Miers' 1995 letter to Bush on Texas attorney fees ought to comfort conservatives

Writing on the Confirm Them blog, Andrew Hyman has a piece up that links articles from the WaPo and AP on the subject of a letter that Harriet Miers wrote to then-Texas Governor George W. Bush in June 1995. Through his comments as quoted in the WaPo article, though, Bruce Fein — who's described in the WaPo article as "a Miers critic who served in the Reagan administration's Justice Department and who often speaks on constitutional law" — unfortunately only added to what's probably an inherently confusing situation for conservatives trying to make heads or tails. And perhaps sensing the confusion, Andrew wisely added to his post a disclaimer noting that he's not a Texas lawyer.

To make sense of this, you really do need to understand what had been, and was then, going on within Texas. This only makes sense if you understand Texas' fits-and-starts evolution from being reliably dominated by yellow-dog Democrats (with the Democratic Party in Texas containing its own constant struggle between conservatives and liberal/populist forces) to its present conservative Republican-dominated status. But for reasons I'll explain in my usual tedious length in the rest of this post, here's the take-away message for conservatives trying to gather information about Miers:  This letter represents Harriet Miers' commitment to, among other things, preserving future options for tort reform. And it would be a mistake to read it too broadly — it's emphatically not, for example, the kind of endorsement of "legislating from the bench" that the WaPo article suggests, nor the kind of statement on classic federal constitutional separation of powers doctrine that Bruce Fein's comments suggest.

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It's hard to know how far back to go — this story really has its roots, I guess, in the Civil War and the Dixiecrat "Solid South" after Reconstruction. With the exception of a laughably small number of Congressional seats, Texas was solidly and regularly dominated by the Democratic Party at local, county, and statewide levels, and at the statewide level in every branch and office of government. But the Democratic Party of those days was a different (and most would say, healthier) animal then than now, and there was room within it for a conservative-versus-liberal/populist dynamic that permitted plenty of hard politicking.

Thus it was conservative forces within the Democratic Party who made the first efforts at legislative tort reform in Texas way back in 1977, when the Texas Legislature (both chambers controlled by Dems) passed, and the Governor (conservative Democrat Dolph Briscoe) signed, a new law that was intended to cut back on what conservatives were increasingly perceiving to be "runaway jury awards." The Medical Liability Act of 1977, codified at Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1102, created an inflation-indexed cap, initially set at $500,000, on damage awards (other than for past and future medical bills) in medical malpractice cases (including both noneconomic damages categories like "pain and suffering" and economic damages categories like "lost wages"). The Legislature recognized that it was treading new ground and that its actions might be vulnerable to court challenges on federal or state constitutional grounds, and so it simultaneously passed (id. at § 1103) a provision saying that if the first cap were declared invalid by the courts, an alternative cap of $150,000 on "past and future physical pain and suffering, mental anguish and suffering, consortium, disfigurement, and any other nonpecuniary damage."

As predicted, there were many, many court challenges to the constitutionality of the damages cap, with a variety of somewhat conflicting precedents breaking out among Texas' fourteen intermediate appellate courts, and also among the federal district courts who were occasionally hearing med-mal cases either under traditional "diversity jurisdiction" or sometimes in cases involving the U.S. government as a party. As it happened, one such case from federal court made its way to the U.S. Court of Appeals for the Fifth Circuit, which considered and then rejected arguments that the damages cap was unconstitutional under federal law. Recognizing, however, that the definitive interpretation of the Texas Constitution is, under our system of federalism, left to the state courts of Texas, the Fifth Circuit employed a then-brand new procedure to "certify the question" of the damages cap's constitutionality under the Texas Constitution directly to the Texas Supreme Court. And thus it was that the Texas Supreme Court decided Lucas v. United States, 757 S.W.2d 687 (Tex. 1988) — about which more in just a moment.

To make sense of what's happened since, you absolutely must understand that this period of time, roughly 1987-1988, was the tail-end of the heyday of the plaintiffs' personal injury bar's domination of the Texas Supreme Court. There were still some conservative Democrats on the Texas Supreme Court. And a Republican, Bill Clements, had re-captured the Governorship for his second (non-consecutive) term in 1986, and he'd filled the open Chief Justice seat on the Court with a brilliant young state district judge from Houston, Thomas R. Phillips (about whom, not coincidentally, you'll be reading in the coming week in connection with Ms. Miers' nomination). But Democratic liberal/populists — including in particular two Justices who were very closely aligned in most folks' eyes with the plaintiffs' PI bar, Oscar Mauzy and Bill Kilgarlin — still dominated the Court.

Things had gotten so lopsided that in 1987, the State of Texas got a shiny national black eye from a highly-publicized episode of CBS News' "60 Minutes" program which suggested in fairly blunt terms that through campaign contributions and perhaps otherwise, justice was for sale to the highest bidder on the Texas Supreme Court — with the plaintiffs' PI bar bellying up to the trough. And either wistfully (if you're a plaintiffs' PI lawyer) or ashamedly (if you're any other sort of lawyer), Texas lawyers still refer to the Texas Supreme Court of that era as the "60 Minutes Court."

But between Clements' election and the "60 Minutes" exposé, by the time the Lucas case was decided, it was reasonably clear that a backlash might be beginning — and so it was time for a really creative power-grab by the liberal/populists, who saw their hands beginning to slip from the levers of judicial power. Justice Kilgarlin, though, rose to this task, for as an exercise in populist rabble-rousing and class warfare, his opinion for the Texas Supreme Court majority (over a vigorous dissent by Chief Justice Phillips) was brilliant. As an exercise in judicial logic and dignity, though, it was an absolute travesty. Snagging a fairly obscure "open courts" provision from the Texas Constitution that was clearly intended only to guarantee that no class or type of person would be barred outright from the Texas courts, Justice Kilgarlin declared both the damages cap and its alternative unconstitutional — a result that would be subject to no further appeal and fully binding on both the Texas state-court system and any federal court applying Texas law, including the U.S. Supreme Court and the Fifth Circuit. But his masterstroke was to go further, to lock in this advantage by declaring that the Texas Legislature lacked the power to pass any such damage cap — that it was forbidden to do so by the Texas Constitution!

We hold it is unreasonable and arbitrary for the [Texas L]egislature to conclude that arbitrary damages caps, applicable to all claimants no matter how seriously injured, will help assure a rational relationship between actual damages and amounts awarded.

As a direct result of Lucus, it was not until August of 2003, when the voters of Texas approved an amendment to the Texas Constitution known as Prop 12, that the Texas Legislature was able to begin experimenting with new legislation implementing various sorts of damages caps for civil lawsuits. Their effectiveness is still being tested and debated. But with a stroke of the pen and an outrageous interpretation of the Texas Constitution — judicial activism at its most raw — Bill Kilgarlin's opinion in Lucas not only legislated from the bench in striking down a state statute, but proceeded to handcuff the Texas Legislature on this variety of tort reform for a full fifteen years!

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The trend sensed by Justice Kilgarlin did in fact continue. Through his integrity, intelligence, and steadfast leadership — recognized by the increasingly conservative majority in Texas, who reelected him in 1988 and then in every successive election for that seat through 2002 (he retired last year, but could have been reelected to that office for life if he'd chosen) — and with much good help at both county and state-wide levels, Chief Justice Tom Phillips led a top-to-bottom transformation of the Texas courts. Even though Ann Richards regained the Governor's Mansion for the Dems, and even though Republicans didn't capture both chambers of the Legislature until after the 2002 elections, the trend toward Republican domination of the judicial elections at state-wide levels, and throughout most of the state's largest counties (including in Houston and Dallas), generally continued. And Republican Governors Clements, Bush, and Perry have continued making fine appointments to open seats, most of whom have then been reelected by the voters of Texas, and other Republicans have run for and won contested seats outright. Thus has the Texas Supreme Court recently included some names you now know, my conservative out-of-state friends, like Priscilla Owen, John Cornyn, and, yes, Alberto Gonzales.

So by June 1995, when Harriet Miers wrote her letter to then-new Gov. George W. Bush, the situation on the Texas Supreme Court was almost completely reversed from what it had been only seven years earlier at the time of the Lucas decision. Instead of being dominated by judicial activists — Democratic Justices heavily beholden to the plaintiffs' PI bar — the Texas Supreme Court had redeemed its national reputation and returned to its traditional judicial conservatism.

I read a comment on another blog the other day asking why, if Harriet Miers was such a great lawyer, didn't Dubya appoint her to the Texas Supreme Court. I'm reasonably sure that the answer to that question was two-fold: By the time Dubya entered the Governor's Mansion, the Texas Supreme Court was already fixed and in good hands, while he badly needed her instead to go over and fix things over at the Texas Lottery Commission (which was responsible for Texas public school finance revenues of some $7 billion).

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Back, finally, to the specific circumstances that prompted Ms. Miers' letter.

To the extent that the liberal/populist wing of the Democratic Party still had much political clout in Texas in 1995, it was in the Texas Legislature. And it was there that their allies in the plaintiffs' PI bar thought they had their best remaining chances to try to keep the brakes on any serious movements toward tort reform. Then, as now, there were many other sorts of tort reform proposals floating around other than damage award caps — and the plaintiffs' PI bar understandably found most threatening to them in particular the proposals that there ought to be some sort of cap, limit, or at least tighter regulation of contingent fee arrangements.

Traditionally, however — and not just in Texas, but commonly across the United States — most regulation of fee arrangements between lawyers and their clients has come from professional ethical constraints. Organizations of state government or quasi-government set up to self-police and regulate the legal profession have typically done most of such regulation, if any, as there has been of attorney-client relationships, contractual and otherwise. But in Texas, and I suspect in most other states, the state legislature also has at least a potential joint role in this area. The requirement in Texas, for example, that a contingent fee agreement must be in writing to be enforceable by the attorney is one of the very rare restrictions on lawyers imposed both by a statute enacted by the Texas Legislature and by the Texas Disciplinary Rules of Professional Conduct promulgated by the Texas Supreme Court — and I'd wager that not many Texas lawyers even know of that statute.

So looking over at the newly-conservative, presumably more tort-reform-friendly Texas Supreme Court in 1995, the plaintiffs' PI bar in Texas became concerned that they might be especially vulnerable there if one of the new Republican Justices decided to launch a crusade to cap or restrict contingent fees through an amendment to the Disciplinary Rules. And accordingly, the plaintiffs' PI bar decided to get their remaining friends in the Texas Legislature to throw up a barrier against any possibility that the Texas Supreme Court might involve itself in creating new caps or limits on their contingent fee arrangements.

And that's the statute — House Bill 2987 — that Harriet Miers was asking then-Gov. Bush to veto! And by doing so, she was not suggesting or endorsing the proposition that the Texas Supreme Court ought to start "legislating from the bench" on matters outside its traditional competency. Nor — despite Mr. Fein's perhaps understandable confusion — was she confused when her letter refers to "balance of power" rather than "separation of powers." The power to regulate lawyers and their fees had traditionally always belonged at least jointly to the Texas Supreme Court; that was indeed the existing "balance of power" she wanted to see preserved. What she wanted to see avoided was a power grab by the Legislature on behalf of the plaintiffs' PI bar — a power grab similar in its motives and likely effects, but dissimilar in its means, to Justice Kilgarlin's power grab in Lucas that so badly upset the "balance" (not separation) of power in 1988. That's the background for why Ms. Miers warned that if House Bill 2987 were passed and the plaintiffs' PI bar were again allowed to demonstrate that it could dominate the Texas Supreme Court at will (this time through the Legislature), then "[o]nce again Texas would be required to hang its head in shame for circumstances driven by a handful of greedy, but immensely rich and powerful lawyers." Harriet Miers, after all, had been (as she notes) a leader among the broader categories of Texas lawyers who'd been ashamed of the "60 Minutes Court" and Lucas. As President of the State Bar of Texas who'd dealt with counterparts in other state bars, and as someone who also worked within the ABA to try to de-politicize that body and return it to its original roots in service to the profession and public, Harriet Miers had strong views on this subject.

Dubya probably would have vetoed this bill anyway. And as it's turned out, the Texas Supreme Court has not yet made any effort to regulate contingent fees. I frankly doubt that it ever will; if such regulation of contingent fees is done for reasons of public policy and economics, rather than for reasons of the professional ethical issues for which the Texas Supreme Court has generally had primary responsibility, I suspect that the Texas Supreme Court is likely to leave that to the Legislature. And it would be a huge stretch to try to draw parallels from Ms. Miers' letter on this topic to how she might rule on genuinely constitutional issues of federal separation of powers, or federal checks and balances, or the constitutionality of Congressional attempts to restrict federal courts' subject-matter jurisdiction on particular topics.

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No, friends and neighbors, your take-away message with respect to this letter and this episode in the George W. Bush/Harriet Miers history ought to be: There was Harriet, fighting for principle, fighting for legal ethics and excellence and the dignity of the profession, fighting against the perverse exercise of political power by secret, moneyed interests, and fighting to keep open all possible options for tort reform. When you understand the historical context — as she certainly did — her letter makes much more sense, and indeed becomes much more persuasive. Indeed, the way she reacts here — while from a nonjudicial role, writing (as she emphasized in her very first sentence) only as a former president of the State Bar of Texas — does in fact give useful hints into her personality and her character. No, it doesn't help you predict how she'll rule the next time abortion or any other specific issue comes before the Supreme Court. It doesn't show a specific philosophy of constitutional interpretation either. But it shows how she thinks, how she approaches issues, how she articulates concerns, what kind of interests she thinks deserve protection, and how she reacts to greed and (at least arguable) corruption. And those, too, are good things to know about Justices of the Supreme Court.

Dubya has been watching her react on issues like this one for ten years now. Not just this one, but all kinds of issues involving intersections between law and policy — economic policy, social policy, defense and security policy, political policy, every kind of policy. That's why he's so sure he knows her. For you and me, this letter, this issue, is just one tiny glimpse. But it's a glimpse that ought to comfort us, as John Roberts' memos to Fred Fielding did. And it's a glimpse that ought to remind us of what this nomination is like from the President's perspective — not from ours, for we lack these insights that he's gained over a decade's association with her.

More such insights will probably come out over the next few weeks. We'll get more of them, maybe stronger ones. But reconcile yourselves, gentle readers, to two facts: (a) for absolutely good and valid reasons, this President is not going to make a blanket waiver of attorney-client, work product, and executive privileges to give you, me, the Dems, Reuters, and al Qaida all of the paper trail from Harriet Miers' work for this Administration; and (b) even if we had that paper trail, it still wouldn't give us the full flavor of the experience and insights he has, as Harriet Miers' decade-long client. We'll each have to decide if what we've got, and what we'll get, becomes enough to support her and trust him. So will each senator.

But this particular data point — this particular letter — ought to count in Harriet Miers' favor with any committed conservative who bothers to find out the history and context. And I hope that folks like Mr. Fein, for example, who are marshalling the evidence against her nomination — who are trying to do so out of what I stipulate to be good motives and in good faith — will nevertheless be a little more careful in the conclusions they jump to in the next few weeks.