IT'S BEEN A BAD WEEK for the Bush administration--but, in a way, a not-so-bad week for American conservatism. George W. Bush's nomination of White House Counsel Harriet Miers to the Supreme Court was at best an error, at worst a disaster. There is no need now to elaborate on Bush's error. He has put up an unknown and undistinguished figure for an opening that conservatives worked for a generation to see filled with a jurist of high distinction. There is a gaping disproportion between the stakes associated with this vacancy and the stature of the person nominated to fill it.
But the reaction of conservatives to this deeply disheartening move by a president they otherwise support and admire has been impressive. There has been an extraordinarily energetic and vigorous debate among conservatives as to what stance to take towards the Miers nomination, a debate that does the conservative movement proud. The stern critics of the nomination have, in my admittedly biased judgment, pretty much routed the half-hearted defenders. In the vigor of their arguments, and in their willingness to speak uncomfortable truths, conservatives have shown that they remain a morally serious and intellectually credible force in American politics.
One should add that some of the defenses of the president have been spirited as well--and in fairness to the defenders of the Miers nomination, they really were not given all that much to work with by the White House. Consider this game effort from one former Bush staffer:
Well, it can be said, such anecdotes speak to the character of the nominee. And in matters of justice, character counts.
So what now? Bush has made this unfortunate nomination. What is to be done? The best alternative would be for Miers to withdraw. Is such an idea out of the question? It should not be. She has not aspired all of her life or even until very recently to serve on the Supreme Court. And her nomination has hurt the president whom she came to Washington to serve. Would a withdrawal be an embarrassment to the president? Sure. But the embarrassment would fade. Linda Chavez at the beginning of the first term, and Bernard Kerik at the beginning of the second, withdrew their nominations for cabinet positions and there was no lasting effect. In this case, Miers could continue to serve the president as White House counsel. The president's aides would explain that he miscalculated out of loyalty and admiration for her personal qualities. And he could quickly nominate a serious, conservative, and well-qualified candidate for the court vacancy.
Failing that, we are headed towards hearings that will in no way resemble the recent triumph of John Roberts. These hearings will not be easy for Miers, as she will have to at once demonstrate a real knowledge of constitutional jurisprudence, reassure conservative constitutionalists, and presumably placate Democrats as well. Conservative senators will for the most part withhold judgment until the hearings are completed. Many have already said as much, leaving open the possibility of a no vote in the event things do not go well. It would be awkward, of course, if a combination of conservative and Democratic votes defeated Miers. But this is a moment where it is more important that conservatives stand for core principles than that they stand with the president.
It may be--we can certainly hope--that Miers will be very impressive and that conservatives can support her in good conscience. But if not, they will be doing a favor to the conservative cause, the Republican party, and--believe it or not--the final three years of the Bush administration by voting no on Miers's confirmation. Conservative congressional opposition to the 1990 budget deal was a key to Republican success in 1994--and the absence of such opposition would not have helped the first President Bush in 1992 anyway. Conservative opposition to Nixon's policy of détente was crucial to laying the groundwork for Ronald Reagan's success in 1980--and didn't appreciably hamper Gerald Ford's already uphill struggle in 1976 in any case. This is a time when loyalty to principle has to trump loyalty to the president.
President Bush's nomination of Harriet Miers was an out-of-the-blue act of loyalty to a longtime staffer. Is it too much to hope that she might reciprocate by withdrawing, thereby sparing her boss the chance of lasting damage to his legacy that her appointment to the Supreme Court may well represent?
For FReepers, knowledge is power.
From Beldar Blog:
A Westlaw romp through Harriet Miers' record
Critics of SCOTUS nominee Harriet Miers make much of the fact that she hasn't argued a case in the United States Supreme Court. And in fact, they've been pretty harsh, some of them, in characterizing her record as a practicing lawyer.
What's up with that? Anything to it? Well, heck, let's find out — shall we? Ever since Al Gore invented the internet, we've been living in the Information Age, so let's get some information!
A search on Ms. Miers' name, run in a Westlaw database containing both state and federal court reported decisions from Texas, pulls up 19 separate cases dating back to 1974 in which she's appeared among counsel of record.
Eight of those represent not appeals, but published opinions written by federal district judges. But such opinions are generally only published when the authoring judge recognizes that his ruling constitutes an important or new precedent, and they usually reflect a level of briefing by the litigants and writing by the judge that's essentially indistinguishable from an appellate proceeding. Another four are decisions from various of the intermediate-level appellate courts in Texas. The remaining seven are published opinions from decisions in the United States Court of Appeals for the Fifth Circuit.
Now, the way these things work, this database won't show any of the state-court cases that Ms. Miers has handled, even if they were tried to a verdict, unless one side or the other took an appeal. (Texas state-court trial judges don't publish written opinions, and don't very often write them at all.) And this database almost certainly won't show but a tiny fraction of the cases she worked on that settled before trial, which is what happens to 95+ percent of all cases everywhere. So there are are definite limits to what we ought to expect from this romp. At best, it's going to give us her appellate cases, plus a tiny snapshot of a few trial court matters. She's mostly been a trial-court lawyer, not an appellate specialist like John Roberts, so this search is going to leave out anywhere from, I'd guess, at least 50 maybe up to 90 percent of her actual career experiences.
Still, it ought to be interesting to look at these cases. Just for grins.
Since so many of Ms. Miers' critics are painting these really broad caricatures of her anyway, let's start with her work for The Mouse. In Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25 (Tex. App.—San Antonio 1998, pet. dism'd w.o.j.), the key issue was whether a wholly owned Disney subsidiary incorporated in Delaware could be subjected to the personal jurisdiction of the Texas courts. That in turn took the case into a thicket of both constitutional and nonconstitutional issues — including an analysis of whether there were sufficient "minimum contacts" between the subsidiary and Texas so that the Due Process Clause of the Fourteenth Amendment would not be violated by forcing that subsidiary to respond to a lawsuit in the Texas courts. And that in turn depended on a complicated mix of factual and legal issues involving both agency and contract law. Ms. Miers lost on the personal jurisdiction issue at the trial court level, but then took an extraordinary interlocutory appeal, and won in the San Antonio Court of Appeals. Although her opponents tried to persuade the Texas Supreme Court to hear the case, Ms. Miers apparently persuaded that court to decline to hear it on jurisdictional grounds — meaning, in all probability, that she filed a persuasive brief in the Texas Supreme Court, and then did not have to appear for oral arguments on the merits (and risk losing) precisely because her brief was so persuasive.
(Now how stupid was that, writing such a good brief? Sheesh. If she'd just blown it, and as a result the Texas Supreme Court had taken the case, then she could tell all her critics now that she'd at least argued a case in the Texas Supreme Court. No foresight, this Miers woman. Altogether too focused on what her clients' needs are. How's she ever going to get ahead in the grand game of Beltway Lawyer-Snark if she acts like that?)
Well, anyway: How big a challenge was this case, then? What does it say about Harriet Miers and her intellect and her skills? Some may say that this was "meat and potatoes" stuff, even on the constitutional issues, and it's not the sort of case that was likely to make it all the way to the U.S. Supreme Court. But nevertheless, it obviously was complicated enough to perplex the trial judge, who (according to the appellate court) got it wrong. It was a close enough case that Ms. Miers' opponents thought they had a shot at getting the Texas Supreme Court to hear it, even after losing at the court of appeals level. The facts and law were complicated enough that this case would have made a reasonably good law school exam question. And I'm reasonably sure that to Ms. Miers' corporate client, getting this six- or maybe seven-figure fraud case thrown out of what it would have regarded as a hostile, pro-plaintiff venue — the famously dusty streets of Laredo in Webb County, Texas — was a pretty significant victory.
But what do they know? They're just cartoons and stuff.
From the Mouse on to Bill Gates: Another recent case on the list is Microsoft Corp. v. Manning, 914 S.W.2d 602 (Tex. App.—Texarkana 1995, pet. dism'd), which was an appeal from a state-court ruling that had granted the plaintiffs' motion for class certification, again in a rural Texas county that I'm sure Microsoft was very wary of being sued in. This case turned on cutting-edge issues, including the interplay between state and federal class action laws, that are currently the subject of heated tort reform debate at both the state and national level. And while much of the law was strictly procedural, some of it also got into federal constitutional issues involving the Due Process Clause and the Full Faith and Credit Clause. The plaintiffs' counsel in this case (some very sharp lawyers with whom I'm acquainted) were extremely formidable, and although I don't know what ultimately happened after this appellate opinion against Microsoft was issued, my guess is that the case settled pending further appeals.
"Okay, Beldar," you say, "But what was the case about?"
Well, the case was fiendishly complex both factually and legally, as it involved alleged violations of a host of confusing, potentially competing state and federal consumer laws in connection with Microsoft's upgrade from MS DOS 6.0 to MS DOS 6.2. Now, the geeks among my readers will, as I did, immediately say "Ooooh! Wow!" — but for the benefit of the rest of you, let me point out that as of the early 1990s, anything involving Microsoft's MS DOS operating systems would have been extremely important to that company, touching on the core business on which that company was built. So, friends and neighbors, this was serious, complicated, challenging commercial litigation that many firms would never dare undertake, for a client even fewer firms could ever hope to land. And it was the kind of case that might eventually have beaten the odds and made it up to the U.S. Supreme Court, depending on how things broke. Neither John Roberts nor any lawyer I know, including lawyers in DC or NYC, would have turned up his nose at this case.
But it's no big deal, probably. I mean, look at the client's name. "Micro." Like little, tiny. And "soft." So it couldn't really have been a big, hard case, could it?
On with our tromp through the cases, but let's try to pick up speed. Here's another intermediate Texas appellate court decision, this one involving a commercial dispute over a foreclosure on a deed of trust note. It's the kind of fight that quickly makes most folks' eyes glaze over — unless it was your $2,235,077 bid that was involved, maybe. Ms. Miers won this one.
Another involves the priority of various state lien laws, with a mid-six-figure judgment at stake. Another win for Ms. Miers, ho-hum. This is getting really too predictable.
Then there's a federal case, a Fifth Circuit appeal involving allegations of real estate fraud in a $165 million condo tower deal. No constitutional issues involved, so I guess handling this case counts for less than nothing to Ms. Miers' critics.
And so it goes. As I'm skimming through these cases, I always look to see who Ms. Miers' opposing counsel were. They're mostly names that are familiar to me, which isn't a surprise, since they're also among some of the best lawyers and law firms in Texas. And some of these cases do look as dull and dry as desert sand, except there are always big bucks involved, and often some wicked-complicated legal stuff.
But some of them look pretty exotic. Here's one involving a fight over whether the State of Texas could obtain copies of investigation materials from an ongoing federal criminal grand jury's probe of possible antitrust violations in the prestressed concrete industry. There were probably only a few dozen careers on the line over that, maybe a few tens or hundreds of millions of dollars, with of course the Texas Attorney General and the U.S. DoJ involved, and it looks like a parallel case was going on in Illinois that did in fact make it to the Supreme Court while this one was still kicking around the Fifth Circuit. Looks like Ms. Mires just missed a shot at a Supreme Court appearance there by the skin of her teeth. She won again, though. Bor-ing.
Oh, wait. Here's one that doesn't seem to fit with the rest. A Fifth Circuit appeal — Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981), cert. denied, 455 U.S. 912 (1982) — involving a denial of Social Security benefits to an indigent and ill single mother. No big bucks there, how the heck did Harriet Miers get into this case, fighting the Department of Health and Human Services on behalf of some nobody?
Ah, well, here's a clue. The very first words of the opinion read: "Now ably represented by volunteer private counsel, obtained through a community legal aid service ...." This was a pro bono case then.
So Harriet musta been hangin' out down at the legal aid clinic, just like Meadow does on The Sopranos. That's kinda cool. But to no ultimate avail, it seems: "Like many who appeal negative Social Security decisions, Mrs. Ware is now undeniably ill and may indeed be unable to work, but, fettered by the bonds that the Act places on judicial review, we conclude that the district court properly denied her relief and we affirm the judgment." Touched their hearts and drew their admiration, Harriet Miers clearly did, but she couldn't get this panel — comprising in my opinion three of the finest judges ever to sit on the Fifth Circuit, the judge for whom I clerked, now-Chief Judge Carolyn King, plus Tom Gee and Alvin Rubin, tough graders all — to bend a harsh administrative law out of shape. Funny, that, how Judge Rubin still went out of his way to compliment Ms. Miers. Because, like, she was just a loser, you practically could see the thumb and forefinger-L on her forehead, couldn't you? Don't you think the judges shoulda seen that?
One little bit more about this case: If you aren't up on your citation form, here's what that "cert. denied" notation means: After losing in the Fifth Circuit, Harriet Miers apparently petitioned the United States Supreme Court to hear the case. But the Supreme Court wouldn't hear it; the odds of it actually taking a Social Security benefits denial case were, oh, about 603,209,214-to-1. Oh, well, trash this case then — it just doesn't count, 'cause Harriet Miers has never actually argued in the Supreme Court, y'know, and this couldn't possibly have anything to do with her qualifications as a Justice. What kind of law nerd would try to take some sick mommy's case all the way to the Supreme Court? Like Nina Totenburg woulda bothered to talk to her anyway if they'd taken the case, huh? Waste of time, waste of time.
Now here's another pro bono court-appointed appeal in a Fifth Circuit criminal case, Popeko v. United States, 513 F.2d 771 (5th Cir. 1975). Interesting how these federal judges seem to be turning to her when they have an unusual or exceptional case that needs really creative lawyering, even if it's not going to produce a fee. Case like that probably means lost fee revenues for her firm in the five or even six figure range (time spent that otherwise might have been billed to Disney or Microsoft, doncha know). But she takes 'em anyway. Guess that shows she's not very sharp, just giving away her work for free.
And last, there's Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex), aff'd mem., 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001). It appears that Harriet Miers, on behalf of candidate and President-Elect George W. Bush, became one of the country's exceedingly few lawyers ever to handle a case involving the Twelfth Amendment. (How many Twelfth Amendment cases have John Roberts, Larry Tribe, and David Boies collectively handled? Why, I believe that number would be ... zero!)
Twelfth Amendment to what, you ask? It definitely looks like they're talking about the U.S. Constitution.
You remember that one, doncha? "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves[.]" Gosh, that might have been embarrassing! Win in the Supreme Court in Bush v. Gore, then have another federal court rule it was all for naught if both Bush and Cheney were held to be inhabitants of Texas? Ouch.
I wonder: Who was on the other side of Ms. Miers in that case? Who was trying to undo the 2000 election with this Twelfth Amendment argument? Hmmm — hey, I recognize this guy too: Sandy Levinson. He's only the "W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law" at the University of Texas School of Law. (Translation: heap big professor-guy.) "[A]uthor of over 200 articles in professional and more popular journals." Been a visiting prof at some other pretty good law schools: Harvard, Yale, New York University, and Boston University law schools. Co-author of a leading constitutional law casebook. I actually sorta know Prof. Levinson. Had him for a class, and I edited a book review he wrote for the Texas Law Review; I liked him a lot, and he's definitely one of the national stars on the UT-Law faculty. (I think he blogs some too!)
I suppose that would also make him one of those grand constitutional scholars who spends pretty much all of his time thinking about questions of great pith and moment. You know, the kind of superior, intellectually powerful, big-leagues lawyer that Harriet Miers ... obviously just isn't.
"So tell us, Beldar," you plead, "How'd that case turn out? Did Prof. Levinson save the day for either Al Gore or Joe Lieberman by keeping the Texas electors from voting for both Bush and Cheney?"
Well, the short answer, friends and neighbors, is that Harriet Miers just flat out kicked the distinguished Prof. Levinson's butt in court. On just about every issue, too. And she did it not once, not twice, but three times: federal district court, then again on appeal in the Fifth Circuit, and then again in the U.S. Supreme Court — another one of those "cert. denied" notations.
You ask breathlessly: "But is that 'cert. denied' really a win?" Why yes, friends, it surely is. Because, you see, when you've won in the lower courts, then your job as a lawyer is to persuade the Supreme Court not to take the case. Which is exactly what Harriet Miers did here — after first winning so convincingly in the federal district court that the Fifth Circuit, on the way up, didn't even bother to write an opinion of its own.
Of course, if she'd failed in that effort, and the Supreme Court had granted certiorari, then she'd have probably gotten to do an oral argument in the Supreme Court. Hey, I guess then her detractors couldn't have made that particular argument for why she's so unqualified for the Supreme Court bench, huh? "She's never argued in the Supreme Court, she's such a light-weight, nyah-nyah!" Well, no, she was so good in this case that she didn't have to. But I don't suppose her detractors are going to choke on that bit of irony, are they? Because this was actually just another missed opportunity for Ms. Miers; I think we've pretty well established now that she's never going to cut it as a Beltway Lawyer-Snark Player.
After all, Harriet Miers is just a "third-rate lawyer" from "an undistinguished law firm" who's never handled any big cases, hasn't got any appellate experience to speak of, and has never, ever done anything involving really hard or important stuff like constitutional law. She's just an unqualified crony. Fetches Dubya's coffee. There's just nothing in her record, no meaningful achievements, to distinguish her from a million other lawyers in the country.
Everyone says so. I read it today in the Washington Post! So it must be true, huh?
Yes, hsalaw, you are absolutely correct. Movemement conservatives just don't understand people in the real world. What the "movement conservatives" want are pretty words to be implemented by the lumpen proletariat.
Thank you AliVeritas and Beldar Blog. A great post!