting to read the backstory on this, such as the year when this happened, what Miers had to say about this, and any extenuating circumstances (like maybe she stopped paying dues in 1985 because she, say, moved to another state in 1985, and she was suspended in 1986 or something -- I'm not a lawyer so I don't know if that's a reasonable excuse or not).

(29) Tom Grey made the following comment | Oct 19, 2005 12:31:32 PM | Permalink

BigD has a great post -- ALL lawyers should be excluded from SCOTUS consideration, since they have an inevitable conflict of interest.
Plus, they read the Constitution and the law like lawyers, skewing their opinion writing, rather than creating/discovering "justice" as understood by the vast majority of non-lawyers.

Beldar, you're doing fine. Harriet's resume should be the focus on whether or not she is qualified "enough" -- she is. Top 1%, maybe not 1/10 of 1% egghead types.

(30) Berend de Boer made the following comment | Oct 19, 2005 2:12:25 PM | Permalink

I'm dismayed by the many commentators here who attack people who have given their live to study law. If you are good in your field, it should count in your favor, but the envy at such people is palpable here. And it works. As has been demonstrated, nominees to SCOTUS tend to become less and less elitist (http://www.forbes.com/free_forbes/2005/1031/048.html?partner=commentary_newsletter), not the opposite.

And Beldar is unconvincing: a person in charge of the vetting process who can potentially become the nominee itself must be fairly unprecedented, even among lawyers.

Of course there is always some conflict if interest, but if the conflict of interest goes as far as your next life time appointment to one of the most prestigous jobs in the country, can we ask some questions?

Do lawyers ever do the honorouble thing and withdraw when the conflict of interest becomes to great? Or are they supermen who can easily separate such concerns?

(31) salaryman made the following comment | Oct 19, 2005 2:26:05 PM | Permalink

I'm not sure having a subordinate vet his boss for a promotion is all that much of an improvement over having the boss vet herself.

That said, Bill Kelley sounds better qualified for the Supreme Court than Harriet Miers, given that he was Supreme Court Editor of the Harvard Law review, served as clerk to judge Ken Starr and Justices Burger and Scalia, worked as a trial and appellate litigator at two major law firms, served as assistant Solicitor General and became professor of constitutional law at a reputable law school.

Contra Mr. Grey's comment, while Mr. Kelley looks like a "top 1%" guy (or at least something close to it) to me, Ms. Miers simply does not.

(32) molly bloom made the following comment | Oct 19, 2005 4:11:32 PM | Permalink

RE: Harriet's suspension-
Its been on the news and in all the papers.

but for the google chanllenged

and here is a specific link from a generally reliable paper with a Reuters wire service story straight from the horse's mouth:

U.S. Supreme Court nominee Harriet Miers told the U.S. Senate Tuesday her ability to practice law in the District of Columbia was briefly suspended this year because of nonpayment of bar association dues.

“Earlier this year, I received notice that my dues for the District of Columbia Bar were delinquent and as a result my ability to practice law in D.C. had been suspended,” Miers said in submitting written responses to a broad-ranging questionnaire from the Senate Judiciary Committee

Now back to my question.

Does the Texas bar require members to report suspensions from other bars and does Beldar or anyone else know if Harriet reported it to the Texas Bar?

(33) molly bloom made the following comment | Oct 19, 2005 4:11:56 PM | Permalink

RE: Harriet's suspension-
Its been on the news and in all the papers.

but for the google chanllenged

and here is a specific link from a generally reliable paper with a Reuters wire service story straight from the horse's mouth:

U.S. Supreme Court nominee Harriet Miers told the U.S. Senate Tuesday her ability to practice law in the District of Columbia was briefly suspended this year because of nonpayment of bar association dues.

“Earlier this year, I received notice that my dues for the District of Columbia Bar were delinquent and as a result my ability to practice law in D.C. had been suspended,” Miers said in submitting written responses to a broad-ranging questionnaire from the Senate Judiciary Committee

Now back to my question.

Does the Texas bar require members to report suspensions from other bars and if so does Beldar or anyone else know if Harriet reported it to the Texas Bar?

(34) David Rogers made the following comment | Oct 19, 2005 4:41:35 PM | Permalink


Harriet Miers advocated race and gender preferences long before the Grutter brief -- she voted for preferences when she was a member of the Dallas City Council and she voted for lowered standards for the fire department in order to change the gender and racial composition of the Dallas Fire Department.

In the words of the Dallas Morning News: "Miers was one of 10 Dallas council members to unanimously approve a 1989 agenda item that revised minimum height, weight and vision requirements for Dallas firefighters to facilitate "promotion of certain ranks in the Fire Department," particularly women.

The agenda item's title: "Implementation of Fire Department Affirmative Action Plan.""


You know about this. You commented on this on Patterico's blog when he pointed it out, and it is frankly disingenuous of you to pretend otherwise.


As for the issue of her vetting being different from (and inferior to) the vetting of other candidates (e.g., John Roberts), I'll just quote this from today's USA Today, cross-posted on NRO's The Corner by NR editor Rich Lowry.

"Documents released Tuesday by the Senate Judiciary Committee reveal that the Bush administration's vetting of Supreme Court nominee Harriet Miers was controlled by a few insiders, a stark contrast to what Chief Justice John Roberts experienced as a contender for a court seat two months earlier.

On a questionnaire from the committee, Miers — the White House counsel and a longtime friend of President Bush — gave new insight into how she was chosen by Bush after she initially helped lead the search for a successor to Sandra Day O'Connor.

Miers, 60, said that during the two weeks before Bush nominated her Oct. 3, she spoke with her deputy William Kelley, White House chief of staff Andy Card and the president and learned "my name was under consideration." She said she met with Bush four times — on Sept. 21, 28 and 29, and Oct. 2 — to discuss the possibility of her being nominated. Miers said Card arranged a dinner on the night of Oct. 2 for her, the president and first lady Laura Bush.

Miers indicated she was not interviewed by several others who are usually involved in vetting Supreme Court candidates, including officials at the Justice Department, Vice President Cheney and deputy chief of staff Karl Rove...

But the process Miers described contrasts with what Roberts and other high court nominees went through in recent decades. Roberts was interviewed by Rove, Cheney, Attorney General Alberto Gonzales, Card and Cheney's chief of staff, I. Lewis Libby. Roberts also was interviewed by Miers and Kelley."

(35) Rob made the following comment | Oct 19, 2005 7:17:36 PM | Permalink

I was "suspended" for supposed non-payment to the DC bar 5 or 6 yrs back and I didn't report this to any other bar I belonged to either

It has the significance of a bookkeeping error

DC is unique among nearly all jurisdictions, in that it has bar admission via motion from other jurisdictions w/o any practice requirements.

Apparently this rule was developed due to the fact that when a Congressman moved from Congress (or staffers) -into other jobs in DC that might be practice jobs, they often lacked the normal 5 yrs of "the practice of law" (right before application) that would be a typical requisite for admission by motion in most jurisdictions

So in essence a congressman or congresswoman (and his or her staff) would arguably be penalized by working in a non-practice position in DC if and when they applied to the DC bar -whereas someone back in their home state could engage in an even minimal practice level to qualify to enter DC (assuming DC did not have this rule)

Therefore the DC bar does not have the typical practice requirements, meaning that a huge amount of members even "active" members are in non-practice situations. The net effect of all this is that the DC bar sometimes tends to have a bit of difficulty obtaining "on-time" payments from "active members" and they end up resorting to certain questionable methods of collecting those dues - e.g by claiming "suspensions" etc

The anti-Miers crowd won't get far with this one

(36) Ironman made the following comment | Oct 19, 2005 8:11:40 PM | Permalink

Once upon a time I was a municipal lawyer, and be advised the feds were all over cities in that period to stop having the local fire department for whatever reason, justified or not, being a fiefdom of white males.

Ms. Miers joined a unanimous City Council in approving the fire department hiring standards. I presume there were other dyed in the wool Republican conservatives in Dallas, weren;t there? So, unless people here think Scalia, Thomas and Roberts are all going over to the dark side en masse,(and civilization is over anyway if that happens) what is the probative value in the cited Dallas City Council vote?

(37) molly bloom made the following comment | Oct 19, 2005 9:05:54 PM | Permalink


I gather you don't know the answer to the questions of

1. whether the Texas bar requires its members to report suspensions and
2. if so did Harriet report hers.

BTW I am a member of 3 state bars and I have never forgotten to pay dues for any of the bars in 19 years.

Mere book keeping error... that kind of attitutde is not one with which I would trust funds in an escrow account...

(38) Beldar made the following comment | Oct 19, 2005 9:28:12 PM | Permalink

Mr. Rogers, my comment on Patterico's blog (IIRC) was, and my comment here is, that the data you cite aren't persuasive indications of what Ms. Miers would do if presented with a racial preferences case on the Supreme Court.

You perhaps don't appreciate the complexity of redistricting decisions at even the local city council level that is imposed upon us here in Texas through the Civil Rights Act of 1965. It does not leave a city council person anything remotely resembling a free hand, nor are the mixed political-legal decisions on those issues comparable to the purely legal questions brought to the Court.

I suggest that those who are representing to the public that Ms. Miers' involvement, if any, with the Grutter amicus brief shows that she supports racial preferences are the ones being disingenuous -- very much so.

Ms. Bloom, as I understand it Ms. Miers was continuously licensed in Texas and didn't need the D.C. license. (This by itself favorably distinguishes her situation from the Griffith nomination, and of course he was confirmed earlier this year despite his bar membership problem.) She could have cancelled her D.C. membership permanently and outright with no consequence to her other bar memberships, and in all probability it was initially obtained on the basis of reciprocity with the Texas bar to begin with. That she bothered to obtain and maintain it at all is a reflection of her general "support the profession" attitude. To suggest that this is an ethical lapse of any consequence is, I think, a huge stretch.

As for technical reporting requirements, or her compliance therewith, I don't know and I haven't looked. I'm not inclined to go to the effort, but if you'd like to, a reasonable starting place would be here. My personal experience has been that one bar association is concerned if you've been disciplined for matters involving moral turpitude or dishonesty or incompetence in the representation of a client. And reinstatements after dues or fees in arrears have been caught up are frequently retroactive. But I claim no expertise, and neither have I done any research on it. You may well be blocked from learning much about what she did or didn't report by routine privacy regulations that the State Bar of Texas enforces.

I'm sure Ms. Miers regrets the oversight. Given that she was working incredibly long days for the Nation during that time period, I'm not inclined to blow it out of proportion.

(39) Rob made the following comment | Oct 19, 2005 11:53:27 PM | Permalink

Is this the best the anti-Miers can do?

Beldar is correct since Ms Miers was at all times during the "suspension" in the employ of the federal government, her (presumptive) active membership in the Texas bar alone (or for that matter any other jurisdiction) would make irrelevant any claims that "Miers wasn't authorized to practice as a Washington lawyer", as one blog stated

In effect federal government "lawyers" are waived from the limitations, complications, and general confusion involved in apparent multi-jurisdictional practice and alleged unauthorized practice issues, in contrast to the Griffiths circuit nomination

A DC procedural "suspension" for lack of dues payment, which can come about partly by failing to be made aware of a postcard supposed 3rd notice, which then apparently provides for automatic reinstatement once the non-paying party pays the dues in arrears, is hardly comparable as Ms Molly describes, to commingling client funds.

Late dues payment and this "suspension" clearly is in the nature of a clerical error having to do specifically with the attorney, not with any clients or other 3rd parties

Moral turpitude can hardly be called into question when it is a simple fact that most of these suspensions are quickly paid, once the non-paying bar member is substantively made aware that such payment is in fact owed

(40) David Rogers made the following comment | Oct 20, 2005 12:11:38 AM | Permalink


You are evading the point. I was not discussing either Miers' vote on the change in city districting to a single-member district system (a result liberal Austin has avoided, despite being a Texas city subject to the same Voting Rights Act restrictions as Dallas), nor was I addressing whatever input Ms. Miers may or may not have had on the wrongheaded Grutter brief.

She voted, of her own free will, for a race and gender preferences program affecting the Dallas Fire Department while she was a Dallas City Council person.

You know it. And you are blowing smoke in an attempt to obscure the indefensible.

Why? Is it because a vote for race and gender preferences is fundamentally incompatible with President Bush's promise to appoint Justices in the mold of Scalia and Thomas?

You are too smart to make a mistake on this. Why do you refuse to acknowledge that this public vote, made by an elected official, without any compulsion whatsoever, is a serious reason, by itself, for any reasonable person to have serious reservations about Miers on the Supreme Court? Clearly, Miers believes that race and gender preferences pass Constitutional muster -- she voted for them before, and that is absolutely a reasonable indication that she would do again if she were on the Court.

At the absolute least, you must concede that a vote for race and gender preferences like this calls into question any claim that Miers is a conservative.

(41) David Walser made the following comment | Oct 20, 2005 2:10:17 AM | Permalink

David Rogers - Miers vote on the Dallas City Council was based, in part, on the advice from the city attorney that the changes were required by the then current federal law. I was a resedient of the Dallas area at the time. Many of us would have liked to see the city fight the feds, but it would have been a waste of tax money. Based on what courts had ruled elsewhere, Dallas was open to discrimination suits if it did not change it's policy. Failure to change it's policy would have cost the city millions of dollars.

That someone voted as Miers did tells me nothing about how he or she would rule if not bound by precedent.

(42) Beldar made the following comment | Oct 20, 2005 2:45:27 AM | Permalink

Mr. Rogers: Our discussion, sir, has become unprofitable, and my patience with your accusing me of being dishonest has ended. Your telling me what I "must concede" has become tiresome.

I've said my piece. I'll leave your comments here. I do not find them persuasive, but perhaps others will.

But I ask you, sir, to go insult someone else, or if you wish to continue insulting me, to pick someone else's bandwidth to do it on.

(43) Ironman made the following comment | Oct 20, 2005 5:43:21 AM | Permalink

I find it interesting Mr. Rogers did not address the reality based explanations for the Dallas City Council vote offered by Mr. Walzer and myself.

There's a big wide world beyond those penumbras, come visit when you get a chance.

(44) molly bloom made the following comment | Oct 20, 2005 7:52:47 AM | Permalink

Actually your projecting. I didn't accuse her of practicing law without a liscense.

I didn't accuse her of an ethical lapse, either. I asked 2 rather simple straight forward questions, which Beldar, at least, attempted answer with (to summarize): To the best of his knowledge and belief, no and no, but go look it up yourself.

For a woman who is being sold as s detailed oriented, missing important deadlines, casts doubt upon the argument. The detail orinented argument hopefully will be dropped.

I don't particularly oppose Ms. Miers. I don't really know enough about her. We have had cronies before, J. Vinson comes to mind, His tenure was mercifully (in SCOTUS years) short. Some cronies where actually pretty good- J. Robert H, Jackson, comes to mind.

I like her age, because she probably won't be on the court as long as Rehnquist was. What little I have heard or read of her writing (those letters from the Texas Bar President and those brownosers to Bush) suggests she no Robert Jackson. The ablity to think and express yourself clearly are probably the most important ones that come to mind before elevating anyone to the highest court.

On the bright side, this probably means she won't be writing any major precedents, though she may provide the vote for Scalia to do so.

All things considered, I don't necessairly oppose at her at this point. On the other hand, the leading conservative intellectuals certainly do. Bork has been, dare I say, borking her all over the place. Then there is Frum, Kristol and the rest of the conservative Best and the Brightest, whose judgment I don't trust anyway, given their track record. They too are Borking poor Harriet.

No, strategically, at this point, I don't oppose Harriet. That could change as we learn more.

(45) David Rogers made the following comment | Oct 20, 2005 10:41:20 AM | Permalink

I am curious about the "realtity based explanations" offered by Walzer and Ironman. Can either of you provide substantiation for the claim that Miers was forced to vote for race and gender preferences? Can you show me the court order, or even the threatened lawsuit? Can you provide a citation to a similar lawsuit against another city?

And even if the city were required somehow to make such a concession, can you explain why a concientious conservative would not cast a vote against such preferences, given that the result would change not one whit and the city would therefore be spared any legal consequence?

As I recall, shortly after Ms. Miers left the Dallas City Council, race preferences at the University of Texas were successfully challenged. Presumably the same 5th Circuit that ruled against the preferences in that case might have ruled against a requirement that Dallas institute preferences. Might a conservative with some spine take that course rather than ignore the originalist position (articulated forcefully by Scalia and Thomas) that such preferences violate the Constitution?

(46) Ironman made the following comment | Oct 20, 2005 11:01:50 AM | Permalink

Miers obviously voted with the other conservatives in Dallas. (Spending millions of dollars on litigation doesn't sit well with fiscal conservatives, BTW) As long as she does that on the court, what more do you want?

BTW, read this opinion and maybe the wisdom of avoiding making your fire department a litigation magnet might be apparent.


Anytime I've ever heard a client say he wanted t fight in court over "principle" I alerted the senior partner to demand a much higher retainer.

(47) molly bloom made the following comment | Oct 20, 2005 2:14:34 PM | Permalink

And the band played on...

Now I see "Attentive to Detail" Harriet also failed to pay bar dues in Texas as well.

This is lack of attention to detail or failure to properly supervise your subordinates (if that is her excuse) or both.

(48) David Rogers made the following comment | Oct 20, 2005 9:38:30 PM | Permalink


Well, that's an interesting case, but it doesn't make the case that Miers was compelled to vote for racial preferences. The case establishes that if you have a civil service examination scheme and you deliberately undermine it, you are liable to end up in Court. This cite certainly fails to establish that Miers was under any obligation to lower standards to prefer small, weak, slow, nearsighted candidates for firefighting positions.

And, as this case http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0467_0561_ZO.html makes clear, enacting a voluntary preference program for firefighters can make you a target for litigation, which, like the city in this case, you may lose. Miers' decision to vote for the preferences in this case cannot, therefore, be justified on economic grounds.

Also, of course, at roughly the same time the University of California banned race preferences in admissions; this was followed up by a statewide ban on preferences, enacted by voters in a state far more liberal than Texas. Is it asking too much for a so-called "conservative" Dallas City Council member to be as conservative as California's majority?

Miers may be many things, but an orginalist who, like Thomas and Scalia, understands the Constitutional prohibtion on race and gender preferences she is not.

(49) Ironman made the following comment | Oct 20, 2005 11:29:55 PM | Permalink

David, you are wealthier than I. I cannot afford my town spending huge sums on lawyers over whether a couple of more white men are firemen as opposed to minority and female applicants. Perhaps you and your neighbors would rather pay for lawyers than firefighters. It was not irrational for politicians in Dallas to reach a contrary result.

BTW, usually I find "Orignalism" used to justify irrational results. You're not selling me on the concept. Are you one of the bow tie crowd you claimed Roberts was a crypto liberal?

(50) David Rogers made the following comment | Oct 21, 2005 10:47:31 PM | Permalink


My point is that in implementing a preferences program, you run a substantial risk of litigation and a substantial risk of loss. I am unaware of any evidence that Dallas faced a risk of litigation if it did not implement a preference program for small, weak, slow, nearsighted firefighters.

I wasn't trying to sell you or anyone else on Originalism -- but the president apparently is sold on the principle, and he has pledged repeatedly that he will appoint Originalist judges in the mold of Scalia and Thomas. Both Scalia and Thomas recognize that prefences run afoul of the Constitution -- Miers appears not to. This suggest that Miers is not an Originalist.

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