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Friday, October 07, 2005

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?

Posted by Beldar at 03:08 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to A Westlaw romp through Harriet Miers' record and sent a trackback ping are listed here:

» Bush Defends Court Pick, Iraq Progress from Unpartisan.com Political News and Blog Aggregator

Tracked on Oct 7, 2005 5:16:32 PM

» LAW: The Miers Files from Baseball Crank

Tracked on Oct 7, 2005 11:29:28 PM

» Blogworthies LXXI from The Blog from the Core

Tracked on Oct 8, 2005 7:28:53 AM

» Links and Minifeatures 10 08 Saturday from Searchlight Crusade

Tracked on Oct 8, 2005 12:29:18 PM

» Examining Miers Public Legal Record from California Conservative

Tracked on Oct 8, 2005 12:36:18 PM

» A Westlaw look at Harriet Miers from Squiggler

Tracked on Oct 8, 2005 7:40:10 PM

» Miers May Care About Black People from De Novo

Tracked on Oct 8, 2005 11:37:19 PM

» The most signifigant Mier's question in all of blo from Inside Larry's head

Tracked on Oct 9, 2005 8:04:01 AM

» The Miers Record from Chateau D'If

Tracked on Oct 9, 2005 9:37:36 AM

» Thomas Sowell on the Miers nomination from Sister Toldjah

Tracked on Oct 9, 2005 11:23:33 AM

» Miers and Affirmative Action from protein wisdom

Tracked on Oct 9, 2005 2:22:04 PM

» Meanwhile, Beldar Actually Looks . . . from The Hedgehog Blog

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» Bork: Not Miers from baldilocks

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» Bork: Not Miers from baldilocks

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» Miers -- To The Heart Of The Matter from Blogotional

Tracked on Oct 10, 2005 7:44:25 AM

» Why Bush Nominated Miers from I love Jet Noise

Tracked on Oct 10, 2005 1:25:14 PM

» Malkin In The Middle from Don Surber

Tracked on Oct 12, 2005 1:27:20 AM

» The Big Bloggers from Kerfuffles

Tracked on Oct 12, 2005 8:56:50 AM

» LAW: Not A Good Sign from Baseball Crank

Tracked on Oct 12, 2005 2:19:00 PM

» A Westlaw look at Harriet Miers from Squiggler

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» (Mostly) Men Behaving Badly from Three Years of Hell to Become the Devil

Tracked on Oct 15, 2005 4:38:50 PM


(1) Crank made the following comment | Oct 7, 2005 3:59:19 PM | Permalink

I guess I was premature to comment on the published-opinion issue on the last thread before reading this post. I still don't think 19 published opinions is a lot for 30+ years as an attorney, even if you've had a lot of cases in state trial court, if what you are trying to demonstrate is facility with complex legal questions - nothing that distinguishes her from thousands of big-firm practitioners at law firms accross the country, including some people who are good at signing their names to briefs well written by junior lawyers.

(2) Eh Nonymous made the following comment | Oct 7, 2005 4:06:28 PM | Permalink

Beldar: first rate. Also, kick ass.

You are my favorite commenter on the Miers issue in the entire blogosphere - nay, in the whole panopti-media-graphical galaxy.

As I snarked recently, if people can't stop focusing on "facts" and "reality," how are we ever going to avoid coming to a supportable conclusion and losing our irrelevant and wrong opinions?

(3) Simon made the following comment | Oct 7, 2005 4:07:52 PM | Permalink

Cute and nobly done, Beldar, but even from your descriptions it sounds like those cases -- while sometimes involving complicated factual questions -- weren't for the most part on the cutting edge on legal questions, including Sandy's rather quixotic attempt to get Cheney disqualified.

If these sorts of numbers games interest people, for a point of comparision Robert B. Fiske, Jr., of Davis Polk & Wardwell, shows up in 905 reported Westlaw decisions at all levels (including the US Supreme Court) of the federal judicial system, and in 22 decisions published by state courts.

I'd summarize them all now but I have to meet some friends for a drink. Maybe I can get to it this weekend.


(4) Patterico made the following comment | Oct 7, 2005 4:17:58 PM | Permalink

Sounds like she's been a pretty good lawyer.

However, I think it would be pretty interesting to see a romp through Thurgood Marshall's history as a lawyer. I can think of one big win of his that puts all of Ms. Miers's wins to shame.

Crappy Supreme Court Justice though.

That doesn't mean she would be. But, while your post does a good job of convincing me to hire her to conduct my business litigation (if I had any), I continue to be substantially unreassured concerning what kind of Justice she'd be.

(5) Beldar made the following comment | Oct 7, 2005 4:25:11 PM | Permalink

Fiske was the U.S. Attorney for the Southern District of New York for four years, and an AUSA for another four years. While he was US Attorney, his name got signed to every brief and every motion filed by or on behalf of the United States in Manhattan. And he hasn't even broken 1000? I'm not saying he's not a great lawyer. But please don't suggest that having your name in a word processor macro is the same as actually personally lawyering all of those cases.

Miers, of course, has been criticized for refusing to delegate in the White House and correcting grammar and spelling, marking up papers, obsessing. Now of course she's criticized here with speculation that she's taking credit for others' work. Obviously, I was not looking over her shoulder while she worked on these cases. But I will tell you that in my experience, Texas firms are far, far less promiscuous about putting names on pleadings and briefs of lawyers who haven't worked on them than lawyers on either coast, and of course the Gumm'nt is the most promiscuous of all at doing that.

I guess a case of first impression on an Amendment to the Constitution that could reverse a presidential election isn't "cutting edge" enough for you guys.

One case of the complexity of that Microsoft case could easily eat two or three years out of a lawyer's practice.

It's quite obvious that nothing can satisfy some people. I'm working hard not to get annoyed by that. But that's a real challenge.

(6) Michael B made the following comment | Oct 7, 2005 4:41:40 PM | Permalink

Cogent and admirably done, don't mind admitting it.

(7) Crank made the following comment | Oct 7, 2005 4:48:56 PM | Permalink

Look Beldar, I'm not saying tough commercial cases aren't intellectually challenging - I'm a securities/commercial litigator by profession myself, and I know. If she really is the top-flight commercial lawyer you are making her out to be, that should ease my concerns, although we should note that it doesn't distinguish her from thousands of other lawyers of equal skills in that regard.

I'm just saying there are also successful commercial litigators who really aren't that great with the law, I'm not sure we have enough on Miers in her own words to be reassured that she won't be a sloppy, plodding or indecisive Justice of the type we've had a few too many of, and I'm not all that impressed by what seems like a fairly small number of published opinions for somebody with a long career in this area (even granting that state courts in Texas don't publish opinions as often as, say, federal district judges in New York do). I can still be sold on Miers' qualifications, but we're not there yet.

(8) John W made the following comment | Oct 7, 2005 4:51:24 PM | Permalink

Beldar, I will get irritated for you. I am pretty sure that people would not be criticizing Miers like they are if she had gone to an Ivy League law school and been managing partner of a first tier NYC firm. But to me, her resume is the equivalent of that (I admit, even as an SMU Law grad, that SMU isn't Yale - but the top students at SMU are comparable to the top students anywhere, as is true for all reputable law schools). And when you factor in that she was the first woman to do those things, her resume is even more impressive. People don't understand what it was like for a female lawyer to get hired by a big Dallas law firm in the early 70s. Several women law students from SMU had to sue the big Dallas firms to force them to hire women lawyers, and, if my timeline is correct, Miers was hired by Locke before that lawsuit.

(9) Crank made the following comment | Oct 7, 2005 4:57:58 PM | Permalink

Or let me put this another way, Beldar, in terms I would expect you to agree with. Haven't you ever been in a case with lawyers - as adversaries or co-counsel - who had big names, long track records of success, and big bank accounts, and discovered that their briefs or their arguments in court were sloppily reasoned and poorly presented? I sure have. If Miers had been a judge or academic (or blogger) for ten years, we could read her stuff for ourselves and judge. But the simple fact that she's won a handful of complicated cases in 30+ years and moved up the professional ladder isn't proof enough by itself.

(10) crazy made the following comment | Oct 7, 2005 4:58:44 PM | Permalink

Facts are stubborn things even when they get in the way of one's opinion.

Thanks Beldar for putting out so many facts. It's sad to see so many acting so foolishly just because they didn't get the big battle they've been waiting for.

How many of Ms Miers critics would be qualified for their own jobs if they were measured by the standard they're using to prejudge her?

(11) Michael B made the following comment | Oct 7, 2005 5:10:26 PM | Permalink

John W, her personal bona fides are interesting and well worth noting, but forever invoking the anti-elitist charge isn't going to work. This post takes some solid steps in the right direction but it doesn't, in full, answer the concern noted in a comment in the prior thread. (And the notion that raising some valid, highly specific concern is tantamount to dismissing Miers more generally is a strawman retort at best.)

A very good weekend to all.

(12) hunter made the following comment | Oct 7, 2005 5:15:40 PM | Permalink

All these pesky facts. Frankly I do see the weight of fact finally getting a lot of people to think twice, if not more. We should see this inernicine fight die down just in time for the dems to realize they had better rally fast to stop a very conservative, very effective, new SCOTUS AJ get voted in, and then the real fight begins: dems vs. Republicans. But I think the gang of 14 has been effectively flanked in this, and even McCain will have trouble messing this up.
I think she will be approved, 66-38, with most dems going against her.

(13) Beldar made the following comment | Oct 7, 2005 5:16:49 PM | Permalink

Crazy, your comment plays into what I just reminded myself, which is this:

I will certainly fail at persuading everyone to come around to my own opinion. Some aren't really listening, others have contrary ones for reasons I understand and respect even if I don't agree.

If I can correct even some of the nasty, nasty factual errors that spread in the first six hours after this nomination went public, that will be a worthwhile task. If I can also share some other objective, factual information that at least some others will take into account as they reconsider their own opinions, then I will have accomplished something very worthwhile indeed.

For now, though, it's time for me to step away from the keyboard for a while (at least a few hours). My apologies if my grumpiness has offended anyone; I genuinely am not trying to squelch civil yet dissenting viewpoints.

(14) John W made the following comment | Oct 7, 2005 5:25:17 PM | Permalink

Michael B, good weekend to you too. Your concern from a prior thread is valid, and you are right raising it is not tantamount to dismissing Miers generally. But I believe that others are dismissing her in a general way based on her resume, which, not to beat the elitism dead horse (and this is my last post as I have to get to Texas-OU festivities), I find baffling based on what I find to be the strength of her resume.

(15) Crank made the following comment | Oct 7, 2005 5:30:33 PM | Permalink

Have a good weekend, Beldar. I do think you've raised a genuine issue of material fact here, I just don't think you've got the goods to support summary judgment for your side on the qualifications issue ;) So we go to trial.

(16) Patterico made the following comment | Oct 7, 2005 6:00:41 PM | Permalink

Hey, I am finally hearing Beldar on Hewitt -- right now! (He's got a little accent on him!) Awesome stuff. Excellent presentation, Bill.

(17) Patterico made the following comment | Oct 7, 2005 6:14:24 PM | Permalink

Why are we hearing this stuff from Beldar and not the Administration?

(18) Roach made the following comment | Oct 7, 2005 6:35:03 PM | Permalink

Well done. She's obviously a capable, commercial litigator. But, frankly, partners involved in firm administration don't do much of anything, and they tend to gravitate in that direction because of their lack of facility with legal work, such as writing briefs and the like.

(19) AST made the following comment | Oct 7, 2005 7:11:58 PM | Permalink

Great posts, Beldar!

I'm so glad that there are bloggers around to challenge the Easter Conservative Media Establishment.

I have never been so angry and offended in my life than by NRO, George Will and Charles Krauthammer. I'm not a great blogger, but I've made the same points as you and Hugh Hewitt and HedgehogBlog. It's gratifying to find myself in good company.

I've been a practicing attorney since 1977. It broke my health. I am disgusted by jerks who think that because I didn't spend my time submitting pontifications to law reviews, I don't understand the Constitution.

You don't have to know that much to know that courts are not policymaking bodies. That's really all it takes. I'm sure that Ms. Miers is more than fully qualified to handle all the intricacies of federal legislation and the Federal Register just fine.

Personally, I think the court is in such a mess today is because it has become enthralled to the intellectual fallacy, that only those who can occupy themselves contemplating angels dancing on the head of a pin are qualified to be our ultimate masters.

(20) David made the following comment | Oct 7, 2005 9:11:43 PM | Permalink

Bedlar, as far as I’m concerned you’ve won your case with me vis-a vis Harriet Miers’ credentials. I believe you are right in that the S.Ct. needs more judges who dwell in the real world. Justice Joseph Story, for example, was a commercial lawyer in New England and he of course turned out to be an outstanding judge. (Today he might be regarded by pre-nomination critics as a “corporate drone.”) But other character qualities are important on the bench, such as wisdom, discernment, temperament, and fair-mindedness. I have seen nothing that suggests Ms. Miers lacks any of these attributes, either.

(21) Adam made the following comment | Oct 7, 2005 9:42:03 PM | Permalink

Honestly, Beldar, was there a chance she could lose Jones v Bush, given the precedents?

(22) Richard made the following comment | Oct 7, 2005 9:56:03 PM | Permalink

Kudos on the original and thorough analysis. Thanks for the perspective.

(23) vnjagvet made the following comment | Oct 7, 2005 10:05:47 PM | Permalink

This post is a great service not only to the blogosphere, but to the country on this truly important issue.

Real and testimonial evidence trump allegations in our arena. You are supplying both kinds of evidence in abundance. This is being noticed throughout the blogosphere.


(24) Deborah made the following comment | Oct 7, 2005 10:19:10 PM | Permalink

Technically, in the case of Harriet Miers' career, it should be the grand game of "Metroplex Lawyer-Snark" rather than "Beltway Lawyer-Snark". ;)

(25) Steve White made the following comment | Oct 7, 2005 11:18:04 PM | Permalink

Crank writes, If she really is the top-flight commercial lawyer you are making her out to be, that should ease my concerns, although we should note that it doesn't distinguish her from thousands of other lawyers of equal skills in that regard.

I'm a physician, not a lawyer, but I'll turn your point on its head: Ms. Miers is apparently an excellent commercial lawyer and litigator, like thousands of other lawyers. She's qualified to be a Justice.

And so are they.

Something people seem to miss in this is that while there are only 9 positions on the USSC, the talent level required to serve effectively there is such that thousands of lawyers could do the job. There are a good many lawyers who are thoughtful, reflective, very hard workers, with sufficient intellect to dig deep into complex issues and sufficient writing skills to make their opinions clear.

You don't need to be an Ivy-league, Washington social-set, constitutional-law lawyer to serve on the USSC. We need a few of them on the Court, to be sure, but having a litigator or two wouldn't hurt either.

Balance. Again, I'm a doc, not a lawyer, and what I want in the USSC are nine people who complement each other enough so that we get good decisions. I'm certainly not blind to the politics, and in fact I count on that so ensure the Court doesn't go off in crazy directions.

Having lawyers of varied backgrounds and personalities, with the common denominators of excellence, clear thinking, clear writing, and honor, will give us a better Court than nine Con Law justices.

(26) RiverRat made the following comment | Oct 7, 2005 11:23:33 PM | Permalink


A simple question or two...

Would you hire an orthopedic surgeon to perform brain surgery?

Even the best politically active commercial ligigator in the U.S., let alone Texas, would never be hired to navigate the neuropathic highways and byways of the Constitution.

When you needed a Cardiologist did you call the Harris County Judge for recommendations?

Just Askin'.

(27) Justin made the following comment | Oct 7, 2005 11:38:24 PM | Permalink

Had Miers LOST the 12th amendment case, now THAT would have been impressive.

(28) Jim made the following comment | Oct 7, 2005 11:44:23 PM | Permalink

let's see. a texas judge, in a case involving the texas governor. Miers wins by saying the Texas governor who won the state by a vast margin should get Texas' electoral votes. Wow...well blow me over.

this still shows absolutely nothing about her constitutional philosophy, if she even has one, what she thinks of the vst array of constitutional issues, etc...

It just shows that she can go in front of a judge and convince a texas judge to give the texas governor texas' electoral votes.

(29) DC made the following comment | Oct 7, 2005 11:48:22 PM | Permalink

Nice job, Beldar ... I must say. I am not convinced about Miers, but in truth this stems from my misgivings about her philosophy and troubling signs in that regard.

Patterico makes a very interesting and telling point. Why is this not coming from the WH? The WH's inability to articulate a conservative message ... or frankly on anything has got it in a massive trust bine that it won't escape.

Plus, Robert Bork weighs in as well: The pick is a disaster. To deny even an understanding of the opposition's argument (which is so strong) means that the WH and its defenders have committed a fatal error.

(30) Jimbeaux made the following comment | Oct 8, 2005 12:01:15 AM | Permalink

I gotta agree with Adam. That Jones v. Bush deal was ridiculous. The plaintiff's case was the equivalent of arguing that a driver going 54 mph was actually speeding b/c he was only going 54 to "get around the statute." I don't blame her for winning, of course, but I bet she put a lot more work into her other cases.

(31) jim made the following comment | Oct 8, 2005 1:55:05 AM | Permalink

here's more on Miers' big case:

Mr. Aufhauser, Ms. Miers's co-counsel, suggested that whatever the 12th Amendment might have meant in 1804, the provision's meaning had, in effect, evolved with modern society. "Differences between the year 1800 and 2000 is more than two centuries, it's light years," said Mr. Aufhauser, noting the "rapidity with which each of us have changed addresses from schools and college to various marriages and jobs." That's a style of legal interpretation more commonly associated with liberal-leaning judges.

So, the constitution "evolves". if anything, this reflects even more poorly on Miers, given that she pushed an "evolving standards" argument

(32) Beldar made the following comment | Oct 8, 2005 2:41:51 AM | Permalink

RiverRat, that's a great question. I could write pages and pages about the difference between doctors and lawyers, medical education and legal education, specializations in both professions, and so on. I've actually pondered it quite a bit, because my ex is a physician and for several years taught at one of the two medical schools here in Houston, so I had lots of contacts with docs and medical educators.

The short answer is: The analogy is very weak. Physicians' practice is indeed an art form, but it is premised on a large body of very detailed, very scientific factual information. Medical school, for example, involves massive amounts of rote memorization. Yes, ultimately you're expected to use judgment in retrieving and synthesizing all those facts. But the reason I wouldn't hire a cardiologist to do brain surgery is exactly as simple as saying my heart and my brain are different from one another, and those two specialists aren't fungible, nor have they had remotely comparable training during their internships, residencies, fellowships, etc.

Very, very little of law school involves memorization by rote. And one of the most accurate and valid themes that I've seen repeated in many movies about law school (including in The Paper Chase) have had to do with how poorly someone with a photographic memory, but weak creative and reasoning skills, will do in law school. In a sentence, doctors constantly study how things actually are, while we constantly debate about how things might be or ought to be or could be if you changed one hypothetical detail. (Okay, that's an awfully long sentence.) Again, from The Paper Chase, an old comment that I believe is true: The point of law school is not to teach you the law, but to teach you how to think like a lawyer.

I've written here before that if there's one thing that law school really trains a person for, it's to be an appellate judge. Writing law school essay exams, or even answering the essay questions still common on almost all state bar exams, is functionally very much like writing an appellate opinion. I'm a trial lawyer now, but I have in my history (when I was a law clerk) written judicial opinions on everything from death penalty cases to the Commerce Clause implications of a state-run fruit stand in Georgia. The judge for whom I clerked was a corporate securities lawyer in private practice, yet within weeks after taking the bench was pumping out high-quality judicial opinions on a large range of specialty areas she'd never had any contact with in her practice.

So I have no doubt whatsoever that Ms. Miers could, and probably will, do the same. The medical specialist analogy just doesn't fit at all, but I'm glad you asked about it.

Jim, whether you intend it to be or not, your suggestion that Texas judges as a class are corrupt, and that Ms. Miers' victory in any of these cases is the product of that, is quite offensive to me. In fact, the judge in question was not an elected state-court judge, but a federal district judge with life tenure. The appeal was to the Fifth Circuit, which includes judges from Louisiana and Mississippi as well as Texas. And the cert petition was to the Supreme Court, on which no Texas-reared judge sits. I'm quite certain that Prof. Levinson would join me in rebuking you for this innuendo. You've touched a nerve, sir, at the outer boundary of what I consider to be civil discussion. Govern yourself accordingly, or find another blog on which to comment, please.

As for various commenters who've suggested this case was a slam dunk that Ms. Miers couldn't have lost: You're mistaken, as I've explained in a comment to a very interesting Orin Kerr post, written about this post, over on the VC. My thanks to both Prof. Kerr and Prof. Lindgren, who was also generous enough to link and quote at length from this post. The short version is: If this case were such an obvious loser, Sandy Levinson wouldn't have pursued it all the way through a cert petition in the Supreme Court.

(33) Paul Deignan made the following comment | Oct 8, 2005 5:08:57 AM | Permalink


Not to rain on your parade, but by the time MS DOS 6.0 was out, MS DOS was not a primary product of Microsoft--they were well on their way to Windows 95 and had already released Windows 3.1

MS DOS 6.2 was just a way to squeeze a little more revenue from the base. There were no siginificant technical developments in 6.2.

It was all about Windows, Windows, Windows.

(34) Paul Deignan made the following comment | Oct 8, 2005 5:19:33 AM | Permalink

From Wikipedia

# MS-DOS 6.0 - March 1993 - Response to DR-DOS 6.0. Added DoubleSpace disk compression (copied from Stacker) and other features

# MS-DOS 6.2 - November 1993 - Bug fix release

Meanwhile Windows 3.0 was released in 90 and 3.1 in 92. The rest is history. It was the battle with Apple over Windows that was the big deal at the time.

So, I think you might want to revise your speculation about Roberts wanting to leap on this case because if he did (and you have knowledge of the fact) it was not because it would change the face of the current technology line.

(35) Paul Deignan made the following comment | Oct 8, 2005 5:34:02 AM | Permalink

But I did think it was cute that you thought Microsoft was some hugely complex, scarey technical, beyond normal human comprehension, thing.

Its really not the complexity of the technology that is the problem, it is the fact that MS did such a crappy job documenting and laying out the product that baffled the pants off of most users. Thus we have Windows, a much more intrinsically complex product (DOS was simple from the designer standpoint. We could see and understand everything and even write our own assembly in debug line by line).


See, still scary for the user. Hope you did not spill your coffee just then.

(36) Simon made the following comment | Oct 8, 2005 6:50:35 AM | Permalink


Fair point about Fiske's service as US Attorney. But if you remove Fiske's four years as US attorney, he still breaks 100 decisions -- including at least one Supreme Court case -- with the substantial majority coming from his time in private practice and not as an assistant US attorney.


(37) Glenn made the following comment | Oct 8, 2005 7:33:36 AM | Permalink


Not to rain on your parade, but by the time MS DOS 6.0 was out, MS DOS was not a primary product of Microsoft--they were well on their way to Windows 95 and had already released Windows 3.1

Let's not forget that Windows (up until Windows 2000) was essentially a graphical shell that ran on top the DOS operating system. Windows NT was not DOS dependent, but the two were not married until Windows 2000.

If Microsoft had lost any lawsuits regarding MS DOS, it would have affected it the same way regardless of whether its primary product was Windows 3.x, Windows 95/98/ME or DOS up until the advent of Windows 2000.

(38) saveliberty made the following comment | Oct 8, 2005 9:18:16 AM | Permalink

Beldar, I have enjoyed your posts on the topic of Ms. Miers yet this item was the best yet. This plus the link that Hugh Hewitt published the other day from President Aristotle's blog really impressed me.

I have told you offline and will state it here for your readers how your efforts really won me over in supporting the nomination of Ms. Miers.

I have told friends and colleagues to read your blog, maybe not so much to be persuaded (although you do a marvellous job there) but to illustrate that there is a lot to discuss without a display of fury (a la Frum, Coulter, Will and Kristol).

I have gone into a number of jobs to address process improvement problems and have found that some very good people who are very smart and hardworking don't like to change the way things are done, even if the result may be that it's easier to do a good job.

The other prosaic analogy that I can make is that I have managed technology teams in which each tech is bright, dedicated, hardworking and an excellent individual contributor.

The operative words are individual contributor. To get these folks all on one project team demands a substantial amount of management.

I have run into situations in which all (pick any number) techs are each convinced their approach is the only way to go. It's a challenge to get people to work together without being disincented to be innovative.

So I would compare that to a panel of conservative philosopher kings who did not have a balance of personality types, experience and orientation (work related I mean). I think you pointed out very well that what Ms. Miers can bring to SCOTUS is a perspective of someone who has managed in the dreaded private sector and someone who has been answerable to a manager for working well as a team.

I love Justices Thomas and Scalia. Yet isn't it conceivable to see a panel of dysfunctional conservative philosopher kings in which say Scalia gets into a battle of personalities manifested in an Opinion with Justice "Scalia-esque"?

I sure can.

It takes a range of personalities and perspectives to create a strong and functional team. You have persuaded me that Ms. Miers is a great addition to the conservative SCOTUS justices.



(39) MKM made the following comment | Oct 8, 2005 10:25:07 AM | Permalink

Appearance as counsel of record (or even as sole counsel of record) doesn't really tell us much, as Beldar should know.

Partners take one of three different forms:

1. Partners who write their own briefs. This is a rare species of partner.

Most big firm partners command a large staff of associates (the more powerful the partner, the more talented the pool they draw). Not all of these associates appear on the briefs. In some cases, for example, the client may want to limit the names that appear on pleadings. In private practice, I wrote entire briefs in very big cases but my name didn't appear on them--only the partners on the case did. (So I wouldn't assume as much as Jim Lindgren from the fact her name is the only name appearning in Westlaw as counsel of record.)

Of the partners who don't write briefs, there are two:

2. Partners who manage big staffs but input significant editorial input. These are often partners who worked their way through the ranks by brief-writing and like to stay involved in it at the partner level, while aoviding the heavy lifting.

3. Partners who do minimal editorial work. This is far more common than is assumed: Some partners at my old firm (a big, powerful D.C. firm) were extremely well-regarded in the office and did not do jack on briefs. They brought in clients. They delegated. They had junior "service partners" (partners who donn't have the political saavy to bring in clients but are workmanlike grinds)
or trusty senior associates on the verge of partnership do the quality control. Their names went on the brief anyway.

Finally, trial litigators may use the services of appellate litigators at the appeals stage. So the fact that Miers appeals were successful may or may not credit her skills as a lawyer. She may simply have called in the cavalry. We don't really know.

(40) james23 made the following comment | Oct 8, 2005 12:31:55 PM | Permalink

I'm underwhelmed. I don't think you can make the case that this nominee stands out as a big case litigator, a la David Boies or Fred Bartlitt.

Beldar, how many significant cases has Harriet personally tried to verdict in a lead position? (name a couple of expamples) How many important appeals has she personally argued, and won? (again, please name) People who make their living litigating civil cases know the answers to these questions.

OK, 19 published opinions list HM as counsel--for 30 years work. That stat. doesn't answer the question about trials or appeals, and in any event certainly isn't more than one would expect for your average Joe or Jane Litigator.

One of the legal blogs links to the dockets of the Dallas area federal and state courts. When I checked earlier in the week, Miers’s name was showing up on less than a dozen cases in fed. and state court. That is not what you would expect to find for a busy and accomplished litigator.

It may come as a surprise to non-lawyers, but it is quite possible, common really, for lawyers to rise to leadership positions in big firms without *ever* setting foot in a courtroom. Big firm leadership more often turns on one of these factors–-administrative interest and/or skill; and control of important firm clients–-than on accomplishment in the courtroom. We do know that Miers controlled one HUGE client, maybe the biggest catch in Texas–the Bushes. That by itself could explain her position at the top of a Texas firm. And also her listing as one of the country's "most influential" lawyers.


(41) Crank made the following comment | Oct 8, 2005 1:25:12 PM | Permalink

I'd add a few questions to james 23's, and I suspect that someone, maybe Beldar, can get us the answers. Here's three:

1. How many $1 million-plus class actions has she handled?

2. How many times in the past ten years has she argued a dispositive motion or argued before a jury?

3. Did her colleagues at her firm, or clients or colleagues at other firms, regard her as an expert whose advice they sought in any area of the law? What area(s)?

(42) George Turner made the following comment | Oct 8, 2005 1:30:55 PM | Permalink

Last night I started to echo Steve White's above comment, in which he said that lots of lawyers are qualified to sit on the SCOTUS, but it evolved into its own post.

That we even allow lawyers to sit as judges is almost a historical fluke, given our ancient and natural suspicion of the legal profession.

Who really wants a brilliant lawyer on the bench instead of acting as our defence council, anyway?

In absolute terms, almost any lawyer whose been practicing for years should be qualified to sit on the Supreme Court, and is vastly more qualified than most of the early justices, who at best had a year of formal legal training under their belts, aside from just going out and practicing law.

(43) Paul Deignan made the following comment | Oct 8, 2005 1:54:13 PM | Permalink


Check the version numbers. Windows 3.1 was obviously not dependent on MSDOS 6.2.

MSDOS 6.2 was a bug fix, revenue enhancer, waste of money, dead end, etc.

(44) Don Surber made the following comment | Oct 8, 2005 8:12:44 PM | Permalink

That is a great post. When Bork dissed her, I knew she was special. I had forgotten the 12th Amen case.
Bob Bartley nailed it when he called it Beltway

(45) George Turner made the following comment | Oct 9, 2005 12:27:32 AM | Permalink

Windows was not dependent on MS-DOS 6.2 because it predates it - by 10 years, but that was just "Windows", released in 1983 (I hated it). Windows 3.0 came out in 1990, running on top of MS-DOS ver 4.0x

Windows 3.1 was released in April, 1992, and was dependent on MS-DOS 5.0

-You installed Windows from DOS back then.

MS-DOS 6.2 was released in Aug, 1993,and Windows last release, 6.22, was released in April, 1994.

MS-DOS technology (drivers, those .EXE files, etc) remain a fundamental part of Microsoft operating systems.

BTW, I still use MS-DOS 6.22 for machine control, because it's extremely stable, if somewhat limited. I doesn't go off in the weeds rethinking its file system like Unix boxes are wont to do.

There's no need to slander a dependable and profitable OS along with a USSC nominee.

(46) Beldar made the following comment | Oct 9, 2005 8:20:36 AM | Permalink

james23 and crank, I appreciate your questions and suggestions, but with due respect, I don't think they're very useful. They're the wrong questions.

Crank, one of your criteria — "$1 million-plus class action" — is just not meaningful. If you mean cases filed as class actions but never certified in which the potential damages exposure might have been more than $1 million were a class to be certified, I suppose that would be a way of classifying lawsuits, but it would not be a useful one. Anyone who can pay the filing fee or fill out a pauper's affidavit can file such a lawsuit, and the scope of the relief sought tells one nothing about how serious it is, or what the real settlement value of the case is. And if you're talking only about class actions certified and tried to a conclusion, that would be a vanishingly small number even among lawyers whose full-time practice is in class-action cases. Moreover, I reject the implied suggestion that class action cases are the only important ones, or the most important type of litigation practice. It's altogether possible that a superb courtroom lawyer might have very little class action experience, and likewise that a lawyer who does nothing but class actions might be a hopeless schmuck.

Likewise, a collections lawyer may argue fifteen dispositive motions per week; a traffic ticket specialist may try three jury trials per week. In my practice, I've had four trials on the merits in the last calendar year, two of them bench trials and two of them jury trials; but during several consecutive years before that, I had no trials on the merits. The frequency variation had nothing to do with my skills or lack thereof, but instead was a result of a huge variety of other variables so complicated as to defy any consistent pattern. But I'll also tell you that in general, the bigger and more complicated the cases you're working on, the less likely they are to be tried and the more likely they are to be settled.

And since you won't take my word for her reputation, nor that of an experienced trial judge who's seen her perform in his court before juries, I don't know why you bother to ask whether "colleagues at her firm, or clients or colleagues at other firms, regard her as an expert."

James23, as it happens, I know Fred Bartlit and even remembered the unusual spelling of his name, having studied with him during a three-week NITA seminar in Boulder, CO, in 1985. He is indeed an interesting and talented lawyer; and I think his partner Phil Beck, whom I have not met, was among the very best courtroom lawyers to participate in the televised proceedings at the state-court level in Bush v. Gore in 2000. I like Fred a lot, and learned a lot from him. I would not hesitate to refer a client to him or his firm, and in fact have done so (although that particular client found them too pricy; they are proud of their work.) Nevertheless, the thought of Fred on the Supreme Court absolutely terrifies me; he would be a bull in a china shop, and I'm not sure the Court could survive it. (And he's way too old to be nominated; I'm not sure of his exact age, but he graduated from West Point in 1954.)

Nor, I suspect, should you hold your breath waiting for a Republican President, and in particular this Republican President, to appoint David Boies to anything. And whatever happened to that ethics investigation of Boies out in Florida, d'ya know? I don't. But I hope he was vindicated and that the allegations were unfounded, because they were fairly troubling. I personally think he's very nearly a quarter as good a lawyer as he thinks he is, but that's still quite good indeed, and overinflated egos are common among trial lawyers, myself certainly included.

In any event, my argument is not that there are no more accomplished courtroom lawyers than Ms. Miers anywhere in the country, but rather that her own record, standing on its own, is exceptional and entirely in keeping with a series of other exceptional credentials. Far from being undistinguished, I believe her record amply demonstrates that she's among the country's top courtroom lawyers, but any attempt to construct a meaningful ranked, numerical list would be doomed; again, too many variables, too much subjectivity. And again, because of the limits on the information available to me online, my intention in my post here was not to present a comprehensive summary or assessment of her career, but rather to use what can be gleaned from these reported opinions to rebut some of the sweeping mischaracterizations of her record that have been circulating.

I don't exactly understand what you mean by your statement that "People who make their living litigating civil cases know the answers to these questions." I don't know the names of all of the cases in which Ms. Miers has been the first chair lawyer, nor appeals that she's personally argued, if that's what you're talking about; and neither would I expect her to know that information about, for instance, me. I have the information from Westlaw that I discussed in my post, which as I explained there, has a great many limitations due to the sorts of information collected and more importantly the sorts of information not likely to have been included. I do know the names of the cases I've tried and appeals I've argued, and indeed I have them listed with dates, court names and numbers, judge names, names of opposing counsel, litigants, type of claim, amount in controversy, and result. It runs to about 25 pages in single-space print. But I don't suppose that was what you were asking for, is it? And I simply don't know whether she has maintained that sort of information about her own career at that same level of detail.

I would not expect Ms. Miers' name to appear on many current docket sheets, given that she's not been conducting her litigation practice for about the last five years. Nor would a search of only the Dallas courts' records be likely to pick up most of her cases even when she was in a regular private trial practice, because lawyers of her caliber are frequently hired to handle lawsuits throughout the State of Texas.

(And this may be a good place to cross-post a point I made in a comment on this post over at De Novo, in which I postulated that at least one of the online data banks that have purported to collect reported opinions in which Ms. Miers was counsel of record has probably made an understandable error by including her among counsel of record for Microsoft in the the August 2005 decision in the Shaw case; they were probably going on a Lexis/Nexis list that in turn was probably gotten from a docket sheet that was probably created in 1998 when the case was filed and Microsoft answered, and that docket sheet was likely not updated to reflect Ms. Miers' departure from the case and from Locke Liddell. I think it's highly unlikely that Locke Liddell continued using Ms. Miers' name on its pleadings through 2005, as the De Novo blogger suggested (in what's a well-written and interesting post, but one I have some other quibbles with too.)

But any such statistical inquiry is unlikely to produce meaningful results. There are just too many variables that you can't adjust for. In particular, the typical trend is for lawyers to handle fewer but bigger cases as their careers progress and they rise in the estimation of their peers and their clients. One of the most esteemed lawyers I know in Texas, a former federal district judge who retired from the bench and returned to practice simply because of his love of being an advocate, spent a solid two years working full-time (and furiously) on a single case at one of my former firms. Of course, it was one of the half-dozen most consequential commerical cases then pending in Texas, but it would have looked sort of odd on your statistics table. Similarly, any attempt by outsiders to draw charts and graphs about the values of different cases is doomed to failure. The data are too subjective, and even if it weren't, the most pertinent bits (e.g., amounts paid in settlement) tend to be the subject of confidentiality agreements.

Your suggestion, too, that working for the Bush family would vault her onto the top of the National Law Journal's lists is silly.

If assessing lawyers' skills with these kind of number games were as easy as you guys' questions suggest, then a client like Microsoft would use such numbers to calculate who it should hire. As it happens, they hired Harriet Miers, repeatedly it would appear. But I'm quite certain Microsoft's decision wasn't based on an Excel spreadsheet.

It's possible, though, that Ms. Miers and her staff will compile some of the sorts of information you guys have asked about in response to questionaires and data requests propounded as part of the confirmation process. I'm disinclined to expect that such raw data will produce the sort of mathematical precision you guys seem to be seeking, and neither do I believe that such precise results would be very meaningful, or anywhere nearly as meaningful as the much more subjective kind of analysis I made in my original post. But in any event, I don't have access to that data now.

MKM, you are correct that appearances as counsel of record don't necessarily tell us what each person's respective roles and responsibilities were in a case, and you are also correct that from lawyer to lawyer within a firm, from firm to firm within a city, and from city to city, there are substantial variations in how much ghostwriting and credential-padding and constructive credit-taking goes on. I wasn't looking over anyone's shoulder during any of the cases discussed above, and of course can't confirm the extent of her personal participation. If the search results for her cases are like my own, there may be a few cases that would pop up in which she was listed as among counsel of record but had little actual involvement, and there may also be as many or more cases in which she was heavily involved, yet on which her name doesn't show up at all.

(One of my appellate accomplishments of which I'm most proud, for example, was persuading the Texas Supreme Court to rehear and revise a hugely consequential consumer law opinion which set a precedent that would have absolutely pole-axed one of my major clients, even though it wasn't a named party in that appeal; but the losing side was essentially insolvent, and its lawyer was a well-meaning mullet. So with my client's consent and at its expense, and with the insolvent company's permission, I ghost-wrote the entire motion for rehearing. It worked; I changed the law; but my name is nowhere on the official records of that case.)

However, I will say that had Ms. Miers been out to pad her resume, at a firm the size of hers and given her power within it, she could have easily outdone the prodigious Mr. Fiske about whom Simon is so tickled. And I will repeat my observation that consistent with the "one riot one Ranger" tradition we hold so dear in Texas, I think Texas firms in general tend to put fewer names on the pleadings than is typical on either coast; but that's obviously a subjective impression. Moreover, where hers is the only name listed for a party, it's almost certain that she was personally involved to the point of being able to ethically vouch for the work. Where she has been the senior-most lawyer from her firm listed, it's likewise quite likely that she had the ultimate authority within her firm for that representation, and it's vastly more probable than not that she also had the main relationship with and responsibility for that client.

(47) Moonzoo made the following comment | Oct 9, 2005 8:45:18 AM | Permalink

Beldar, the evidence you present is flimsy and suspect, and your conclusions may very well be wrong. The mere fact that a person's name is listed in a case only necessarily means that her name was listed on the brief, unless otherwise specifically noted. In the first two cases, her name is listed as co-counsel. In the first, she is listed as the first name of five belonging to the same firm. If anything, this means she had a supervisory role over those who actually wrote the brief. In the second, there is another attorney listed from another firm, representing the single client. It is just as likely that that attorney did the appellate work alone. Someone should ask Miers to explain the issues in the Disney case; I bet she will not be able to.

(48) susan made the following comment | Oct 9, 2005 9:25:49 AM | Permalink

I am not a lawyer but it appears to me cronyism is rampant amongst the elite conservative pundits who are demanding that Bush select THEIR candidate.

Well, Bush did nominated THEIR candidates time and again but a spineless Republican Congress led by Bill Kristol's favorite fearful Republican Senator McCain(aka, Hillary Centrist in drag) caved before every battle.

One reason why I support Bush is that he is not beholden to elitists on either side of the political spectrum.

(49) Tom Myers made the following comment | Oct 9, 2005 9:56:45 AM | Permalink

It seems to me possible that Miers is not just qualified, but uniquely qualified -- from the Bush viewpoint. PowerLine has commented on her apparent admiration for Warren Burger's administrative skills, saying that's irrelevant to her job. It seems to me at least possible that President Bush is hoping that she and Roberts can make judicial administration be her job; if he has fundamental shifts in mind, shifts which he doesn't want to talk about before confirmation, this might explain her selection as well as his failure to explain her selection. Yes, this is a conspiracy theory, and it's probably wrong but I'd love to see your take on it. I've put a somewhat longer version on my own blog.

(50) Lgl made the following comment | Oct 9, 2005 11:50:56 AM | Permalink

Beldar is doing yeoman's work in defending Miers against the "incompetence" attack. I take offense, as he does, at the suggestion that her law school or trial court litigation experience are not up to SCOTUS standards. It may be that she will bring a valuable perspective to the court that is now missing.

However, while I understand Bush's fierce personal loyalty to Miers, shouldn't she, as a supposedly savvy adviser, have foreseen the firestorm her nomination would cause, and therefore advised the president against it? If she didn't, she seems a bit out of touch with Bush's conservative "base" and its entirely predictable reaction to her nomination. And if she did foresee that this nomination would bring on a firestorm, wouldn't it have been prudent to advise the president strongly against the idea, or simply decline the job?

Bush and Miers share the credit for what may turn out to be a fiasco. I hope not, but as much as I support and admire his leadership on the GWOT, I can't help thinking that Bush inherited at least some of his father's political tin ear when it comes to domestic politics.

Two points on the qualifications debate:

(1) I am not that impressed with big firm managing partner experience. I agree with James23. Seems to me that consensus building -- good trait for managing fractious lawyers -- might not be a great one for SC justice. There, principles are far more important that personalities.

(2) with all her experience, why isn't she board-certified in civil trial law? (for that matter, why isn't Beldar?)

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