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

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

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

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

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

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

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

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

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

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

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

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

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

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