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?