BeldarBlog

Ex-judges as "friends of the court"

I've only worked on a few amicus curiae appellate briefs. That Latin phrase literally translates to "friend of the court." It generally "refers to someone [who, although] not a party to a case, [nevertheless] volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it."

But long ago, when I was a young associate at Baker Botts, I was instructed to show up at a rather odd hearing before then-state district judge (now federal district judge) Lynn N. Hughes that involved a piece of property in which our client, Rice University, had a potential interest.

"Be careful that you don't enter a formal appearance in the case on behalf of Rice as a party-litigant," I was firmly instructed by the partner who gave me the assignment: Rice didn't want to be perceived as, and in fact was not being, particularly eager or greedy, and neither did it want to align itself with or against any of the actual litigants.

"But how should I identify myself to Judge Hughes?" I asked.

"Think of something," was the answer, "Just don't enter a formal appearance that turns Rice into a named party or otherwise gets it stuck forever in this lawsuit."

This set me to gnawing my bottom lip as I trudged over to the courthouse. I spent a good ten minutes debating whether to sit inside or outside the rail (i.e., with the other lawyers or with the audience). I spent another five minutes wondering whether I should leave a business card with the court reporter (which is normally an essential courtesy), and if so, what I should write on it to indicate who I represented, and in what capacity.

I finally decided to sit inside the rail, and to hand over, but write nothing on, my card. I introduced myself to the other lawyers before the judge entered the courtroom, and I told them who I represented, but I didn't say anything about exactly why I was there.

The hearing began soon thereafter, and once the lawyers for the litigants had identified themselves on the record, I stood up and nodded to Judge Hughes — signaling (still without speaking on the record) that I wished to be recognized. (He knew my name from an unrelated case on which I'd recently appeared in his court.) "Mr. Dyer," he intoned, "do you represent a party to this matter?"

I'd decided that the best I could do in answering that question was to repeat pretty much what I'd been told: "No, your honor, but I'm here on behalf of Rice University, with instructions not to enter any appearance on its behalf as a party-litigant — neither as a plaintiff, a defendant, nor an intervenor. Rice's interest in these proceedings is indirect and contingent. But if it's possible, I'd like to have the opportunity to address the Court to a limited extent on matters that may particularly relate to Rice.

"I suppose," I finished up lamely, "I'm here in something somewhat akin to the status of an amicus curiae."

"Amicus curiae, hmmm?" said Judge Hughes, and he paused to ponder a moment. "Do any of the litigants have any objection to Mr. Dyer's request on behalf of Rice University?" he asked. None did.

"Well, Mr. Dyer," drawled Judge Hughes, "I never attended Rice, but I've always held it in high regard, and it's certainly one of our city's and our state's finest institutions of higher learning. I'll grant your request, and we'll leave your exact status here somewhat indefinite. You might manage to say something useful. But mostly, I find myself to be unexpectedly tickled pink just to learn that Rice University is indeed my particular friend, at least for the purposes of this case!"

"Oh, it is, Your Honor, it truly is!" I gushed relievedly — to loud guffaws from everyone else in the courtroom.

"Chums it is, then," said Judge Hughes with a grin. And I sat down, and made sure to keep my mouth firmly shut for at least the next hour of the proceedings.

*******

That anecdote is only mildly apropos given my main reason for posting here, which is essentially to reprint a comment I've left in response to a typically thoughtful series of posts over on the Volokh Conspiracy, including these two from Prof. Eugene Volokh. "Maybe I'm missing something," he writes, "but I just don't get the thinking behind the D.C. Circuit decision rejecting the retired federal judges' friend-of-the-court brief in one of the Guantanamo cases." (His co-blogger, Prof. Jonathan Adler, has also written about the ruling here and here, and their co-blogger Prof. Orin Kerr has written about it here.) Prof. Volokh further writes:

Of course, the reason that they are filing the brief is that they are hoping that their experience and past accomplishments will impress the judges and Justices who may consider the case, and will move those active judges to pay special attention to the arguments in the brief. (They may also hope that the public and the bar will pay such special attention as well.) But there seems to be nothing nefarious in that — the whole point of having amicus briefs be signed rather than anonymous is so that the court may consider, for whatever it's worth, the identity of those making the argument as well as the contents of the argument.

I don't disagree with that, nor with his analysis of the ethical advisory opinion briefly cited in the DC Circuit's order. But here (slightly edited) is the comment I left on his post (amidst many other very perceptive and well-written comments):

---------------------------------

What's bogus is the notion that "retired judges" have an indirect interest comparable to, say, AARP, the ACLU or the National Association of Manufacturers. There's no such entity comprising, nor community of interest associated with, retired judges.

If some entity had hired all these former judges to sign off as co-counsel of record on an amicus brief, in which they were clearly appearing as ordinary advocates rather than pseudo-principals, that would have been another thing altogether. Whatever additional dignity their past histories might lend to their arguments would be implicit at most.

Instead, their brief's statement of interest claims that

[a]s former federal judges, we believe that compelling this Court to sanction Executive detentions based on evidence that has been condemned in the American legal system since our Nation’s founding erodes the vital role of the judiciary in safeguarding the Rule of Law.

Which is to say, "Listen to us, 'cause we used to be judges and we oughta know." This was a stunt designed as much for media play as to impress any current judges on the DC Circuit — and indeed, in that latter respect it appears to have backfired rather badly, eh?

I think the DC Circuit was absolutely right. Nip this in the bud. Let judges join some special interest group if they wanna; or let them sign on to such an organization's proposed amicus brief with a simple "Esq." title if they want to return to legal practice as counsel of record. But per Chief Justice Roberts' observations about judges as "honest umpires," we don't want to invite all ex-Major League Baseball umps onto the playing field to critique and second-guess the officials whose current job it is to call the balls and strikes. They can doff their chest protectors and their uniforms and shout from the stands along with the rest of us.

Ought John Edwards' career as a plaintiffs' personal injury lawyer disqualify him from being elected President?

My blogospheric friend and fellow legal professional Stephen Bainbridge writes (much more concisely than I'm about to) about John Edwards' formal announcement of his candidacy for the 2008 Democratic presidential nomination (links in original):

Back in 2004, I wrote that Edwards policies on corporate governance were "demonstrably wrong." I also criticized Edwards' impact on the economy as a trial lawyer. Given the deleterious effects the trial lawyer industry has had on the American economy, as ably demonstrated by the Manhattan Institute's Trial Lawyers Inc. project, I remain unconvinced that a trial lawyer ought to have much authority over the economy.

I would be loath to gainsay Professor Bainbridge on anything involving corporate governance, and this essay only addresses the remaining points in his post. And we agree, certainly, that neither of us would ever be able to support Edwards for high political office. But I get to that conclusion via a different logical path, and I respectfully disagree, albeit only in part, with that followed by Prof. B.

*******

I certainly agree with Prof. B that Edwards' specific career history as a lawyer is relevant to his fitness for public office. If he were shown to have been either incompetent or unethical as a lawyer, that would certainly be probative of his unfitness as a matter of personal character. But that would be true whether Edwards was a deal lawyer or a courtroom lawyer or any other kind of lawyer. (I argued in the 2004 election, for example, that John Kerry's comparatively dismal academic career and showing as a prosecutor before he turned to politics were among the many reasons to doubt his fitness for high office.)

And as always, I must voice my quibble over terminology: I believe what Prof. B objects to is not that Edwards is a lawyer who has frequently gone to trial (a category that includes, for example, prosecutors, criminal defense lawyers, personal injury defense lawyers, both sides in business litigation, and me), but rather, that Edwards is a lawyer who primarily represented plaintiffs in personal injury cases.

But that quibble aside, I also agree in general, at least on a macroscopic level and specifically at the margins, with most of Prof. B's and the Manhattan Institute's concerns about what the plaintiff's personal injury bar (many of whose members in fact do not frequently go to trial) may collectively have done, or be doing, or be likely to do, to our economy and our society. (I also think that it's dangerous and misleading to over-generalize on that topic. One of the reasons I like the writing of Walter Olson, Ted Frank, and their colleagues is that I believe they conscientiously try to avoid overgeneralizing, or at least to be very specific in their complaints — and they mostly succeed.)

I'm also at least somewhat inclined to think that because of the mode of most of our legal training, and for many of us the nature of our law practices, lawyers in general — not just plaintiffs' personal injury lawyers — may be more prone than those in other occupations to split hairs, play devil's advocate, rationalize, indulge in post hoc justifications, and fall prey to the perils of cultural relativity. All of which is to say, there are things about this profession that can often make it hard to maintain a principled, moral personal compass. Indeed, that may have proven true for some of the law school professors with whom Prof. B is familiar (although I'm confident that all of his own compasses are steadfast and true).

*******

So there is much upon which I think we probably agree. Where I part company with Prof. B, however, is over whether Edwards' career as a lawyer who primarily represented plaintiffs in personal injury cases is, by itself, a factor that ought to cut against his being President.

It's perfectly possible, for example, for a lawyer to be polite, honest, and ethical; literate and well-educated; a fiscal conservative; a hawk on national defense and foreign policy; a libertarian on most issues involving personal liberty; a federalist; a textualist in statutory interpretation, an originalist in constitutional interpretation, and a proponent of judicial restraint; an opponent of both racism and racial preferences; a God-fearing Christian who nevertheless believes in evolution and the death penalty, but is horribly conflicted on the subject of abortion; and a lifelong Republican — and yet to have also represented plaintiffs in personal injury cases with some regularity. I know a few of those, and although plaintiffs' personal injury work has never been the bulk of my practice, I have from time to time been among that small but still significantly significant number. (That a huge portion of Angry Left Democratic candidates' funding comes from members of the plaintiffs' personal injury bar does not mean that all plaintiffs' personal injury lawyers support those candidates, no more than all members of the mainstream media do.)

And I'm not sure it's fair to use Edwards' membership in a subgroup of lawyers who may, in the aggregate, be bad for society or the economy, as a basis to extrapolate the kinds of national or international economic decisions he'd be likely to make as President. Lawyers who work on a contingent fee basis may indeed be keenly motivated by the prospect of sharing in their clients' recovery — again, that would describe me, from time to time, and it's the entire premise of the contingent fee system. But I don't think Edwards' decision-making as President would likely be motivated by personal greed for money, whatever his motivations have been during his career as a plaintiff's personal injury lawyer.

*******

Instead, I think John Edwards would be likely to make presidential decisions less through principle of any sort than through constant focus-grouping and opinion polling. He would be a weather-vane President — always acting with an eye toward satisfying his Angry Left base, yet usually also trying to fool the moderates in order to thereby ensure his re-election. His greed would be not for money — he has plenty — but instead for power, and for the means for obtaining and retaining it.

I'm not sure there is a genuine center to John Edwards: I'm confident that he can certainly be a persuasive advocate, but I'm not at all sure that he's capable of being a strong-willed principal.

I believe, in other words, that if elected, Edward would likely be a lot like a former President, William Jefferson Clinton, or another Presidential wannabe, Hillary Rodham Clinton — neither of whom have ever been plaintiffs' personal injury lawyers, but both of whom are lawyers, or were until Bubba had to surrender his license. Indeed, both Clintons have been law professors. And they're both capable of debating what the meaning of "is" is, or of rationalizing methods by which small change has become a small fortune in futures trading.

Abe Lincoln was, by all accounts, a first-rate trial lawyer whose cases included representation of plaintiffs suing to recover for personal injuries, and who often worked on a contingent-fee basis. But that doesn't mean that he had much in common with John Edwards, or with Bill or Hillary Clinton, in terms of any of their fitness to be President.

U.S. federal court rejects silly legal argument to postpone Saddam's execution

Minutes ago, the Associated Press reported that

[a] U.S. judge refused to stop Saddam Hussein's execution Friday, rejecting a last-minute court challenge by the former Iraqi president.

"Petitioner Hussein's application for immediate, temporary stay of execution is denied," U.S. District Judge Colleen Kollar-Kotelly said after a hearing over the telephone with attorneys.

When I first heard that this application had been made to a federal court here in the U.S., I started imagining how I might have tried to frame it, were I one of Saddam's lawyers — not because I am, or want to be, or would ever agree to be, one of Saddam's lawyers, but because to analyze a legal argument, you have to put yourself in the shoes of each side's advocates. The best arguments I could imagine still wouldn't have had any ultimate merit, but I could at least imagine some lawyer arguing them without an extreme amount of embarrassed blushing.

Reading the press description of what they actually argued, though, I can't imagine how Saddam's lawyers' heads didn't explode:

Hussein's lawyers filed the court challenge late Friday night, giving the judge just hours to act before the execution was expected to be carried out.

Hussein's attorneys argued that because the former Iraqi president also faced a civil lawsuit in Washington, he had rights as a civil defendant that would be violated if he is executed. He has not received notice of those rights and the consequences that the lawsuit would have on his estate, his attorneys said.

Wow, that's thin: Don't let the Iraqis execute him, 'cause he's been sued in America!

The reek of last-minute forum-shopping alone would have prompted all but the most extreme and ideological federal judges to bounce this case. Kudos to Judge Colleen Kollar-Kotelly (who is, by the way, a Clinton appointee, but whose background includes three years as a lawyer in the Justice Department's criminal appellate section).

The occasion of this monster's execution is not an occasion for celebration. It's a moment to again mourn his innocent victims, who number at least into the hundreds of thousands, and to take grim satisfaction in the justice, however inadequate and imperfect, that is finally being accorded to their memories.

Federal appellate panel rehearing vs. rehearing en banc

Linking TaxProf Blog and How Appealing, Prof. Jonathan Adler over on The Volokh Conspiracy writes (italics in original) that

[t]he U.S. Court of Appeals for the D.C. Circuit has granted the petition for rehearing in Murphy v. IRS. In Murphy, a unanimous three-judge panel held unconstitutional a provision of the Internal Revenue Code that taxed as income, compensation for personal injuries unrelated to lost wages or earnings. Note, this is not an en banc rehearing. Rather, the original three-judge panel will rehear the case.

Some of the comments pick up on Prof. Adler's distinction between panel rehearing and en banc rehearing, and pose some further questions about the difference between the two. I started to weigh in with a lengthy comment there, but decided to post here instead, since I've frequently blogged about en banc proceedings within the various federal courts of appeals, but I don't think I've ever written much specifically about panel rehearings.

When a three-judge panel of, say, the Fifth Circuit issues its opinion announcing its decision on any given appeal, the losing side has several options. It can ask for that three-judge panel to reconsider its decision via panel rehearing. It can also ask the entire membership of the Fifth Circuit to reconsider the three-judge panel's decision via rehearing en banc. In fact, the losing side can choose to do either, or both, but it can also choose to do neither: It can skip both of the panel and en banc rehearing steps, and jump straight to asking the Supreme Court to overturn the Fifth Circuit panel's ruling via a petition for a writ of certiorari.

Obviously, if a panel does agree to reconsider its original opinion, then its doing so may moot some or all of the issues that were raised in a simultaneously filed motion for rehearing en banc. Thus, if both a motion for panel rehearing and a motion for rehearing en banc have been filed, the Chief Judge of the Circuit will typically wait for the three judges on the panel to indicate whether they're going to grant or deny panel rehearing before polling all of the judges of the Circuit on the motion for rehearing en banc. And indeed, Prof. Caron's post points out that "[a]s a result of the [Murphy] panel's action [in granting the motion for panel rehearing], the D.C. Circuit dismissed the Government's en banc petition (filed 10/5/06) as moot."

It's fairly rare, however, for the litigants to persuade a three-judge panel to grant panel re-hearing.  Most of the time, the litigants have indeed already made their best arguments, and have made them as persuasively as they are able, before the release of the original panel opinion. Many litigants therefore don't even bother requesting panel rehearing, but simply ask for rehearing en banc — or (lances leveled straight at the windmill) they simply file their cert petitions.

Sometimes, though, a panel opinion will end up being decided on a factual or legal issue that may not have been fully briefed. When a panel has acted without the benefit of much briefing on a particular factual or legal point, its resulting opinion is comparatively more likely than otherwise to have bollixed something up. In those circumstances, the first time the point is thoroughly briefed by the parties may be during the motion for panel rehearing stage — and that briefing may indeed change the minds of the panel judges as to what the outcome should be. For example, a panel opinion might duck a procedural issue on the ground that one party waived the issue by failing to make a timely objection in the district court. If the losing side's motion for panel rehearing can point the panel to the place in the record where a timely objection was indeed made, then the panel may grant rehearing, delete the waiver analysis, and deal with the issue on its merits in a substituted opinion. Quite often in these situations, on rehearing the panel reaches the same ultimate result as it did originally, but it's simply "prettified" its original opinion — thereby making it somewhat less vulnerable to rehearing en banc or certiorari.

The best appellate advocates understand that panel rehearings have a slightly different set of dynamics than do en banc rehearings. Arguments relating to the record, for example, are generally far more appropriate to panel rehearing, as are arguments that the panel went off in an unexpected direction that wasn't adequately briefed. Arguments to the effect that the panel simply got the law wrong — notwithstanding thorough briefing on point by both sides before the panel made its ruling — are very unlikely to persuade the panel to reconsider, but they may have a better chance of attracting support from other Circuit Judges who weren't on that panel.

Thus, the tone of a motion for panel rehearing may be very solicitous, along the lines of, "Gosh, Your Honors, we're sorry, we just didn't know you would be interested in Issue X-and-such, but now that we know that, here's our position on that, and here's why you ought to want to grant panel rehearing to fix this problem in your original panel opinion (and by the way, here's why that means we win instead of we lose)." The underlying tone and subtext of a motion for rehearing en banc, however, is typically much more adversarial, along the lines of "Hey Fifth Circuit! Three of your colleagues just screwed the pooch very badly, so you need to unscrew it before we ask the Supremes to do so, 'cause they and the other Circuits are going to be pointing the finger at your Circuit and snickering behind your backs!" (Obviously, this sort of pitch has to be really sub-textual, and cloaked in appropriately respectful language, to have any chance at all of success. But that is the basic and essential pitch: "Y'all need to gang up and overrule three of your colleagues who've botched it.")

It's a mistake, however, to assume that the litigants and the three judges of the panel are the only players in panel rehearing dynamics. The possibility of rehearing en banc may make panel rehearing more likely in at least some cases. The litigants' counsel may be incapable of spotting, or at least persuasively articulating, some fundamental flaw in a panel opinion, and therefore may be unable on their own to persuade a panel to reconsider.  But "slip opinions" (the initial printed versions of opinions as released by the court clerk, before they're originally included in the long-term bound volumes of the Federal Reporter series) are typically reviewed by other judges of that Circuit who weren't on the original panel — and those other judges also have a long-term interest in the coherence of their Circuit's precedents. That can, in turn, indirectly lead to a panel opinion being withdrawn by the panel — sometimes even when no motion for panel rehearing has been filed!

The judge for whom I clerked, for example, had a particular expertise and interest in securities and bankruptcy law. If she saw that a panel opinion said something particularly stupid on one of those arcane topics — typically because of poor briefing by the litigants combined with a lack of deep experience on the subject on the part of the panel judges and their (neophyte) law clerks — she might pick up the phone or jot a short note to the author of the panel opinion suggesting that he or she re-think that particular portion of the opinion. The gentle and entirely implicit threat was that if the problem wasn't fixed, my judge might reluctantly and respectfully have to support en banc rehearing — perhaps by leading the charge within the full court to see the petition for en banc rehearing granted — to keep the panel opinion from becoming lasting, binding precedent. This process is a less confrontational means for each Circuit's most knowledgeable judges on particular subject areas to ensure that its precedents aren't muddled. Quite often the original panel members are grateful rather than defensive. (Indeed, if they'd only seen the flap coming in advance, they might have solicited the views of their Circuit's "resident expert" on that topic before releasing the original panel opinion to the public.)

I don't know enough about the Murphy case to make an intelligent guess as to which of these scenarios this grant of panel rehearing falls into, if any. And I certainly don't have anything interesting to say about the underlying tax law question.

Rather, my reason for blogging about this at all is as part of my continuing effort to demystify, and yet demonstrate the complexity of, decision-making within each of the various Circuits. The more you understand about how those appellate courts work, the more likely you are to conclude that the power to nominate Circuit Judges, and to confirm or block those nominees, ought to be an extremely important political consideration when you cast your own votes for President and for your state's senators.

Would you like to re-view your testimony from behind bars, counselor?

Some of my colleagues at the bar wonder why many members of the public hold us in low regard. I don't wonder, and stories like this one (hat-tip Howard Bashman) ought make it clear to them too (italics and boldface mine):

A Microsoft lawyer argued Tuesday that three expert witnesses should be barred from testifying in the Iowa class-action lawsuit against Microsoft because plaintiffs' lawyers have repeatedly failed to provide documents related to the witnesses' testimony.

....

Microsoft asked last summer for documents used by [the plaintiffs'] expert witnesses to arrive at the testimony they planned to give in the case.

Microsoft lawyer Steve Holley told the judge Tuesday afternoon that the plaintiffs' lawyers had used contorted language to keep from producing the documents.

Holley claimed that lawyers at the Minneapolis firm of Zelle Hoffmann had split the word review — into re-view — to create their interpretation that Microsoft was only seeking documents that the witnesses had looked at twice.

James Reece, a partner at Zelle Hoffmann, which is co-counsel with Des Moines lawyer Roxanne Conlin for the plaintiffs, admitted to Holley that expert witness Netz had suggested the unusual interpretation. Reece had adopted it until a second court order on Nov. 28 made it clear that Microsoft wanted all witness documents.

Reece spent more than an hour on the witness stand late Tuesday afternoon after the jury was sent home.

Gosh, for the sake of Mr. Reece and Ms. Conlin, I hope there's more to this story than the Des Moines Register reports in this article. For their sakes, I hope the Microsoft lawyer misunderstood the supposed "admission," or the reporter just heard all this wrong. Because if that's all there is, Mr. Reece and Ms. Conlin's clients are almost certainly looking at losing the "benefit" of those experts' testimony: the judge will exclude or at least severely limit their testimony as a discovery sanction, or he'd have the power even to dismiss the plaintiffs' claims outright. And those lawyers ought to be looking at serious, serious personal and professional sanctions — fines, maybe jail time, disciplinary and maybe bar licensure consequences, and probably malpractice claims.

Let's be frank: Reading the word "review" to mean "re-view" is no different than simply lying about what the testifying experts looked at.

And it's a stupid lie in which the lawyers absolutely, positively should have known they'd be caught, even if the "expert" who suggested it thought they could get away with it. Every lawyer who's set foot inside a courtroom ought to know, has to know, can't find any excuse for not knowing, that it's absolutely, positively routine — universal — to have to turn over to the other side everything that your testifying experts have "reviewed" in forming their opinions, whether the experts skimmed it once or studied it for months in a wall-sized blow-up.

Occasionally you'll get into spats over whether an expert has "considered" or "relied upon" something he didn't specifically "review" for purposes of that particular case. Sometimes an expert will say, "Oh, that's just common knowledge in my profession, I didn't have to 'review' anything to know that." The cross-examining lawyer might say, "Sez who?" And then there may be some probing of just how common that knowledge is, whether it's in introductory textbooks or taught in professional schools, and so forth.

But any piece of paper that passes through a testifying expert's hands specifically for the purposes of his engagement to give testimony in that particular case just has to be turned over. It's not a close question, it's not a judgment call for the lawyer to make, it's just a basic, basic rule of pretrial procedure in all civil cases in every state of the Union. (But not, oddly enough, in some supposedly "civil" countries where they still discourage pretrial discovery and encourage trials-by-ambush.) Knowledge of this fundamental procedural rule is a big key to all expert witness retention and use strategies in modern litigation. (I posted at great length on the subject of testifying versus consulting experts, and expert witnesses generally, here if you really want the details.)

The Register reporter may not have understood all this, because he seemed to think that the thoroughness of Microsoft's demands were unusual:

The fight over the expert witness documents is an indication of how seriously each side considers even minor nuances to be in this case, which lawyers have said could last as long as six months.

Uh, no. This is not about "minor nuances." What the other side's expert witnesses have "reviewed" in forming their opinions and preparing their testimony is absolutely crucial to preparing their cross-examination in just about every case. There may be times when my client can't afford to pay me to take an expert's oral deposition before trial — to "swab him out," as trial lawyers say, by examining him thoroughly about every thing the expert's looked at and considered — but you still want that material in-hand at the trial even if you're doing a hip-shot cold cross-examination, and you're entitled to it. The only thing that strikes me as odd about this story is that the Microsoft lawyers apparently didn't discover the deception — for that's what this was, if the newspaper story is accurate — until the trial was underway. (Normally I'd have expected this to come out during a well-conducted pretrial deposition, which is another reason it's such a stupid lie.)

Why is it important that the document turn-over be completely comprehensive? Some of what the expert has reviewed may well not be reliable: "So, Dr. Xanadu, in forming your opinion that Bill Gates deliberately engaged in predatory pricing, and that he had actual knowledge that he was in unarguable violation of the antitrust laws, and that he had an average of three wet dreams each week dreaming about how he was putting it to the little guy, you relied heavily on two cartoons printed in the National Enquirer and a press release from the North Korean Ministry of Trade, isn't that true? Indeed, when the court ordered you to produce every shred of evidence that formed a basis for your opinion, those were the only documents you could produce, correct?"

And what's not there may turn out to be the most important thing of all: "Isn't it true, Dr. Xanadu, that you formed and put into writing your opinion that Microsoft was engaged in predatory pricing without ever examining a single financial document showing Microsoft's profits and costs?" If the witness is allowed to answer, "Oh, no, hey, I actually did look at all their documents on profits and costs, here they are in my briefcase with my handwritten and dated notes on them to prove it, but I just didn't look at any of them twice, so we didn't produce them when you asked" — then that would pretty much encourage deception, wouldn't it?

This is just roll-on-the-floor funny to any trial lawyer who reads it. And unfortunately, it's the sort of thing that — justifiably — causes the public to ridicule lawyers. All I can say in our profession's defense is that, well, these guys are about as representative of our profession as would be a bank robber who claimed to be representative of his profession after asking the bank security guard to hold his gun for him while he loaded his briefcase with cash from the safe.

If ever a judge were tempted to use his gavel — specifically, to bonk a lawyer on the noggin! — it would be in a case like this one.

More on the California lethal injection case

Further to my post from the wee-small-hours last night about the decision of U.S. District Judge Fogel in the California lethal injection case: The promised post from Patterico analyzing the decision is here, and here, from yesterday, is Prof. Kerr's briefer post as well. And readers have left interesting comments on both posts.

Patterico read the opinion with a commendably closer eye to its procedural nuances than I did. I think he's absolutely right that Judge Fogel did, in effect, shift the burden onto California to prove that its execution procedures are constitutional, and that he drew impermissible inferences from the absence of certain evidence to suggest what that evidence might have been (always in a way that favored the opponents of California's system). The overall impression, when studied with more care than I gave the opinion on my first pass-through, is that Judge Fogel was in a rush to push certain changes to be made in the system — he thinks he'd make a pretty good prison reformer, which is fine, but he also thinks he is one, which isn't. He's a federal judge in a constitutional system in which the federal government's powers, including the federal judiciary's powers, are supposed to be limited. But he wouldn't let either procedural niceties (like who had the burden of proof) nor substantive law (like whether something does or doesn't violate the Eighth Amendment) get in the way of his result.

Patterico also had one strong reaction to the opinion that didn't strike me on my first pass. He's critical of the opinion for being written with an eye to being quoted in the media, basically on grounds that federal judges have no business making their opinions into a bully pulpit for anything. My initial reaction, by contrast, was that Judge Fogel could have made his critique of the California system, thus probably prompting reactive changes by the California prison administrators or legislature, without needing to go so far as holding that his criticisms were constitutional violations.

I suppose that I'm jaded, because on reflection, Patterico's clearly right: Opinions ought to be written to explain rulings to the litigants and to reviewing appellate courts, not as press releases or think-tank-like "white papers." I guess I'd already given up on that idealistic point of view, even if it's an ideal worth fighting to maintain, simply because I've seen so many other federal judges (and not all of them on the liberal political side) whose legal opinions have smacked more of punditry than of law.

And the fundamental problem with this ruling and this opinion is indeed that Judge Fogel has undertaken the roles of pundit, commentator, social worker, and prison administrator. Whether he's good or not in those roles isn't the point. And when he tries to undertake them, he trivializes, and worse, he fails to perform in, his real job — applying and defending the Constitution.

Q: At a Tangipahoa Parish school board meeting, what's the difference between a fragmentation grenade and a prayer?

A: The grenade was probably thrown by the United States Court of Appeals for the Fifth Circuit. (Metaphorically speaking, of course.)

I cannot possibly match the indefatigable Howard Bashman for pith and eloquence here (link and boldface in original):

Splintered three-judge Fifth Circuit panel holds that Tangipahoa Parish School Board cannot open its meetings using any of four specified prayers: [Friday's] decision consists of separate opinions from each of the three judges on the panel. At first blush, this case appears to be a likely candidate for rehearing en banc.

And "blush" is certainly the right word. I certainly agree with Howard as to the likelihood that the full Fifth Circuit, sitting "en banc," might review this decision. And it ought to.

*******

This case is an excellent example of how three smart circuit judges, each with smart law clerks and abundant resources for research and writing, are nevertheless thrown into near-total confusion by the mishmash of Supreme Court precedents on the First Amendment's guarantees of religious freedom. There's no possible way that I could summarize the substance of this 65-page three-sided decision, but to give you a hint of how fractured this ruling — and the law — are, here's Judge Rhesa Hawkins Barksdale's first three paragraphs (hyperlinks and bracketed portions mine):

This appeal presents an Establishment Clause issue of first impression in our circuit. The Tangipahoa Parish School Board, its Board members, and the Tangipahoa Parish School System’s superintendent (collectively, the Board) challenge a permanent injunction against the Board’s opening its meetings with prayer. Consistent with the long-standing rule of deciding a constitutional issue on its most narrow basis, the injunctive relief must be narrowed greatly. This disposition is reached through differing opinions by each panel member.

The Board’s having conceded the prayers are unconstitutional under the test employed in Lemon v. Kurtzman, 403 U.S. 602, 613 (1971), this opinion assumes, without deciding, that Marsh v. Chambers' legislative/deliberative-body exception applies. 463 U.S. 783 (1983). Under Marsh, the four prayers at issue are unconstitutional; the balance of the injunction is vacated. Applying a Lemon, rather than Marsh, analysis, Judge [Carl E.] Stewart concurs in these four prayers being unconstitutional, but would affirm the injunction. Judge [Edith Brown] Clement would vacate the injunction, opining the prayers at issue fit within Marsh’s ambit of protection.

As a result, the portion of the injunction relating to the four prayers in the parties’ joint stipulations is AFFIRMED; the remainder of the injunction is VACATED. This matter is REMANDED to the district court for entry of an injunction consistent with this opinion. AFFIRMED in PART; VACATED in PART; and REMANDED.

And I'll tell you, friends and neighbors, that if Judge Beldar had been on this panel too, there would have been four different opinions — but mine wouldn't have even tried to harmonize and homogenize and explain and rationalize a handful of Supreme Court decisions that clash like bagpipes, banjos, and bazookas.

Nobody was forced to pray. Nobody was forced to stay in the room while the prayers were said. Nobody was prevented from saying a different prayer. Anyone could have asked the meeting leaders to say (or permit them to say) a nondenominational prayer, or to say a non-Christian prayer, or to have a few moments of chanting or silent meditation (followed by tofu-smoothies or peyote buttons) from time to time. The fact that students could attend a meeting of grown up school board members doesn't make this case even remotely similar to the line of "prayer in the public schools" cases, all of which are premised on the (questionable) theory that by permitting voluntary prayers, schools (as agents of the government) are therefore implicitly compelling all students to join in them. Wherever the border is between the Establishment Clause and the Free Exercise Clause, then, I'd find this case to be squarely in the Free Exercise territory — meaning no First Amendment violation, and that in fact these prayers ought to be constitutionally protected.

Not that I expect the Supremes to agree. Nor do I expect the Fifth Circuit en banc to write it up the way Judge Beldar would, because to do so they'd have to go farther than "harmonizing" Supreme Court precedents. They'd have to start busting some up and throwing out others altogether. And no lower appellate court can do that, and they get their knuckles rapped when they try.

*******

You may recall Judge Clement's name being floated as a potential Supreme Court nominee last year. But other than that, I don't know much about any of these three judges in particular.

Stylistic clues suggest to me that there was some general consensus among at least two of the three judges after the oral argument, and that both Judge Barksdale and Judge Stewart attempted to write an opinion that would draw at least one other judge's concurrence. Judge Clement's opinion, by contrast, seems to have been written from the outset as a a dissent from the outcome, and from all but a small piece of either other judge's rationales.

However, I'll venture a confident guess, from what I know of the typical Fifth Circuit processes, that there was much correspondence, much suggestion of revisions, and many telephone calls that flew back and forth between these three judges' chambers before this decision was announced. Circuit judges in general write way fewer separate opinions than their brethren upstairs at the Supremes, and they genuinely try hard to avoid this kind of chaos where all three judges fly off in different directions. They also know that the poor district judges have to apply what comes down from the courts of appeals on a day-to-day basis — and a three-way split opinion like this one is worse-than-useless guidance for the district courts.

In fact, it would not surprise me a bit if this opinion — or rather, these opinions — were already made the subject of preliminary discussion among some or even all of the other Fifth Circuit judges about the possibility of en banc rehearing, even before the opinions were released. Three judges split this badly might well have already asked for some ideas from outside their own panel, and just as a "heads-up," panel members sometimes pre-circulate opinions in cases that they expect may become controversial.

In the usual situation, when it comes to consideration for en banc review, there are typically at least two judges who are defending an opinion in which both of them have joined — defending it by urging the full court that the case need not be reheard, and that their panel opinion should just be left alone. This is something poorly understood by most of the public and even by many lawyers: Whether just a two-judge majority or all three judges in a unanimous panel decision, those judges become, in effect, the strongest defenders of their work — and those two or three judges (and their staffs) can indeed turn into fierce and very capable advocates amongst their peers, more often than not becoming considerably more effective than the lawyers for the actual litigants! They're not doing anything even remotely unethical, because they're not advocating for one side or the other in the case. Rather, they're advocating particular legal arguments. But to the outside world, and especially to the losing litigants, that might seem a distinction without a difference.

Sometimes, because of that advocacy, coalitions among the judges on the merits begin to coalesce before a vote is taken on whether to rehear the case en banc. But quite often, even when they've been persuaded that a panel decision needs a closer look by the full court, or when they've instead voted against rehearing (but been outvoted), many judges are, quite appropriately, reluctant to begin committing to a position on the merits before the rehearing briefing and argument. Nevertheless, you still see that advocacy making a difference in the conferences after en banc oral arguments, and as proposed majority and dissenting opinions begin circulating afterwards.

Here, though, the three-way split among the panel's judges is likely to dilute the effectiveness of anyone's advocacy for any particular result on the merits, while simultaneously making some sort of en banc rehearing more likely. And it means that there's probably no "favorite" going into en banc proceedings, no position that already has substantial momentum.

*******

The chances for eventual Supreme Court review aren't nearly as good, though, to the extent that can be predicted at this point. For one thing, the en banc Fifth Circuit would keep trying to find some way to fry the dog's breakfast of Supreme Court precedents back into something that resembles an edible hash. What the en banc court produces might not be pretty, but it might not be sufficiently ugly that the Supreme Court would want to mess with it. Beyond that, though, Supreme Court Justices sometimes refuse to grant certiorari in cases in which they predict they're going to splinter badly themselves; you may not be able to get the necessary four votes to grant cert, in other words, unless at least four Justices think they'll probably be able to get five justices to at least mostly agree with each other.

And quite frankly, I'm concerned that if the Supreme did agree to hear this case, they'd end up making the Fifth Circuit panel's three-sided opinion look good in comparison. It wouldn't surprise me if the Supremes came up with seven or eight different opinions.

Lethal injections and the twitching, hyperactive Eighth Amendment

Saturday's WaPo reports that lethal injections as a capital punishment method are "on hold" in two states — California and Florida. It's a fact-filled article with a somewhat misleading lede:

Executions by lethal injection were suspended in Florida and ordered revamped in California on Friday, as the chemical method once billed as a more humane way of killing the condemned came under mounting scrutiny over the pain it may cause.

As the rest of the article reveals, that's a fair description of what's been going on in California, but not in Florida.

The concern in Florida arises from the botched placement of the IV line through which the lethal drugs were to be injected in a single execution: Instead of going into a vein as intended (whence they would have rapidly circulated throughout his body), the needle through which the chemical mix was pumped went into "the tissues of his arm" (presumably muscle tissues), which in turn required a second injection to induce the subject's death. This happens with unfortunate frequency at hospitals, clinics, and blood banks — it's just "a bad stick," and it reflects either (a) a bad technician, or (b) an unlucky attempt by a good technician, or (c) unusually difficult to locate and pierce veins, or (d) a very dull needle. (And a good one would have promptly realized that he missed the vein.) So there may be reason for Florida to examine whether it needs more capable people performing the lethal injection. But as Gov. Jeb Bush's quoted comments make reasonably clear, I don't think Florida is considering abandoning lethal injection, much less the death penalty generally.

The California situation, by contrast, is much more interesting because it's a direct challenge to the intended technique by which lethal injections are carried out in more than 30 states, including Texas. I haven't read the latest opinion from the San Jose-based federal judge in California that's based on the evidentiary hearings he's conducted [update: I've done so now, see below], but here's the WaPo description:

In the California case, attorneys for condemned murderer Michael A. Morales had argued that because inmates are paralyzed by the drugs, witnesses cannot be sure the convicts are unconscious when they are executed — meaning they may be in terrible pain. The court agreed in February and ordered corrections officials to either stop using the two drugs or provide doctors to ensure Morales was unconscious.

Two anesthesiologists agreed to observe, and Morales's execution was underway when, in a last-minute decision, the doctors backed out after an appeals court ruled they would have to step in if anything went wrong.

Since then, U.S. District Judge Jeremy D.] Fogel has held extensive hearings on how executions are conducted.

He ultimately found that executioners were not properly trained and made mistakes in administering the drugs and that California's execution chamber is poorly suited to its purpose.

The state's "implementation of lethal injection is broken, but it can be fixed," Fogel wrote.

The Houston Chronicle adds to the WaPo story with this bit of local information:

The announcements out of Florida and California bear no weight in Texas, according to Robert Black, spokesman for Gov. Rick Perry.

"Perry has no plans to announce a moratorium on the death penalty and executions," Black said Friday. "He believes it is administered fairly, justly and in accordance with the law."

Texas by far leads the nation in the number of executions carried out since the death penalty was reinstated in 1977. This year, 24 Texas inmates have been put to death.

*******

In trying to figure out what this all means, it's very important to distinguish between the various issues being raised.

It appears, for example, that in both California and Florida, there are concerns as to how capable the executioners are. That's an issue that's been a subject of more than passing interest for centuries — the best headsmen being prized for their ability to behead with a single blow, the scarcity of such headsmen leading to Dr. Guillotine's invention, and so forth. In crude terms I've lifted from products liability law, this could be likened to a "manufacturing defect" — and I suppose death penalty opponents who liken Texas in particular to a "death factory" might find that apt.

There's a separate question in California and elsewhere, however, as to whether the design of the procedure — even if performed skillfully and exactly as intended — is appropriate. That might be likened to the products liability concept of a "design defect."

(In products liability law, the engineers' placement and materials specifications for the Ford Pinto gas tank might be an example of a design defect. If, however, someone at the Ford plant forgot to fasten more than one of the four bolts intended to secure the gas tank as originally designed, causing the gas tank to detach and blow up after the car was driven 1300 miles, then that would be a manufacturing defect, one that typically would not affect all or even most Pinto buyers but only the unlucky buyer of that particular car. But if gas tanks need to be secured by twelve bolts and four is not enough to make gas tanks sufficiently safe for their intended use ("sufficiently" being a flexible standard that takes into account utility, cost, risks, etc.), then the lack of twelve bolts on the plans would be a design defect. Is it the guy with the drafting table and blueprints, or the guy with the power wrench that caused the problem? Catch on?)

For reasons of social policy, there are perfectly good reasons why responsible citizens should want to see these issues addressed. We ought to have capable, professional executioners. We ought to have procedures that — consistent with the reasons why lethal injection was adopted in the first place — are well-calculated to uniformly cause death without torture (i.e., the deliberate infliction of pain before death).

The California case in particular also raises questions of professional ethics. It's inappropriate to trivialize, for example, the concerns that a physician may have about administering lethal injections — and that, for at least some physicians and medical ethicists, is an issue not merely with capital punishment but with "assisted suicides" (a/k/a euthanasia). But there's no reason in principle why a system cannot be designed in which physicians', pharmacists', and or other scientists' input has been gathered and considered, but yet the actual performance of the execution is done by well-trained personnel who are not subject to those professions' ethical restraints.

All those questions are distinct, however, from the constitutional issue of whether lethal injection in particular, or the death penalty generally, constitutes "cruel and unusual punishment" across the board. You would have a very hard time persuading me, for example, that the California judge's concerns about the "suitability" of California's execution chambers could rise to a constitutional level unless they're akin to an Iron Maiden; that they may be cheerless and without lovely wallpaper, that the table may not be well-padded, or so forth ought not be of any constitutional significance whatsoever. The WaPo story has this quote:

"This demonstrates that there is no happy and kind and nice way to execute someone," said David Elliot, a spokesman for the National Coalition to Abolish the Death Penalty. "Execution is a messy business."

There's a guy who's never heard of a morphine or heroin overdose, I guess. But it's also a guy who's badly confused on the basic issues, because capital punishment isn't meant to be "happy and kind and nice." Capital murderers have uniformly not been "happy and kind and nice."

Unfortunately, recent Supreme Court precedents on what constitutes "evolving standards of decency" — the Court's touchstone for deciding what constitutes violations of the Eighth Amendment's prohibition against "cruel and unusual punishments" — are themselves cruel jokes. "Evolution" is not an appropriate term for a mushy standard that's flipped back and forth in a matter of a few years rather than over decades — as did the "constitutionality" of executing 17-year olds between Stanford v. Kentucky in 1989 and Roper v. Simmons in 2005. Even if you're an Al Gore-like proponent of a "living and breathing Constitution," you ought not be arguing that the Constitution is twitching and hyperactive.

I'd read the Eighth Amendment to permit any execution technique that isn't designed to cause, or administered so poorly as to in fact routinely cause, a temporally significant\note1/ amount of torture before death. Lethal injection, hanging, firing squads, the guillotine, the electric chair — properly designed and professionally applied, each of those methods produces instant death. (I'm less persuaded about the gas chamber, from what I know of it.)

Thus, I have no problem with commissions studying ways to handle the "design" and "manufacturing defect" problems, and ditto for the ethical problems.

But it's clear to me that whatever any commission or study concludes, the solution to the constitutional question begins at the White House, with its next stop being the floor of the United States Senate.

----------------------------------

Update (Sat Dec 16 @ 7:00 am): My friend Patterico has read the California opinion, and offers a brief preliminary comment that he's "not impressed." He promises a more in-depth treatment soon, and I'm keenly interested to see his take.

I've skimmed the opinion, and my initial impression is that the rulings it makes and the relief it orders aren't very consistent with the supposedly settled law it relies upon.

I've certainly seen lots, lots worse as far as wild and unrestrained judicial activism goes. And on close reading, it's clear that Judge Fogel's concern is, for the most part, with whether the actual set-up as typically used in California executions will reliably and verifiably ensure that subjects are indeed rendered unconscious before the lethal (and potentially very painful) chemicals are administered. In other words, using the terminology I offered above, he's looking at what he perceives to be design defects that would apply to all executions, and not mainly at manufacturing defects (deviations from what the system's designers intended).

But in a couple of instances, he seems to be trying to phrase manufacturing defects in terms that will make them into design defects — as, for example, when he criticizes the "screening of execution team members" on grounds that seem to me to be mostly particular to specific individuals, without any showing of even a theoretical or likely connection between those grounds and an actual failure of the system to work as intended.

Judge Fogel quite correctly says early in his opinion (citations omitted) that "binding precedent holds that the Eighth Amendment prohibits only 'the unnecessary and wanton infliction of pain,' and procedures that create an 'unnecessary risk' that such pain will be inflicted." But then he proceeds to make himself a micro-manager of the California prison system's procedures by interpreting "unnecessary risk" to the broadest extent imaginable.

I don't think, for example, that the Eighth Amendment requires the State of California to use graph paper instead of plain paper for their electrocardiogram (EKG) tracings — even if one can hypothesize that graph paper would be somewhat more helpful in trying to decide, after the fact, from a  particular subject's heart rate that he was or wasn't thoroughly anesthetized. If I were a California warden, or even a California legislator, might I think graph paper ought to be specified? Sure. But does the Eighth Amendment constitutionality of an entire execution system really turn on the difference between graph paper and plain paper in the machine that goes beep?

Or is the lighting in the death chamber really a matter that rises to constitutional import? 60 watt bulb — unconstitutional; 100 watt bulb — constitutional? Is that what the drafters of the Eighth Amendment intended? Or is that even what "evolving standards of decency" require? Surely even a living, breathing Constitution would sneeze at that question!

Bottom line: I'm not outraged — California can indeed probably address all of the picky points that Judge Fogel has raised, and Judge Fogel certainly didn't try to declare lethal injections, even with the current chemical mixtures intended to be used, as being always unconstitutional. And I'm sure he's a smart guy, and he certainly does appear to have worked hard to gather information — including by holding hearings at San Quentin. If his opinion were merely a report of recommendations to the California prison system, or if he was a person within that system responsible for reviewing its policies, procedures, and facilities, it would be fine. But as an example of proper application of constitutional principles to the big-picture subjects to which they ought to be applied, I'm not impressed with this opinion either.

And Judge Fogel probably could have achieved the exact same effect — that is, causing a series of small changes in the California system that collectively would probably improve it — by writing an opinion that simply cataloged the perceived deficiencies, thus high-lighting them for the press and for likely legislative or administrative correction. He didn't need to cloak each of the individual nit-picks with constitutional significance. And he certainly ought not have.

----------------------------------

\note1/  "Temporally significant" perhaps ought to be defined for this purpose as "the longest amount of time the killer spent in killing any of his victims." But I'd settle for a bright-line (if admittedly arbitrary) standard as short as 10 seconds, so long as it didn't change every time the Constitution (or Justice Kennedy) breathes.

Inside the robes

Every lawyer who has ever stood before a judge, in any capacity, has thought to him- or herself: "I could do that." Every single one.

To which the appropriate response is: "Yeah, but ...."

Three long war-stories follow, with associated musings.

*******

I've had quite a few nice desks and desk chairs in my career. But I've never had one with flags in back. I once had a corner office in a downtown Houston skyscraper, but I've never had a 20-foot-tall, 60-foot-wide expanse of white marble behind me while I sat on a dais in a cathedral built to the rule of law. I once had the extraordinary, thrilling privilege of being a trusted law clerk for someone whose signature could speak for a federal court of appeals, only a step below the U.S. Supreme Court, and whose writ ran from the far tip of Florida to El Paso, Texas — but my own signature has never been more than that of an advocate for a litigant. In my younger days, when I cut a much trimmer figure, I had a couple or three well-cut, well-made suit-and-tie ensembles. But no power tie I've ever worn implied a fraction of the power of a simple black robe woven from a cotton-polyester mix.

Let's suppose you're a new judge. You've raised your hand, you've sworn a simple oath. Before that, the voters of your county, or perhaps the senators of your state or of the United States, have thrust a thumb up or down while your name was the subject of deliberation. But in only a very few instances has that deliberation been truly deliberate, for to tell the simple truth, most judicial candidates or nominees are rubber-stamped once they've jumped the hurdles to get to the point of electoral or legislative confirmation.

"I could do that," think the lawyers appearing before them, "I could be rubber-stamped. Then I could just swear that oath — easy-peasy! And then when I crooked my finger, a sheriff's deputy with a pistol on his hip would put the cuffs on that lawyer or this litigant, and then (clank-clank!) take them right to jail.  Show me no contempt, baby! I'll teach you! ...."

Except it almost never, ever works that way. Oh, the deputy would indeed obey that instruction. But the brutal, cold fact of the matter is that except in the most exceptional of circumstances, you won't give that instruction. Because suddenly those flags behind your chair, that dais, the expanse of white marble or plain burled Texas oak, the gavel, the cotton-polyester robe — holy cow, how those things all can choke!

The pomp, the circumstance, the "Your Honors" and "May it please the Courts" — my gosh, even the fact that people capitalize the title of the office you hold! — all that settles around you, with decades and centuries of accrued, accreted, embedded responsibility.

What a serious, lonely business it is — being a judge.

*******

First war story:

I mentioned in a recent post how infrequently — meaning never — I've actually seen or heard a trial judge bang his or her gavel. The gavel, like the robes and the dais and the bailiff and the flags, all remain powerful and important and essential symbols of authority. The power they symbolize is indeed real, but the obvious displays of it are mostly left latent.

But some months ago, in chambers, during some slow moments in the fine grind of justice, I caught a local judge in a reflective mood. He started musing over how it had felt to him on one of those very, very rare occasions when he'd had to use a fraction of that latent, vast power — when he'd found his patience exhausted, his stamina stretched near to breaking, and the dignity of his office (not him, but his office) insulted beyond the bearable.

This judge has had his seat for a dozen years. Because of the nature of the court over which he presides, he sees the great unwashed masses, the busiest and often least-capable lawyers, and the constant press of high-volume, form-pleaded, and mass-produced justice every day of the week, fifty or so weeks out of every year. He's a patient man, and he normally runs his courtroom with the wit and flair of a confident circus ring-master. But this day, in chambers, with his guard down, he was musing — one professional to another, albeit only one of us had a black robe hanging from the hook leading to the courtroom — about an occasion a few weeks earlier that had marked the very first time in his judicial career he'd held someone in contempt of court. It gradually dawned on me that this judge was thinking aloud, second-guessing himself in my presence, as he tried to figure out how he might have handled things differently. I know that judges talk to each other about such things, but to be taken into his confidence, to be asked for my own opinion on that topic, was as high a complement as I've ever been paid. And as it turned out, after hearing the whole story, I had nothing constructive to tell him — except that I'd probably have laid some serious smack down a lot sooner than he had.

The universally true — yet still stunning — fact is that as a general rule, judges have more respect and respectful awe for their authority than anyone else has! For everyone else almost all of the time, it's theoretical authority. For them, though, they wear it with the robes, and it's as ever-present as the flags behind their chairs.

*******

"Ah," you say, "but power corrupts, and absolute power corrupts absolutely!" It wouldn't take you long, I'm sure, to find instances described in the pages of BeldarBlog in which judges and justices have been drunk on their own power, out of touch with reality, and profoundly unwise. And you'll readily find, among my pages and posts of judicial critiques, many more instances in which I think particular judges or panels of judges have simply gotten things badly wrong, despite the best of intentions.

Which is to say: They're human, inside the robes. They're imperfect, and most of them are acutely, intensely aware of that fact. Most of them spend a lot more time worrying about it, and trying to correct their imperfections, than most folks would ever imagine. And even the most high and mighty of them is still capable of being human.

*******

Second war story:

Twenty-five odd years ago, during my first year of practice when I was about 23 years old, I was waiting in the ante-room outside the office of the local federal judge who was reputed to be most habitually drunk on his own power and pomp, who looked like a central-casting example of the imperious judiciary, and who was known far and wide for flaying ill-prepared lawyers in open court. This was a routine pre-trial conference on routine scheduling matters in a routine case. But His Honor's secretary stood up from behind her own imposing desk, and came around to whisper in my ear, "Judge ___ wants to speak with you before he sees everyone else."

Say what?

She led me into the sanctum sanctorum, the judge's private office, where he sat in all his leonine glory. Consistent with his reputation, this judge wore his robes even in chambers, and I was pretty sure he had his suit-coat on underneath.

"Mr. Dyer," said this judge, "the clerk of my court has brought to my attention the fact that you've apparently neglected to return to him the signed and notarized oath form confirming your willingness to submit to the rules and requirements of the Bar of the Southern District of Texas. That being true, even though you've submitted the application and paid the fee and been approved by the Court and taken the verbal oath and gone through the installation ceremony, you're not, technically, authorized to appear before me here today on behalf of your client."

Oh ... my ... sweet ... Lord, I'm thinking during the space of the next three heartbeats, having left my poor client without counsel, I'm about to be thrown out of the courthouse into the street, whence word will rapidly spread to my law firm, whose partners will have someone new to sit in my office by noon tomorrow, undoubtedly someone who's not such a complete fool as I've been —

"You'll tend to that before today is done, won't you?" asked the judge. I gulped and nodded, too stricken to speak aloud.

And I suddenly I had this epiphany, this rush of realization: This sixty-something-year-old man, cloaked in the robes of a United States District Judge, almost glowing in all of the authority and power inherent in and implied by that title, a man who probably wore a necktie to dinner, a man whose grandchildren probably believed he sat at the right hand of God with lightning bolts clutched casually in his own right hand — this judge could still remember what it was like to have been a twenty-three year old lawyer who'd made a stupid personal blunder of no substantive consequence, but one that could be very, very embarrassing if not pardoned by an act of undeserved judicial grace.

He pressed the buzzer on his desk: "Send in the others," he commanded. In trooped a half-dozen other lawyers, each of whom was wondering what the hell the judge had wanted to talk to me about privately before he brought them all in. I could see the question in their eyes, their arched eyebrows, their puzzled glances as they arrayed themselves in the chairs around the judge's massive desk.

Oh, nothing important, I answered them in my head, He was just being a really decent, kind human being, cutting me a little slack that couldn't conceivably hurt you and your clients. Just about every stroke of his pen quite literally determined the fates of people and companies, the rich and the poor, the humble and the mighty — but he'd taken a moment out of his day to enforce the rules to which he was devoted in a kindly, compassionate, and private fashion for the benefit of a young lawyer entirely unknown to him except as an anonymous, fledgling brother at the bar.

I could have kissed him. But that would indeed have resulted in me being thrown in jail.

*******

Third war story:

One of the worst judges I've ever appeared before was one of the nicest people I've ever met.

It's part of the nature of a judge's job that he or she has to rule against someone in the course of ruling for someone else. More precisely, they're ruling against someone's position, someone's argument, someone's claim or defense. I've never seen a judge point a finger at a litigant or his/her lawyer and say, "Hey, buddy, you're a loser, get outta my court!" (I certainly have seen litigants and lawyers who deserved that, however.) But in any event, like the "honest umpire" of which Chief Justice John Roberts spoke during his confirmation hearings, judges are obliged by their job descriptions to call balls and strikes and, sometimes, call someone out and someone else safe at the plate.

But it's entirely possible to be a smart, hard-working, dedicated professional, and a compassionate, wise human being — and yet to lack, or find it hard to summon, the ability to tell people: "Tough luck, I've decided that you lose."

So it was that in the late fall of 1987, I was a Baker Botts senior associate sitting second-chair in a state-court securities fraud jury trial that had already run for six full weeks. The first-chair partner — a superb trial lawyer named Joe Cheavens — and I were very well prepared for the trial, and we had been  eager to see it move briskly. Our opposing counsel, by contrast, was very smart and exceedingly clever, but he and his team were not very well prepared when the trial started. With each passing week of trial, however, as our opponent fumbled around putting on his case, our amiable and indecisive judge gave him the time to figure out what his case ought to be, so that his lack of preparation was becoming less and less of a liability. And although she was certainly trying to be fair, the judge had already reversed herself on several key rulings, and then had reversed herself at least once and sometimes twice again on some of them. Our team was beginning to show serious bruises around the head and shoulders, and the trend was decidedly unfavorable.

Our corporate client's intentions and motivations in complicated past transactions were under scrutiny, so among the key witnesses at trial were the deal lawyers who had advised our client in those transactions. One such witness, fearing (with good reason) the possibility that his and his firm's actions might become the subject of later malpractice claims, brought along one of his partners — a "Litigator," a young woman probably five or so years senior to me — to sit in the audience to keep watch. And Joe Cheavens was indeed doing his considerable and very best to show that Mr. Deal-Lawyer had been conflicted, incompetent, or worse in his work for his former (and our current) client.

During a break in Mr. Deal-Lawyer's testimony, I looked out one of the tiny rectangular windows in the doors leading from the courtroom to the outer hallway, where I spied the "Litigator" sitting on a hallway bench. I noticed that she was engaged in earnest conversation — with two of our jurors.

Quick! Find the bailiff! Quick! Have the bailiff find the judge! Quick! Ask the judge to direct the bailiff to snag the "Litigator" away from those jurors and into the judge's chambers. Grab the court reporter, then grab opposing counsel, for a frantic huddle. "What on earth were you talking about with those jurors just now?" demanded the judge.

"Well," said the "Litigator," "the jurors all knew from the introductions Your Honor made that I was a litigation partner at Mr. [Deal-Lawyer]'s firm. And so one juror was just listening, but this other juror approached me with a legal problem he had. See, he's an officer in his Knights of Columbus chapter, and they'd contracted for a dance band to play at one of their functions, but then the band didn't show up. So he was asking me about the various elements of breach of contract, and fraud in the inducement, and measures of damages —"

"You're aware that those are all legal principles," interrupted the judge, "on which I'll be charging this jury in this case?"

"I ... I suppose so, but —"

"And in the midst of Mr. Cheavens' cross-examination intended to destroy the credibility of your partner Mr. Deal-Lawyer, you've seen fit to offer legal advice to two of our jurors on those very issues?" asked the judge.

"Well, then, I ... I guess I really shouldn't have done that." She sniffed. "And I guess that I really shouldn't have told that juror that because I'm a good Catholic like him, my firm and I would take on his Knights of Columbus chapter's case against the dance band as a pro bono matter, should I?" finished the "Litigator" (lamely).

Duh.

The mistrial motion, and the ruling granting it, were foregone conclusions. Of all the trial judges I've seen in my career, this judge had the worst judicial temperament — which is to say, the greatest reluctance to rule, and to declare one side or the other a winner and the other a loser — of any judge that I'd seen before or that I've seen since. But pushed by these extraordinary circumstances into making a definitive ruling, this good-hearted, intelligent, well-meaning, and unfortunately un-judicial woman nevertheless gathered her resolve and did that which her duty required.

She didn't grant the mistrial because she was afraid of being reversed by the appellate courts if she didn't. (Although she would have been.) She granted the motion because it was the right thing to do, even if it was an extremely difficult ruling to make. The weight of her robes — the weight of authority implied by those robes, the accumulated force of the system revering the rule of law of which she was an intrinsic part — compelled her to reach that result. "You've got to start over," she told the plaintiff's counsel — much against her personal preference, which was to avoid controversy and to avoid resolving controversies.

"But — but — but —" sputtered our opponent, who certainly knew how the trial had been trending, "it wasn't my fault!"

"That's true," said Her Honor.

"And that will mean six weeks of work, all that time, all those legal fees and expenses on both sides — all wasted!"

"That's true too," said Her Honor, "And I hate to say it, but: That's tough."

*******

What an incredible tightrope we ask our trial judges to walk! "Be firm," we insist, "but be unfailingly polite. And," we add, "give everyone a full, fair chance to be heard. But don't waste time." Uh-huh. "Show super-human dispassion," we insist, "but don't lose your humanity. Got all that?"

Thousands of men and women — folks who regularly step into their boxers or their knickers one leg at a time, who had to throw away a burnt piece of toast this morning because the toaster malfunctioned, whose kids broke their next-door-neighbors' window yesterday, and whose necks are developing skin rashes from those damned cotton-polyester robes — answered that call today. They will again tomorrow. And they will again the day after.

Oh, sure: Any ol' lawyer could do that.

But most of us — don't.

Is that a Glock under your robe, Judge, or are you just glad to see me?

On May 29, 1979, as I was concluding my second year of law school, I had the good fortune to be an invitee in the chambers of one of the "Unlikely Heroes" and most legendary judges of the U.S. Court of Appeals for the Fifth Circuit, Irving L. Goldberg. I'd submitted an application to be among his law clerks for 1980-1981, and he'd graciously invited me to come in for an interview. As we were getting acquainted, he received a phone call — something urgent, I knew, because he'd told his receptionist to hold his calls while we were meeting — and I quickly gathered from hearing one side of his phone conversation that something exceptional, and exceptionally bad, had just happened. In short succession he got a half-dozen more calls, each very brief, and by the time he'd finished I had figured out what had happened.

I'd just observed the Fifth Circuit grapevine in action, and what had set it abuzz was that for the first time during the Twentieth Century, a federal judge had been assassinated outside his home — specifically U.S. District Judge John H. Wood, Jr. Judge Wood sat in San Antonio, part of the Western District of Texas, and appeals from his court went to the Fifth Circuit. The obvious concern sweeping the chambers of the judges of the Fifth Circuit was that the likely assassin had been provoked by one of Judge Wood's rulings or sentencings, most likely from a criminal case — and the odds seemed pretty high that a three-judge panel of the Fifth Circuit had also passed upon that litigant's appeal as well, perhaps making them targets too.

This was in an era when there were not so much as metal detectors at the entrance of most federal courthouses, including the one in Dallas — maybe not even a security guard visible (beyond the U.S. Marshals who came and went escorting prisoners). As I exited, though, I saw that the security status of the building had suddenly changed — Marshals with side-arms and in some cases shotguns were roaming the lobby, the stairwells, and such. They were, if anything, trying to be very conspicuous with their presence, and they were succeeding.

As things happened, my application with Judge Goldberg was still pending when I got an invitation to clerk for Fifth Circuit Judge Carolyn King in Houston, which I accepted immediately. (One doesn't apply to clerk for a judge whose offer one is unwilling to accept immediately.) Once during the year of my clerkship in 1980-1981, one of my co-clerks accidentally stepped on a floor switch tucked away beneath a table in our chambers library, and within about 90 seconds two Marshals with drawn weapons were there with us in the room. We were embarrassed, impressed, and comforted. But even then, security in the building was remarkably light — still no metal detector, and the small parking lot behind the building where the judges had reserved spots was unfenced, without a security camera. The judges had a private keyed elevator at the back entrance from that lot that their law clerks were also allowed to use, but that was as much for privacy as security, I think. Chambers doors were generally unlocked — no door-unlocking buzzers and intercoms — and clearly marked to show their occupants.

*******

Obviously things have changed since then — in society generally, but certainly in courthouses, both state and federal. And every judge I've ever met, at any level, has been quick to praise and express appreciation for their bailiffs and other courthouse security personnel.

But the bailiff may not be the only person in the courtroom who's packing heat. The National Law Journal has an article discussing judges who themselves carry guns (hat tip: InstaPundit):

Earlier this month, a Florida judge was ordered to accept mentoring after warning a defense attorney that he was "locked and loaded." In May, a judicial ethics committee of the New York State Unified Court System found that it was ethical for a judge to carry a pistol into his courtroom.

In Nevada, Oklahoma and Texas, incidences of violence in the past year have prompted new laws or solidified rules allowing judges to bring guns into courtrooms.

"Judges in our courthouse have been carrying guns almost all the time," said Cynthia Stevens Kent, a Texas judge in the 114th District Court, where a man in a family law case killed his ex-wife and son last year on the steps of a Tyler courthouse.

"We feel strongly about providing adequate security, but it comes down to personal responsibility. And you've got to take responsibility for your own safety," [Judge] Kent said.

I was unsurprised to read that Texas may be out front of many of its sister-states on the issue of judges bearing arms:

In Texas, which permits state judges to carry concealed handguns into courtrooms, a new law became effective that expands that right to include federal judges and district attorneys. The law followed the Tyler shooting.

"We believe each judge should be able to make sure he has a system of self-defense," said [Judge] Kent, who wears a shoulder harness and carries a gun at all times. "One of our biggest areas of target is when we're in the court making decisions."

Judge Kent also testified before Congress in 2005 on the subject of security in the judicial system, during which she pointed out that the threats aren't always just to the individual participants in that system:

As any person in America, it is my personal responsibility to use common sense in protecting myself against acts of violence. As a Texan, I take full advantage of my Constitutionally protected right to self defense. However, these threats are not just a personal threat against me and my family, these are acts of domestic terrorism and are meant to disrupt our judicial system and our civilization.

And in a comment that probably related to the controversy then on-going about U.S. Senator (and former trial and appellate judge and state attorney-general) John Cornyn supposedly "stirring up hatred against judges," Judge Kent stressed that this isn't, or shouldn't be, a partisan issue:

When judges are subject to threats, intimidation, and assault, our entire system of justice is under attack. Although free dialogue and public debate regarding judges is certainly important and constitutionally protected, responsible legislators and politicians should understand that when someone paints with a broad brush the simple country judges of America can be smeared with the partisan paint of the day. Inciting the public to distrust, disrespect, or threaten the members of the judicial system only invites anarchy. There are good and bad judges just as there are good and bad plumbers. However, keeping our judges secure and independent helps prevent justice from failing the designs of our founding fathers and the needs of 2005 America.

And on March 9, 2005, before her Congressional testimony, Judge Kent had a brief moment of scary fame on CNN:

COOPER: We take you back to Tyler, Texas now, where, on the 24th of February, the town square was turned into a war zone. A heavily armed man heads to the courthouse, where armed guards engage him in a fierce gun battle.

Sean Callebs takes us behind the headlines again, shows us what happened inside the courthouse as the battle began.

(BEGIN VIDEOTAPE)

CALLEBS (voice-over): This is Smith County Courthouse surveillance tape, deputies rushing to confront a gunman who has already killed. While the shootout played out in the town square, chaos on the second floor. A capital murder trial interrupted by the unmistakable pop of weapons firing.

UNIDENTIFIED MALE: Get down. Stay down.

CALLEBS: Deputies, guns drawn, prepare for the worst. In the back of the courtroom, Judge Cynthia Stevens Kent is ushered to safety. For the first time in recent years, the judge realizes she has left something important in her car.

JUDGE CYNTHIA STEVENS KENT: I carry a Smith and Wesson .38 revolver. A lot of the judges do carry personal protection. Of course, this is Texas, OK? And in Texas, I'm a Second Amendment gal. I like the revolver.

*******

I've been fortunate in my law practice in that with rare exceptions, the civil litigants with whom I've dealt have mostly been, well, civil, or at least non-violent. (Among the exceptions was the CEO of a publicly traded company who tried to take a swing at me in a videotaped oral deposition. His lawyer, a very petite woman who now is on the federal bench, literally grabbed him by the ankles and hauled him back across the conference table, plopped him back into his executive armchair, and rolled him out into the hallway.) Like many Texans, especially those raised in a rural or semi-rural setting, I've got some deer and quail hunting in my background, and some time at the firing ranges. I'm comfortable with guns, but I've never felt the professional need to carry one, notwithstanding this amusing conclusion to the NLJ article (emphasis mine):

On Jan. 1, Kansas plans to permit judges and whomever they designate to carry concealed firearms in the courtroom. Phillip Journey, the state senator who authored the bill and a practicing attorney, said he spent a decade seeking to overturn a blanket prohibition on firearms in the courthouse.

"If I had a judge's permission, I'd do it every day," he said of bringing a gun into the courtroom. "Guns are like lawyers: Better to have one and not need it than need one and not have it."

I have been compared to a "hired gun" before, but I think that was meant metaphorically.

While it's far from unknown, however, for disappointed litigants in both civil and criminal cases to blame the prosecutors and/or their own lawyers, us "hired guns" aren't typically the final decision-makers, and just by the nature of their job responsibilities, judges in general are at a higher risk. I don't very often have occasion to think about it, but when I do, my working assumption is that any judge I appear before might be packing. I certainly could picture the late Judge Goldberg, liberal but often libertarian and nobody's wimp, with an ankle holster. I probably couldn't have imagined my own judge carrying twenty-five years ago, but now? Maybe.

And I've appeared from time to time before state-court judges who not only were armed, but were not at all shy about ensuring that the lawyers who practiced before them knew about it. What good, after all, is a secret deterrent? The casual display of the weapon was typically done in chambers rather than in open court, and contrary to Blue-State assumptions about Texans, only very rarely included any fast-draw practice or shooting of tin cans off a fence.

But I'm always vaguely aware of — and every time I think of it, more than vaguely grateful for — the security personnel I deal with at the courthouse. I sometimes get funny looks, but always returned appreciation, when I say to the security guards as I'm going through the metal detectors, "Thank you for helping keep us safe." (Joke about them privately if you must, but the fact is that they do help.) And while I've appeared before some judges whose reversal rates in the appellate courts may suggest they're more prone than others to err, I've never been worried about one of them going postal.

New judges in both the state and federal courts typically get training now on "how to be a judge" — focusing on the administrative tasks, mostly, since they're presumed (rightly or wrongly) to already know quite a bit about courtroom practice and substantive law. But it wouldn't surprise me too much to see some ambitious Texas legislator introduce a bill to include target-range experience among that training, along with some tips on how, for instance, to keep the new bailiff on duty from mistaking the pistol-packing judge, perhaps not yet robed because she's merely en route to her chambers, from an ordinary litigant, witness, or lawyer. Risks are inherent in firearms, there's just no denying that. But risks are also inherent in courtrooms, and risks associated with firearms can be substantially minimized through training and forethought.

And if we can't presume that the person in the black robes is one of the "good guys" in addition to being one of the likely targets, then why are we letting them decide our fates in court?

Leeches, stents, modern medicine, and lawsuits

"Weekend stent blogging" never quite caught on, but stories like this one in today's WaPo, headlined "New artery stents raise safety concerns," may change that:

A flurry of recent research has raised alarm about the safety of a new generation of stents that have quickly become the most commonly used devices for treating clogged arteries, creating widespread concern about how to care for millions of heart-disease patients.

The stents, tiny drug-secreting mesh tubes used to prop coronary arteries open, appear to carry a small but significantly increased risk of causing blood clots, compared with older "bare metal" versions. That may boost the patients' chances of suffering a heart attack or dying, according to the studies, including one released yesterday.

Two such "drug-eluting stents" have resided in a pair of my coronary arteries since last July. So I'm sort of reminded of the story about the guy who slips and falls from the observation deck of the Empire State Building. As he's falling, his cell phone rings. It's his best friend. "Can't talk long right now," says the fellow, "I just fell off the Empire State Building observation deck." In shocked tones, the friend blurts out, "Oh my God, how are you?!?" "Meh," answers the fellow, "So far, so good."

My ex is a physician, and I used to tease her by saying, "While my predecessors as lawyers were doing things like writing the Constitution and the Bill of Rights 200-plus years ago, yours were leeching George Washington to death!" Of course, now leeches are back in medical fashion, if not quite considered to be the panacea they were in Washington's time. This time there's hard science, a substantial body of medical evidence, supporting their use. But anyway, back to the WaPo story:

"This is a public health issue of great importance," the FDA's Daniel Schultz said yesterday. "Our goal is to provide the American public with a coherent, understandable explanation of the risks and benefits associated with these products."

The situation, which has triggered an intense, sometimes bitter debate among cardiologists, illustrates the potential dangers of assuming that new technologies are necessarily superior and of adopting them widely before long-term studies are done, experts said.

"Everybody wants to be perceived as doing the most modern thing for their patients and fear being labeled someone who is old-fashioned and not using the latest and greatest thing," said Spencer King of the American College of Cardiology.

I'm very, very well acquainted with the concept of "informed consent" as a medico-legal matter. (Great term, that: "medico-legal." Nobody really knows what it means, but it makes you sound more knowledgeable to say or write it.) And as they handed me the consent forms to sign, I remember thinking, while flat on my back in the cardiac intensive care unit at Methodist Hospital last year, "These forms pretty much boil down to 'The stuff that we're proposing to do to you might hurt or kill you, but we'll try not to, and if we don't do that stuff, you might be hurt or killed anyway.'" As my cardiologist was running a catheter from an incision in my groin up to my heart, I didn't ask him, "Hey, Doc? For these new drug-eluting stents, how many years of evidence from controlled studies are in yet as to whether they might be more likely than plain stents to cause clots later?" Pretty much whatever answer he might have given me then, I'd still have just asked, "So what would you do if you were me, Doc?" Based on what he knew then, he almost certainly would have said, "I'd want this stent." And that would have been plenty good enough for me.

I don't know what he'd say if asked that question today — which is to say, I have no idea if he's been in that recent "heated debate" among cardiologists, and if so, on which side. Another WaPo story reports that a just-released Duke University study "also showed a marked reduction in the need for repeat angioplasties among patients getting drug-eluting stents — one in 12, compared to one in five for those getting bare-metal stents." Hey, that sounds like a trade-off that might be worth taking, especially if (as seems also to be the case, emphasis on the word seems) the clot risk can be reduced through a medication called clopidogrel.

But I'm not a bit worried that a year ago, my cardiologist prescribed those stents for me based on some desire not to "be perceived as old-fashioned." Wow, that's an insulting notion, and I can't believe it could be even partly true in even a tiny fraction of situations; but I'm absolutely certain it wasn't true of my own cardiologist. Even with all of the science available to modern physicians — even the specialists at cutting-edge teaching hospitals — there's still an element of art in the practice of medicine. And certainly there are lots of judgment calls, in medicine just as in law, and the essence of being a professional means that people outside your profession have to rely upon and trust your judgment.

How much education would I have needed to make an intelligent decision without the benefit of my cardiologist's recommendations and judgment? I've got a decent education in science, and a pretty good understanding of medical language and concepts for a layman. But when I first heard them talking about this, I don't think I had any clue what a "stent" was, much less a "drug-eluting stent." Until they explained it a little, I thought they were saying "drug-eluding stint" — and I was wondering, What kind of time-frame are they talking about my having to dodge drugs during (and how, and why)?

Get away from me with your dirty paper cup full of meds, Nurse Ratched, at least for now! I'm embarked upon one of my drug-eluding stints!

So, Doc, if you're reading this by any chance, you can exhale now. At least one lawyer you installed drug-eluting stents into last year has pretty much admitted that if he keels over from a heart attack tomorrow, his survivors won't have a decent case against you. I trusted your judgment, and was, and am, damned grateful for the benefit of it, along with your technical skills.

Did I read those WaPo articles pretty carefully, knowing that this issue applies to hardware that, for me, is "hard-wear"? Oh, sure. Am I going to lose any sleep over it tonight? Naw. It's not something that would be productive to worry about right now.  And I'm almost certain that other factors that I can control — "Put down that cheeseburger, Beldar, and get back on the cross-country ski machine!" — are more likely to determine my future cardiac health.

Life is ultimately a terminal condition. But so far, so good.

New professional address and website

Other than an occasional link back and forth, I don't generally use my blog to directly promote my business or vice-versa. But effective yesterday, I have both a new professional address and a new business website, dyerlegal.com. I'm still tweaking the website, so I'd be grateful to anyone who emails me with typos, problems accessing the site, and the like.

Lawyerus Politicus

Why is this man smiling?

Actually, "smiling" is an insufficient word. "Beaming," perhaps. Or "Filled with mirth, glee, and spectacular merriment" might do. But why? Sez the New York Times, in answer:

Moving swiftly in his efforts to change the culture of Albany, Governor-elect Eliot Spitzer said Thursday that he would unilaterally stop accepting campaign contributions greater than $10,000, which is less than a fifth of the $50,100 in individual donations currently allowed by state law.

Mr. Spitzer also said that from now on he would refuse to take advantage of several notorious loopholes in the state’s campaign finance laws that allow corporations and limited liability companies to circumvent donation limits by contributing through subsidiaries and other related entities.

Oh, that's nice. Mr. Spitzer, of whom I've written before in a post on "Spitzerism," is dropping the size of the contributions he'll accept from roughly 25 times the federal limit for individual campaign donations to merely roughly five times that limit. (The NYT gets the federal number wrong, I think, unless I'm badly misreading the Federal Election Commission's website. But the Times informs us that "New York’s current limit on single donations, $50,100 to candidates for statewide office for their primary and general elections, is the highest of any state that has contribution limits," which I'll assume is correct.)

My favorite line from the NYT's story on Mr. Spitzer's spiel is this one:

Mr. Spitzer announced a number of areas where he said he planned to hold his administration to a higher standard than the law demands.

"Not quite criminals!" Now there's a campaign slogan for re-election in 2010!

Mr. Spitzer is one of the most prominent members of the species Lawyerus Politico currently to be found in the United States. In his plumage and attention-attracting habits, this avis vulgaris puts my law school colleague Bill White, currently the Mayor of Houston, utterly to shame. But who better to creatively flout the spirit of campaign finance laws, while simultaneously trumpeting (now that he's elected) his voluntary ethical surpassing of the same, than the immediate past attorney-general of the State whose bar inspired national reverence fear contempt appreciation for the phrase "New York lawyer"?

The concluding paragraph of the NYT story is classic, probably without intending to be:

When Mr. Spitzer was asked if his decision to limit his contributions reflected confidence in his ability to be re-elected in four years against a candidate not bound by such self-imposed limits, or confidence that he would be able to persuade the Legislature to overhaul the state’s campaign finance laws, he said, “The logic is, this is the right thing to do to send a message that we meant what we said throughout this campaign, which is that we are going to change, in a fundamental way, the way government functions.”

Yes, indeed! Welcome, New York State government, to the "perpetual campaign," just as practiced by one current and one retired specimen of Lawyerus Politicus — both prominent examples of this (unfortunately all too common) species, they are! — your State's junior senator and her husband.

NYT: "Drag [our] reporters into court" where they can flout the law! We insist!

One of the most outrageous statements ever to appear in a newspaper was published in a New York Times editorial yesterday.

To demonstrate how outrageous, I'll cover some deep background, and then some that's more immediate.

*******

Of all the movies ever made about the newspaper business, Alan J. Pakula's All the President's Men in 1976 was probably the single most flattering, with Robert Redford and Dustin Hoffman playing Bob Woodward and Carl Bernstein. Among the most memorable series of scenes were those of Redford/Woodward meeting with Hal Holbrook/Deep Throat in a shadowy, gloomy, eventually quite scary parking garage. And you may or may not remember this bit, which starts off with Woodward and Bernstein bemoaning getting scooped by the WaPo's archrival, the NYT:

CUT TO:

The Times spread somewhat tentatively over a mailbox. A small headline is visible, with the words "Barker," "Liddy," and "Telephone" in some kind of order. WOODWARD and BERNSTEIN look at it the best they can.

BERNSTEIN: Goddammit —

WOODWARD: — see? —

BERNSTEIN: — I'm trying —

WOODWARD: — fifteen phone calls —

BERNSTEIN: — fifteen or more phone calls from the burglars in Miami to Gordon Liddy at CREEP —

WOODWARD: Why didn't we get that?

BERNSTEIN: Christ, and I even know somebody at the phone company —

WOODWARD: — you do? — with access to records?

As BERNSTEIN nods —

CUT TO:

A LITTLE CITY PARK. A guy shells peanuts. BERNSTEIN hurries up.

BERNSTEIN: Why couldn't you have just dialed me from the office, Irwin?

IRWIN: 'Cause I'm not calling out from the phone company anymore — (drops his voice) — I think the place is bugged.

BERNSTEIN (taking some peanuts): So tell me about the Times article.

IRWIN: What do you want to know?

BERNSTEIN: No games, Irwin; give.

IRWIN (looks at BERNSTEIN): My big civil rights buddy — (shakes his head) — boy, if John Mitchell was after your phone records, would you be screaming.

Later in the movie, Woodward and Bernstein roust the WaPo's editor, Ben Bradlee, out of bed:

CUT TO:

BRADLEE IN HIS DOORWAY IN THE MIDDLE OF THE NIGHT. It's a house with a lawn and from somewhere there is the SOUND of dogs barking.

BRADLEE: You couldn't have told me over the phone?

CUT TO:

WOODWARD and BERNSTEIN moving up the walk to BRADLEE.

WOODWARD: We can't trust the phones, not anymore. Deep Throat says so.

(Emphasis mine.) I'm guessing that somewhere less than 0.01 percent of the New York Times' reporters have not seen this movie. I'm guessing that 95 percent of them have seen it multiple times. It's a movie made from a book, and both of them are taught in journalism schools; if there is a Holy Gospel of Journalism, it's "All the President's Men." And until he self-outed himself last year, Deep Throat was undoubtedly the most famous "confidential source" in the history of journalism.

*******

Now I want you to imagine that you're an FBI agent. The date is either December 4th or December 14th, 2001. Your colleagues at the Bureau are still combing through ashes and body parts in lower Manhattan, and you're on your way to conduct a raid at the offices of what's ostensibly an Islamic charity organization, but which strong evidence indicates may actually be an operation to raise funds for terrorist organizations from within the United States. You're on home turf, baby — either in Chicago or Dallas, your pick. You're cinching down your body armor when a buddy hands you a copy of the late edition of the previous day's New York Times — and he points you to a story discussing the specifics of the raid you're about to make, including its target! You arrive at the raid scene to find not the startled terrorist-enablers with books and records and full-to-bursting computer hard drives still there to seize, but rather, the "charity's" lawyer calmly waiting there to greet you along with his clients, whose arms are crossed and whose faces wear the most smug, mocking expressions you've ever seen in your law enforcement career. All the wastebaskets are empty; the computers are unplugged; you see a mop propped in the corner, still dripping wet. And you wonder to yourself, "If that story had been in the morning edition today instead, would we have found these guys waiting for us with AK-47s and grenades instead of with their lawyer?"

Later that day, you sit in on a meeting between the special agent in charge of this badly compromised raid and the United States Attorney in Chicago. The phrase "obstruction of justice" has already been used frequently in the conversation, along with a variety of swear-words that would make most sailors blush. You hear a reporter's name mentioned over and over again, too — either "Judith Miller" or "Phillip Shenon," again take your pick — and your boss' coffee cup topples off the edge of the conference table as he pounds it for emphasis: "We need that reporter's butt in a witness chair before a grand jury ASAP!"

"No," explains Mr. Fitzpatrick, the U.S. Attorney, and he runs everyone in the room through the law on this one more time. Although there are some state statutes creating privileges under state law, under federal law there is no formal privilege that permits reporters to shield the names of "confidential sources" like the ones mentioned in the NYT stories. There's a U.S. Supreme Court case saying reporters have to testify just like any other citizen. But — and it's a big "but" — there are Department of Justice policies that commit the DoJ to essentially the same protections for reporters that even the most generous, most pro-media of these state shield laws create. Of course the fastest and surest way to find out who leaked to the NYT about these raids, agrees Mr. Fitzgerald, would be to pop Mr. Shenon or Ms. Miller with a grand jury subpoena and put them on the witness stand and just straight-out ask them — under subpoena, under oath, and under penalty of contempt of court if they refuse to answer — who tipped them off. But under DoJ policies, even when that information is essential, the government first has to look for "less intrusive" means to get that same information. Prosecutors can't start with the reporters themselves if they can get equivalent information somewhere else.

"Wait a minute," you interject, "Whose idea was that, that we have to use these 'less intrusive means'?"

"Why, it was the media's idea, of course!" answers Mr. Fitzpatrick. "If they've been careful, if they've met with their confidential sources in some parking garage like that 'Deep Throat' guy in the movies insisted on doing, we may be s**t-outta-luck with the phone records, in which case we'll have to subpoena the reporters directly. But first we have to subpoena the phone records — otherwise any judge will probably quash our subpoena for the reporters themselves, and I'll be in trouble with the Attorney General for violating DoJ policy."

"Now excuse me, guys," he says, "I've got to write a letter to the NYT asking for their consent to provide us with their phone records as a less intrusive means than subpoenaing their reporters directly." But then he stops, and chuckles: "Of course, as far above the law as these guys think they are, they probably did use their phones."

(Obviously I'm engaging in dramatic license here, especially with the dialog — but no more so than did the writers and makers of "All the President's Men." I don't know if there actually was a dripping mop, but there indeed was a lawyer waiting at one of the "charities," and Mr. Fitzgerald did write such a letter. The basic facts I've described are indeed accurate.)

*******

Back, finally, to the NYT's editorial (hat tip: Michelle Malkin), and the particularly outrageous line in it (boldface mine):

Rather than drag the reporters into court, where they could have protected their sources by refusing to testify, the prosecutor subpoenaed their phone records for 11 days in 2001. A trial court prohibited the government from obtaining the records from the phone companies, but a divided appeals court reversed that decision. Now the Supreme Court, in refusing to intervene, has effectively allowed the prosecutor to search through the records in hopes he can pinpoint the source of the leak.

This is a bad outcome for the press and for the public. The phone records reveal the identities of lots of sources having nothing to do with the leaks. The appeals court’s disingenuous suggestion that The Times might redact irrelevant records would simply have helped point to possible leakers.

Are you following what's going on here? Patrick Fitzgerald and the grand jury are voluntarily jumping through incredible hoops to get this evidence. They can't use the means that would be most direct.  They can't use the means that any other potential witnesses in the United States except for the press would have to submit to. The mainstream media has utterly failed to get either Congress or the U.S. Supreme Court to create a federal privilege for reporters to shield their confidential sources — but the DoJ has already given them that protection anyway, and in this very case it's already busy jumping through all of the hoops any conceivable reporter privilege could require.

But says the New York Times — I'm not quoting here, but the accuracy of this paraphrase is inescapable:

That's not good enough. Never mind that it was at our own insistence that you went to the phone records instead of coming directly to us. We insist on having the opportunity for our reporters to defy the law and go to jail after having been subpoenaed directly. You must not deny us our martyrdom as we show our contempt of court! Drag our reporters into court — we insist!

*******

Oddly enough, when it wasn't editorializing in its own pages, but was instead speaking through its lawyers to the Second Circuit, the NYT did indeed insist that the government seek the least intrusive means of getting this information — but proceeded to do everything possible to make that less intrusive means impractical. Here's the actual language from the Second Circuit's opinion that the NYT characterizes (with remarkable disrespect bordering on blog-like snark) as being "disingenuous" (footnote and case citations omitted, boldface mine):

The centrality of the reporters' evidence to the investigation is demonstrated by the Times' echoing of the district court's understandable view that some or many of the phone records sought are not material because they do not relate to the investigation and may include reporters' sources on other newsworthy matters. The Times seeks to add to that argument by stating that the government has not exhausted available non-privileged alternatives to the obtaining of the phone records.

This argument is more ironic than persuasive. Redactions of documents are commonplace where sensitive and irrelevant materials are mixed with highly relevant information. Our caselaw regarding disclosure of sources by reporters provides ample support for redacting materials that might involve confidential sources not relevant to the case at hand. In the present case, therefore, any reporters' privilege — or lesser legal protection — with regard to non-material sources can be fully accommodated by the appropriate district court's in camera supervision of redactions of phone records properly shown to be irrelevant.

However, the knowledge and testimony of the reporters does not have a reasonably available substitute in redacting the records because it is the content of the underlying conversations and/or other contacts that would determine relevancy. Redactions would therefore require the cooperation of the Times or its reporters, or both, in identifying the material to be redacted and verifying it as irrelevant, or in credibly disclosing the reporters' source(s) to the grand jury and obviating the need to view in gross the phone records.

In short, the only reasonable unavailed-of alternative that would mitigate the overbreadth of the threatened subpoena is the cooperation of the reporters and the Times. We fully understand the position taken by the Times regarding protection of its reporters' confidential communications with the source(s) of information regarding the HLF and GRF asset freezes/searches. However, the government, having unsuccessfully sought the Times ' cooperation, cannot be charged by the Times with having issued an unnecessarily overbroad subpoena. By the same token, the government, if offered cooperation that eliminates the need for the examination of the Times ' phone records in gross, cannot resist the narrowing of the information to be produced.

I love that studied understatement: "more ironic than persuasive." Boiled down, this is the Second Circuit saying to the NYT: Guys, we're already making them use the least intrusive means available, just like you demanded. Now you're complaining that by using that means (getting evidence through documents instead of direct subpoenas for the reporters' oral testimony), they'll get other, unrelated confidential information. But they're willing to forgo that extra info if you'll just sort it out of the stack, and if you won't, then that's just your own tough luck, because there's just no other, less intrusive way for them to get what they absolutely do need.

*******

So who's being disingenuous? Who ought to have anticipated that their phone records might be subpoenaed? Who ought to have expected that if those phone records were subpoenaed, they'd show other calls besides the ones from whoever tipped off the NYT about these two raids?

And who thinks they're so far above the law that the prosecutors and the courts owe them an opportunity to be martyrs, notwithstanding the fact that they've demanded — and already gotten the benefit of — special rules that apply to nobody else?

A long war story about a Beldar cross-examination, and a technical bleg about "meta-data"

This is a technical "bleg" (meaning a beg for help from blog readers) about "meta-data," a/k/a "embedded data," in digital files. I'm hoping that a few of my readers might be able to answer my technical questions, but others might still find the technical question interesting — especially the lawyers among you — in which case you may well want to skip to the very end of this very, very long post.

But as a roundabout way to explain why the subject of this bleg could be important, I've included a trial lawyer war story, which in turn includes long quotes from one of my cross-examinations in a recent tradename injunction case. It mostly falls into the category of Beldar self-congratulations (ow! my arm's broken from patting myself on the back!). Arguably it also falls into the category of "educational examples of how to impeach a witness effectively from a prior affidavit on cross-examination" — affidavits and their uses and abuses seeming to be a subject of obsession for my legal blogging, I guess.

******

Back in October 2004, when the conservative blogosphere was very busy shredding the claims by CBS News, its "60 Minutes" program, and its then-Grand Poobah Dan Ra^ther about the authenticity of the "Killian Memos," a/k/a the "Texas Air National Guard" documents forgeries, I was much impressed with how some of my readers and commenters began to delve into the "meta-data" (also sometimes called "embedded data," and yes there's a slight distinction but I'm not sure I can explain it) associated with the various .pdf files containing scans of the documents forgeries.

In addition to the .pdf scans of the so-called Killian Memos that were available for download on the CBS News website, there were other .pdf files containing scans that were purportedly made from the same original documents on various other news organizations' websites (e.g., USA Today's site), some of which those news organizations claimed to have obtained independently of CBS News' (so-called) investigatory efforts. At one point, based on a date that was embedded in one such .pdf file, it looked like Fox News' version of the scan had been created many months before CBS News claimed to have been approached — which seemed like a big, big deal at first. But then my commenters seemed to reach a consensus that the most likely explanation was that the scan had been done on a non-networked computer or scanner whose system clock was several months out of date, possibly due to a bad battery — a terrific example of the blogosphere's distributed information processing coming up with a non-conspiratorial explanation (even though it didn't fit what most of us expected, and probably wanted, to find by that point). And it marked the first time that I became aware of the possibilities that embedded data might have in an adversarial search for the truth (a/k/a "what I do for a living").

******

Fast-forward to the much more recent past — this October. What I'm about to describe are all matters of public record in a tradename lawsuit that has just ended through an agreed settlement. There's no confidentiality agreement as part of the settlement, but simply for taste reasons, I'm going to conceal the actual identities of the parties, witnesses, lawyers, and products behind pseudonyms.

The defendant in the lawsuit — that is, the alleged trademark infringer — I'll call "Doe Corp." The plaintiff, whom I'll call "Doe Inc.," asserted that it had a superior right to use the tradename "Doe." Both companies were based in Europe, where they'd done business side by side for centuries. Both of them manufacture what I'll call "widgets." And both were in fact founded and are still owned by families named "Doe." But Doe Inc. claimed that it had started using the "Doe" name in connection with its widgets in the U.S. and the Western Hemisphere several years ago, and that it had spent lots of time and money promoting the "Doe" name here — whereas Doe Corp. was, according to Doe Inc., a new-comer to the widget market in the US and the Western Hemisphere. Doe Inc. also claimed that Houston is the widget capital of the Western world, and that Doe Corp. was causing customers here to become confused between Doe Inc. widgets and Doe Corp. widgets, in turn causing Doe Inc. to lose sales.

So Doe Inc. had gotten an emergency "temporary restraining order" in state district court in Houston that prohibited Doe Corp. from using the name "Doe" in this half of the world. Doe Inc.'s lawyers did so "ex parte" — meaning without anyone from Doe Corp. being present — based on Doe Inc.'s assertion that this was such a big emergency that there just wasn't time to give Doe Corp., all the way over in Europe, any notice of the hearing on Doe Inc.'s TRO application.

That very directly affected the business of my client, whom I'll call Acme. Acme is a Houston-based company that buys and then re-sells widgets from many companies, among them both Doe Inc. and Doe Corp. Because of the TRO, Doe Corp. suddenly couldn't sell Acme any more widgets — and the world-wide widget market is smoking hot right now, and Acme needs lots and lots of widgets as fast as it can get them! Indeed, Doe Inc. was even making noises about trying to use the TRO it had gotten against Doe Corp. to stop Acme from "acting in concert with Doe Corp." In other words, Doe Inc. was suggesting that Acme was deliberately helping Doe Corp. infringe on Doe Inc.'s tradename, even if just by re-selling the Doe Corp. widgets that Acme already had in its inventory. So even though Doe Inc. hadn't yet directly sued Acme, Acme instructed me to jump into the middle of this lawsuit (i.e., to "intervene") to protect Acme's own interests.

Thus it came to pass that in mid-October, we had a two-day evidentiary hearing on Doe Inc.'s application to convert its TRO into a longer-lasting pretrial injunction — called a "temporary injunction" in Texas state-court practice, but very analogous to a "preliminary injunction" in federal-court practice. This temporary injunction hearing was going to be a very big deal — potentially freezing millions of dollars of widget commerce for many months, perhaps even more than a year, until there could be a full jury trial on the merits after everyone had conducted pretrial discovery. And it was going to be conducted blind — in other words, without either side having obtained the others' documents or taken the other side's witnesses' depositions. This was going to all be "shoot from the hip" trial lawyering — by far the most dangerous, and by far the most fun (if terrifying) for the lawyers!

The final thing you need to know to understand this war story has to do with the rules governing injunctions — TROs, temporary injunctions, or permanent injunctions. A defendant can defeat an injunction by showing that the plaintiff was not diligent in trying to protect his rights — in other words, that the plaintiff knowingly let his rights be trampled for a long time without saying a peep. That's especially important in a trademark/tradename contest. So precisely when Doe Inc. first learned of the alleged tradename infringement by Doe Corp. in the U.S. was potentially very important — and could possibly even decide the outcome. "Why should I freeze everything for the next few months," judges are prone to ask, "when your client has known about this controversy, but sat on its butt without filing suit for several months, counsel?" There rarely is a good answer to this question.

******

At the evidentiary hearing, we heard from a witness whom I'll call "Mr. Smith." Mr. Smith works for Doe Inc., and his company's lead lawyer, whom I'll call "Mr. Black," called Mr. Smith to testify about supposed confusion in the marketplace between the two companies. But in the course of Mr. Black's direct examination of Mr. Smith, Mr. Smith volunteered that he'd gotten his first strong hint of Doe Corp.'s allegedly infringing use of the Doe tradename in the U.S. way back in February, and that he'd gotten firm confirmation of it in April. These were surprising admissions — harmful to Doe Inc., and very helpful for Doe Corp. and Acme. And when Mr. Black was done with his direct examination, Doe Corp.'s lawyer, whom I'll call Mr. White, very crisply and effectively re-confirmed and highlighted these admissions as part of his cross-examination of Mr. Smith.

But then came my turn. And because I recalled something that it seemed that the other lawyers in the courtroom either didn't know or had forgotten, I found myself with a textbook opportunity to conduct a very, very fun cross-examination. Here's the transcript, unedited (except for the substitution of pseudonyms and a few bracketed explanations):

THE COURT: Mr. Dyer?

CROSS‑EXAMINATION BY MR. DYER:

Q. Mr. Smith, besides testifying here today in Court, you've previously given a written affidavit in this case; is that correct?

A. Yes, sir.

Q. You signed it before a notary public on September 22nd, 2006?

A. Yes, sir.

Q. Do you know that it was attached to the papers that your company's lawyers filed with the Court to ask for a temporary restraining order?

A. I don't know that personally. I know I signed the affidavit.

Q. Did you read it before you signed it?

A. Yes, sir.

Q. Did you read it carefully?

A. I did read it.

Q. I'm sorry?

A. I did read it carefully.

Q. Carefully? Did you understand it was testimony that you were giving in written form, just as if you were sitting here in court, as you are today?

A. Yes, sir, I did.

Q. You certainly wanted that testimony to be accurate?

A. Yes, sir.

Q. You certainly wanted that testimony to be complete?

A. Yes, sir.

Q. You certainly didn't want to mislead this Court?

A. No, sir.

Q. Mr. Smith —

MR. DYER: May I approach?

THE COURT: You may approach.

Q. (BY MR. DYER) Let me show you what I marked as Acme TI 2, for Acme Temporary Injunction Exhibit No. 2. Do you recognize that to be a copy of your affidavit?

A. Yes, sir.

Q. Do you recognize your signature on the second page?

A. Yes, sir.

MR. DYER: May I look over the witness' shoulder with him? We only have this one copy, I know, because it was attached to the court papers. The other counsel have it. It's not necessarily right here in hand.

MR. BROWN [the second-chair lawyer for Doe Inc.]: Here's an extra copy, if you want one.

(Tendered)

MR. DYER: Thank you.

MR. DYER: May I hand this up for the Court?

(Tendered)

THE COURT: Thank you.

Q. (BY MR. DYER) If we read together in your affidavit, it says, paragraph two, that you're employed as a quality coordinator at Doe Inc. Correct?

A. Yes, sir.

Q. Then the rest of paragraph two describes the September 20th encounter with Mr. Jones from Acme?

A. Yes.

Q. Speak up so the court reporter can hear you.

A. Yes, sir.

Q. Then the last sentence of that paragraph reads, quote, "Prior to August of this year I was unaware that there was another company named 'Doe' that sold widgets."

Do you see that, sir?

A. Yes.

Q. That's false, isn't it?

A. I believe it would be April, is when I —

Q. The statement is false as written, isn't it?

The transcript doesn't show it, but everyone who was there in the courtroom will remember that at this point, there was a long, painful silence. I'd estimate the silence to have been at least 30 seconds, but it probably seemed much longer to Mr. Smith. And I could practically hear the gears turning in Mr. Black's head as he tried to think of some objection that might get his witness off the hook I'd carefully baited, set, and then yanked.

A. Yes, sir.

Q. Misleading as written, isn't it?

MR. BLACK: Objection. It's an insignificant, technical error. Not misleading.

MR. DYER: That's a fine argument.

THE COURT: Excuse me. Do you have a legal objection?

MR. BLACK: Badgering the witness. I gave a copy so he wouldn't hover over his shoulder.

THE COURT: All right. Let's — I'll sustain the objection. Well, I'm sorry, the first question was false?

MR. DYER: Yes.

THE COURT: Reverse myself. Overruled.

Q. (BY MR. DYER) That statement that the first time you knew there was another company named 'Doe' that sold widgets was in August of this year, 2006, that was also misleading, wasn't it?

MR. BLACK: Objection. At the time —

A. No —

Q. (BY MR. DYER) Do you think it was misleading?

A. Sir, I was only told by another employee there that it was Doe [something else], not Doe Corp.

Q. Well, any other company named 'Doe.' You denied in the affidavit that you knew there was any other widget company that used the name 'Doe,' you denied having known that before August of this year, and that was just wrong when you put that in the affidavit. Do you agree, sir?

A. Yeah, that was a mistake.

Q. As you testified here today, you knew at least as far back as April of this year?

A. Yes.

Q. You could have known, as Mr. White's questions established, as far back as February of this year, had you taken the trouble to look?

MR. BLACK: Objection. Mischaracterizes the prior questioning and prior answers.

THE COURT: Overruled.

Q. (BY MR. DYER) Could have known in February, if you looked?

A. I guess my only question is how come the Acme employees didn't look?

Q. I understand that that's an argument your lawyer may make later on. But my question to you is, could you have looked in February and found out as early as that, if you had taken the trouble?

A. Yes, sir.

This whole series was about as close to a real-life "Perry Mason moment" as any trial lawyer is likely to get. But there was more, near the end of that same cross-examination.

Q. [BY MR. DYER] While we're talking about reasons you didn't do things, is there a reason you didn't tell the Court in your affidavit when you said — the same affidavit now, which said you first learned about another 'Doe' company in August — is there a reason you didn't tell the Court in that affidavit about the April and February contacts with Bernard? [Bernard was the Acme employee whom Mr. Smith identified as having told him about Doe Corp. selling widgets in the U.S. in February and April.]

A. Can you repeat that one more time?

Q. Sure. Is there a reason you left out of your affidavit the February and April contacts with Bernard?

A. Is there a reason I left it out?  No, sir, there's no reason.

Q. In fact, somebody else wrote that affidavit for you to sign, didn't they?

A. No, sir.

Q. Did you type it up?

A. I did not type it up.

Q. Who typed it up?

A. I believe our attorney typed it up.

Q. And I don't want to get into conversations between you and your attorney.  But, is it fair to say that you weren't the one who made the decision to leave out the discussion of the February and April contacts?

MR. BLACK: Objection. There's no way to answer that question without getting into attorney/client communications.

MR. DYER: If that's the case, then we may need to talk about the crime fraud exception, have some testing [of] privilege.  I'm trying to avoid that.

MR. BLACK: Hold on a second.

THE COURT: Come on up, counsel.

(Discussion at the Bench)

MR. BLACK: May I?

THE COURT: Well, no. Why don't you examine what this witness knows about the transaction, short of what he was told by his lawyer.

If you want to cover the circumstances under which this affidavit was prepared, I think that would be appropriate.  But at some point we're getting into attorney/client privilege issues.  I don't want to pre-judge the crime fraud issue, but —

MR. DYER: Somebody made a decision not to tell this Court —

THE COURT: That you haven't asked. Your question assumed that. Did not ask that.

MR. BLACK: But I'm giving you this hypothetical. Hypothetical that —

THE COURT: I'd rather not do that in front of the witness.

MR. WHITE: Can we take testimony? Did you make the decision?

(End Bench conference)

Q. (BY MR. DYER) Did you make the decision to leave that out of the affidavit, Mr. Smith?

A. No, sir.

Q. Did you make the decision what to put in the affidavit?

A. I just told things as I knew them.

Q. I don't want to get into the substance of what you told the lawyers or didn't tell the lawyers. Is it fair to say you had a communication with them verbally, and then they handed you an affidavit and you signed it after reading it?

A. Yes, sir.

Q. After missing the [sarcastic tone and "air quotes" with fingers] mistake?

A. Yes, sir.

******

Based on Mr. Smith's live testimony about the dates in response to Mr. Black's questions, Mr. White's cross-examination had already highlighted the fact that Doe Inc. couldn't prove one essential part of its case — in other words, couldn't prove it had acted promptly to protect its supposed rights to the "Doe" name. But Mr. White's cross-examination hadn't quite shown that anyone was a scoundrel — only that they'd been rather slow to react.

My cross-examination took it a step further, however, impeaching Mr. Smith's personal credibility by pointing out the vast inconsistency between his live sworn testimony from the witness stand and his written sworn testimony from the affidavit. But even more important, my cross-examination showed that Mr. Smith's employer, Doe Inc., almost certainly had misled the court about this subject when Doe Inc. got the ex parte TRO. Judges don't like being misled on important things. Perhaps that misleading wasn't deliberate — Mr. Black continues to insist that this was all just an innocent misstatement, a memory lapse. But it was nevertheless on a subject so important that a "mistake" of this magnitude was not likely to be excused by the court even if innocent.

The evidentiary hearing ended a few hours later. My cross-exam of this witness was far from the only reason — Mr. White and his colleague did a terrific job on other important topics too — but suffice it to say that Doe Corp. and Acme won the hearing: The court denied Doe Inc.'s request to convert the TRO into a temporary injunction that would have remained in effect for several months until a full trial. Doe Corp. was free to go on selling its widgets throughout the Americas, and Acme was free to continue to buy and re-sell them.

And within a matter of a few weeks after the hearing, the whole case settled with a whimper, not a bang.

******

That's a very long war story to lead up to my technical bleg, but it gives some context for how the subject of my bleg can become important to lawyers.

Since I had established that this witness and his employer had submitted an at-least-badly-mistaken and possibly deceptive sworn affidavit to get the TRO, Mr. White and I were very keen to dig further into the subject of that affidavit as part of our preparations for a full trial on the merits, and the judge had indicated that we'd get a chance to test just how innocent the "mistake" about the dates actually was. We wanted to know who had prepared the affidavit, who had revised it, how many drafts it went through, what changes were made during the drafting stages — and as to each of these issues, when. As the first step, Mr. White had sent a document production request that sought "the production (in electronic form) of the affidavit of John Smith .... Pursuant to Tex. R. Civ. P. 196.4, Doe Corp. requests that the document be produced in electronic form, in native format with all associated metadata." But the case settled before we got Doe Inc.'s response (which would inevitably have been the next step in a complicated battle over attorney-client privilege).

I recently took a very good online continuing legal education course about meta-data and embedded data, prepared by Mercer University School of Law Professor David Hricik. (The pseudonymous Mr. White has also taught CLE courses on this subject, and already knows much more about it than I do.) As with the meta-data embedded within .pdf files that was discussed at the beginning of this post, Prof. Hricik's course taught me how to find some of the cool info that can be embedded within, and hence extracted from, Microsoft Word .doc files. The type and extent of the available data changes depending on what settings one's Word program has as its defaults, and/or how the settings have been re-configured for any given document. But in my own experimentation, I've found that a great deal of that embedded data seems to be altered by any re-saving of the .doc file once it's been opened to look for that data. Plus, other types of embedded data, including when the file was created, appear to be re-set any time the file is even copied (for example, even onto a CD).

Hence, finally, my technical bleg: I can send rude instructions — a detailed warning that opening and then re-saving the Microsoft Word .doc file, for example — will be argued by me to be an intentional spoliation of evidence by my opponent, potentially subject to severe punishment by the court. But short of going over to Mr. Black's office and demanding to be allowed to log onto one of his networked workstations, given a password, and shown how to access the .doc file myself from where it's stored on his firm's servers — presumably with a videographer looking over my shoulder to document what I'm finding! — is there any good and fairly easy way to ensure that a digital file that's supposedly in "native format with all associated metadata" (but that almost necessarily will have been copied from an "original" file) won't have suffered some of these alterations?

Of signatures and rubber-stamps, oaths and Bibles

Since returning to active blogging, I have, of course, stepped up my reading of some of my other favorite blogs. And I've been unable to resist the urge to comment on them. A little bit of that is fine. But of course, your long-winded host at this blog can't hold himself to a little bit, and so I find myself writing long screeds on other bloggers' comments sections. I should post those screeds here, where my readers voluntarily assume the risk (at least after their first visits) of overlong rants.

I need software that causes my keyboard to seize up and a red light to flash when I've written more words in a comment that the host wrote in the post itself. "Beldar, take it to your own bandwidth!" the digitized voice should shout.

Yesterday my rants elsewhere were over the importance — or fundamental lack thereof — of whether the judge who'd issued the warrant in the Atlanta "no-knock warrant"/elderly-woman-shooting incident had affixed a pen-and-ink signature to the warrant, or had instead approved the warrant via a rubber stamp of his signature, or a digital version thereof. Prompted by an animated .gif file on Radley Balko's blog that attempted to show a non-manual, non-unique-pen-and-ink signature, my comments spilled over onto Patterico's blog and a post by Prof. Orin Kerr at The Volokh Conspiracy. The best of my rants — which I completely spoiled by an intemperate and impolite and completely unjustifiable closing dig at Prof. Kerr (who deserves far better of me); I repeat here my apology that I later posted there — may have been the shortest, so I'll reprint most of it here (minus the dig):

Whether the signature was pen-and-ink, ink-stamped, or digital is almost certainly irrelevant under any State's law. See, e.g., Article 3, part 4, of the Uniform Commercial Code, especially § 3-401(b):

A signature may be made (i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing.

Although from a commercial instead of a criminal context, this re-states the common law on signatures and endorsements generally.

Thus, the proper question is whether whatever indication of the judge's ruling on the warrant application was intended by him or not, however that intention was manifested. If the warrant is genuinely forged — if it was completely fabricated, whether through a phony pen-and-ink signature or a hacked data cable — then it was not intended by the judge to evidence his assent, and that's another story entirely ....

And whether this judge paid enough attention to the warrant application, or whether judges in general ought to pay more attention, or whether standards for warrants ought to be changed, or whether no-knock warrants are good or bad — these are all interesting questions, but they have nothing whatsoever to do with the fact that these signatures are "suspiciously similar." That's just a complete red herring ....

That UCC provision explains why, for example, when your $10 rebate check from MegaCorp comes in the mail with a pre-printed signature from "J. Harold Bigboss," and you endorse the back of it with only your "For Deposit Only, John Doe, Acct. No. 287153982" rubber stamp, the document nevertheless flows through the banking system and results in the $10 being credited to your bank account — even though no one ever put a pen-and-ink signature to anything.

Today's victim is James Joyner of Outside the Beltway (whose co-blogger Steve Verdon I was arguing with over at Patterico's (sigh)). In my temporary insanity, it seemed that my two cents (or 400 words and six paragraphs) were essential to each of three or four over posts there, but the only comment that's possibly worth my repeating here (or that arguably was worth my posting there) had to do with the question of whether newly-elected Congressman Keith Ellison, an adherent of the Muslim faith, ought to be permitted to take his oath of office on a Koran instead of a Bible. To which I made this comment:

I’ve practiced law in Texas for 25 years. I've never once seen a witness take an oath, either in a deposition or before live testimony in court, on a Bible (or any other book).

For that matter, I've never once seen a judge bang his gavel. They all have them, but the just never, ever use them. If it came to that, they’d crook a finger at a deputy sheriff/bailiff who’s got a badge on his chest and a 9mm on his hip, but I’ve only seen that happen once.

The oath-on-a-Bible thing, dating back to George Washington [adding] an unscripted “So help me God” and kissing the Bible at his inauguration, is pure politics and show-business. It has nothing to do with actually becoming a Congressman or Senator or Supreme Court Justice or President.

The oath, by contrast, does really matter — because if you’re impeached, it’s the oath that manifested your acceptance of the duty, the violation of which duty is the basis for your removal from office.

I've got a related issue (well, it's a minor sub-issue actually) in one of my pending cases that's set for trial early next year. In it, there's a document, actually a letter, that was signed by one of the secondary players in the case, and it bears a Notary Public's seal-stamp and signature as well. My opponents keep referring to it as an "affidavit," and there's no doubt it will be admitted into evidence in my case (because it has independent legal significance, regardless of whether it's self-authenticating and otherwise admissible as an exception to the normal hearsay rules).

But the document has no other language — no indication that the Notary Public administered any sort of oath, no statement made or adopted by the "witness" to the effect that he had personal knowledge of its contents, or that he was swearing to the truth of any of the recitations in the document. It just has the letter-writer's signature, plus the Notary Public's signature and stamp. My position is that the most that can be implied by that document is that the Notary Public verified the identity of the signer (and even that may be subject to dispute; quite arguably, all by itself the Notary's signature and stamp are entirely meaningless). But I'm confident that the document couldn't support a perjury conviction even if the factual statements that were in it were lies, and I don't think it therefore can be called an "affidavit" or even a "sworn statement."

In short, I think oaths still matter, although the formalities by which they're accomplished (left hand, right hand, no hand; Bible, Koran, Das Kapital) don't necessarily. We'll see if the judge agrees with me. And I'm quite certain that pen-and-ink isn't required for a "valid" signature, but rather that what's required is a reasonably clear ("clear" from the circumstances, not the handwriting), objective manifestation of the "signer's" intention, almost however expressed. (And yes, there are indeed appellate cases upholding signatures accomplished by points-and-clicks on a computer screen as binding upon the point-and-clicker in at least some circumstances.)

Breathe a sigh of relief: NYT loses in SCOTUS again on reporters' privilege

MONDAY, NOVEMBER 27, 2006
ORDER IN PENDING CASE
06A525 THE NEW YORK TIMES COMPANY
V. GONZALES, ATT’Y GEN., ET AL.

The application for stay of mandate of the United States Court of Appeals for the Second Circuit pending the filing and disposition of a petition for a writ of certiorari, presented to Justice Ginsburg and by her referred to the Court, is denied.

Of this very brief order yesterday from the United States Supreme Court, the losing lawyer, eminent First Amendment specialist Floyd Abrams, was paraphrased by his client as having said "the decision was a battle lost in a larger war." But on this occasion, Mr. Abrams is absolutely, positively wrong.

This decision was a battle won for the United States on the home front in the global war on terrorism. And it's another fine example of how the mainstream media, led by the New York Times, is absolutely willing to let you be blown to bits by terrorists in order to protect your "right to know."

*******

Let's boil this down. Here, in two thorough paragraphs, is how the United States Court of Appeals for the Second Circuit explained the background and the issues:

After the attacks on the World Trade Center and the Pentagon on September 11, 2001, the federal government launched or intensified investigations into the funding of terrorist activities by organizations raising money in the United States. In the course of those investigations, the government developed a plan to freeze the assets and/or search the premises of two foundations. Two New York Times reporters [Philip Shenon and Judith Miller] learned of these plans, and, on the eve of each of the government's actions, called each foundation for comment on the upcoming government freeze and/or searches.

The government, believing that the reporters' calls endangered the agents executing the searches and alerted the targets, allowing them to take steps mitigating the effect of the freeze and searches, began a grand jury investigation into the disclosure of its plans regarding the foundations. It sought the cooperation of the Times and its reporters, including access to the Times ' phone records. Cooperation was refused, and the government threatened to obtain the phone records from third party providers of phone services. The Times then brought the present action seeking a declaratory judgment that phone records of its reporters in the hands of third party telephone providers are shielded from a grand jury subpoena by reporter's privileges protecting the identity of confidential sources arising out of both the common law and the First Amendment.

Here it is in two sentences: The FBI was prevented from freezing terrorists' assets and catching terrorists because somebody leaked what they were about to do to the New York Times, and the NYT proceeded to warn the terrorists themselves! Now the NYT says that because it was just promoting the "public's right to know" and the First Amendment, its phone company should be immune from having to give evidence to permit a grand jury to decide whether any crimes were committed as part of this debacle.

And here it is in a mere ten words: Someone committed treason, and the NYT is okay with that.

*******

The Second Circuit, fortunately, wasn't okay with that. Even though the Supreme Court has never recognized one, the Second Circuit played along with the notion that there might be some sort of federal common-law privilege for reporters to conceal their "confidential sources." But like every other court (state or federal) to ever consider the question, it pointed out that the privilege is not absolute, but only "qualified" — meaning that sometimes it can be overcome. And it was here:

There is therefore a clear showing of a compelling governmental interest in the investigation, a clear showing of relevant and unique information in the reporters' knowledge, and a clear showing of need. No grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters' evidence. It is therefore not privileged.

In other words, even if there might be special rules that let reporters refuse to obey lawful subpoenas sometimes, this ain't one of those times.

*******

Yesterday's SCOTUS ruling comes in an odd procedural context that neither the NYT's own news story nor the WaPo's comparable report explained very well — so I'll try.

The Second Circuit's decision was rendered on August 1st, but the NYT of course wanted to keep going up the appellate chain, and took the steps needed to continue that process. The NYT asked that in the meantime, Mr. Fitzgerald and the grand jury hold their damned horses, and that the effect of the Second Circuit's ruling be postponed — the technical legal terminology being to "stay the Second Circuit's mandate." The Second Circuit wouldn't do that itself, so the NYT went to the "Circuit Justice" — that is, the member of the U.S. Supreme Court with emergency supervisory authority over the Second Circuit in particular, which is Associate Justice Ruth Bader Ginsburg — and asked her to stay the Second Circuit's mandate.

Mr. Fitzgerald, however, was pretty insistent that he not be required to continue holding his horses:

The Justice Department told the Supreme Court on Friday [in response to the NYT's motion to stay the Second Circuit's mandate] that Mr. Fitzgerald was under enormous time pressure. "The statute of limitations," the government said, "will imminently expire on Dec. 3 and 13, 2006, on certain substantive offenses that the grand jury is investigating."

Now, if the NYT could ever hope to find a friend on the SCOTUS, it's Justice Ruth Bader "ACLU" Ginsburg. My conservative non-lawyer friends sometimes ask me how I can respect Justice Ginsburg even though I almost never agree with her legal opinions, and this is a good example of why that's so: Whatever her personal inclinations may have been, in this case she obviously recognized that it just wouldn't be appropriate for her to make this ruling alone — even though she had the nominal power to do so. Instead, as yesterday's order recites, she referred the NYT's request to stay the Second Circuit's mandate to the full Supreme Court. And the full Supreme Court refused that request, without any dissents. So the Second Circuit's mandate will promptly issue (or may already have, as of yesterday), and Mr. Fitzgerald's FBI agents will be poring over those phone records toot sweet.

The case isn't over. The NYT will still ask the Supreme Court to review the merits of the Second Circuit's decision through a petition for a writ of certiorari. The Supreme Court might agree to hear the case — although that would surprise me very much. And yesterday's ruling doesn't necessarily mean that neither Justice Ginsburg nor any other member of the Supreme Court would vote to overturn the Second Circuit's ruling if cert were granted and the Supreme Court thereby agreed to review the Second Circuit's decision on its merits. In fact, if I had to guess, I'd guess that she and Justice Stevens almost certainly would. That there were no dissents yesterday — not even from Justices Ginsburg or Stevens — may only mean that there aren't five Justices who are dad-gummed eager to use this particular case to create a new federal common-law privilege for reporters to shield their confidential sources. But maybe four Justices can be persuaded to vote to grant certiorari, and maybe five can be persuaded to create a privilege that Congress has so far refused to.  Or so Mr. Abrams and the NYT will hope.

And in due course, Mr. Abrams will write another fine petition for a writ of certiorari toward that end. But whatever he says for his client or other MSM outlets to reprint, I'll bet he's not going to be holding his breath waiting for cert to be granted. Not in this case, not on these facts. Not to protect whoever it was who broke the law to protect terrorists. Someone rabidly pro-media could at least argue with a semi-straight face that chasing down whoever supposedly "outed" Valerie Plame wasn't such a really big deal, and that the "public's need to know" (as purportedly protected by reporters' promises to keep sources confidential) ought to trump that search for evidence.

But not many people or entities besides the New York Times have the unmitigated chutzpah — combined with a breathtaking, and breathtakingly dangerous, childlike naïvety — to argue that someone inside the government ought to be able to tip off the NYT before an FBI raid, and that the NYT's reporters ought to be able to tip off the terrorists, and then that those criminally stupid tipsters, like the terrorists, should just be able to get away with it.

"I'll bet this will make Bush look bad," the tipsters probably thought. And that, in their eyes, is a goal that can justify anything, including another 9/11 or worse.

Blame the defendant? The lawyer? The mom? The judge?

I once cross-examined a man at trial who I later found out was on major sedatives and other meds to control his violent paranoid schizophrenia. I've occasionally seen witnesses who gave such unexpectedly stupid answers in court that I wondered if they were on drugs. But I've never had a client drop a bag of marijuana while standing up from counsel's table in court.

Obviously, the defendant — a newly-convicted robber — is to blame. But one wonders if he's the only one:

To make matters worse, his mother, a defense lawyer, was by his side at the time — representing him.

....

According to the [recorded record], Gwyn Hoerauf, his mother, said jail was not the answer to her [19-year-old] son's problems.

"I'm going to say it in a very crass way, and I hope he forgives me," she said.

"He is brain-damaged, your honor. I don't mean he's just a defendant who does dumb stuff. This is a boy with an IQ in triple digits. His brain is glued together with Silly Putty. He can't think his way out of a paper bag, but he can do physics."

I'll leave it to others to critique the parenting. As a lawyer, though, I'll say that no parent has any business defending his or her child in a felony criminal jury trial — ever. You certainly ought to help him or her find competent counsel for any important pretrial hearings, plea negotiations, and the trial. And immediately after the arrest, you might bail your kid out if you can. But if bail is contested, even that may be inappropriate. 

Every lawyer has an ethical obligation to refuse employment in matters in which his or her judgment is likely to be compromised. Rule 2.01 of the Texas Disciplinary Rules of Professional Conduct (for which I'm certain there's a reasonably close counterpart in Maryland, where this event took place) provides that "[i]n advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice." That independent judgment is going to be virtually impossible for any parent to deliver.

Likewise, Rule 1.06 on conflicts of interest provides that "a lawyer shall not represent a person if the representation of that person ... reasonably appears to be or become adversely limited ... by the lawyer's ... own interests." Comment 4 to that Rule provides:

Loyalty to a client is impaired not only by the representation of opposing parties ... but also in any situation when a lawyer may not be able to consider, recommend or carry out an appropriate course of action for one client because of the lawyer’s own interests or responsibilities to others. The conflict in effect forecloses alternatives that would otherwise be available to the client.... A potential possible conflict does not itself necessarily preclude the representation. The critical questions are the likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and adversely affect the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

And while normally potential conflicts of this sort may be waivable after full disclosure to, and informed consent from, the client, Comment 7 states that "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved should not ask for such agreement or provide representation on the basis of the client’s consent."

Let's take Lawyer-Mom's statements to the Court about her son's mental state at face value (giving her ethical credit for fulfilling her duties of candor to the tribunal). Any disinterested lawyer would immediately conclude that the parenting of a 19-year-old defendant might well be called into question in this case. Even if there's no basis for an insanity or other diminished responsibility defense, certainly competent counsel would want to consider whether to put on evidence for sentencing purposes about the defendant's upbringing and home life — in which Lawyer-Mom here is not only potentially a person onto whom competent counsel may want to try to shift some blame, but also a potential exculpatory witness! And she's the last person in the world who ought to be trying to decide which!

This is just wrong in so many ways that I wonder whether the presiding trial judge conducted an examination of the defendant to ensure whether his "consent" to the potential conflicts was in fact fully informed and voluntary. Were I the trial judge, I would have spent a solid fifteen minutes pointing out all the problems to this young man, and I would have made it clear to him that if he couldn't afford alternate counsel, I'd appoint counsel for him. I'd basically make him say he understood that only a crazy man would accept his mom as his lawyer — and if he said that, then I'd refer him for a psych exam to test his competency to assist in his own defense!

I'd also put some very, very hard questions to Lawyer-Mom — and not sympathetically, but just about as harshly as I could. I'd probably appoint stand-by counsel from outside the family to sit there at the table with them if she insisted on continuing. Any time Lawyer-Mom did anything even remotely questionable, I'd run the jury out of the room and again examine the defendant to see if he'd had a change of heart and wanted to switch to the stand-by counsel. (The "brain dead" speech would certainly be one such occasion.)

Finally, while there are, of course, constitutional dimensions to one's right to be represented by counsel of one's choice, I'm pretty sure, even without having researched the issue, that those rights aren't unlimited. And again, were I the trial judge in this situation, I'd probably give serious thought to disqualifying Lawyer-Mom on my own motion. This isn't a situation in which only the kid's interests were compromised. It reflects poorly on the entire justice system.

I'm surprised the WaPo didn't pick up on the ethical aspects of the story, in addition to the "how incredibly, tragically funny!" aspect. I'm certainly not trying to excuse the kid's stupidity. And it's possible that the trial judge did some or all of the things I've suggested here, and that the WaPo reporter simply didn't learn about that, or chose not to include it in the story if he did.

But Lawyer-Mom's role is just simply inexcusable. Her kid certainly wasn't the only one in that courtroom whose conduct was, shall we say, less than exemplary.

Miers' practice experience as measured by volume of trials

The Washington Post, and probably a great many other news outlets as well, in reporting on Harriet Miers' answers to a Senate Judiciary Committee questionaire, had this to say about her litigation practice experience:

With a corporate practice that rarely involved trial work, Miers, 60, said that she had identified eight cases that went through complete trials, of which she was the lead counsel for four.

Of this, my new blogospheric best friend (for reasons shortly to become obvious) John Podheretz writes today on NRO's The Corner something I'm sure he believes sincerely, but about which he's woefully misinformed (emphasis mine):

I've now received about a billion e-mails from lawyers explaining that there's nothing wrong with the fact that Harriet Miers only participated in 16 courtroom cases in a career spanning more than 25 years — that 90 percent of all legal matters are settled, that's what lawyers are supposed to do, and so on. That's all nice, but it's beside the point. Miers's defenders, the brilliant Beldar among them, have praised her choice because her career as a working lawyer will supposedly provide her with unique and valuable experience when it comes to the Court. The clear implication of this line of argument is that she knows the law from the other side of the judge's desk. Sorry, but that won't wash. It's one thing to argue that courtroom experience as a lawyer prepares you for the back-and-forthing on the Court. It's quite another to argue that a career spent settling cases prepares you to rule in matters that have been adjudicated by lower courts. If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever.

Note well: I have certainly taken more different contributors to NR/NRO, including ones with editorial positions, to task over the Miers nomination in my blogging than I ever have over any previous issue, and certainly more of them than at any other institution or publication. My arguments have sometimes been straightforward, but they've also sometimes been laced with snark; and snark always carries a greater chance of giving offense, either intended or un-. Throughout my blogging on the Miers nomination, however, I've maintained a running side-channel of email correspondence with most of those same NROniks, who have — invariably and without exception — been exceedingly gracious, thoughtful, mature, and civil, and often quite funny as well. I've had occasion to apologize privately to one of them for a fairly offensive suggestion that I'd made via email and that he/she persuaded me was unfounded; fortunately that exchange took place before my unfounded suggestion hit the 'net. I've said throughout — and I repeat here to all my readers, including those commenters who've voiced frustration or annoyance at prominent critics of the Miers nomination — that we all have far more in common than separates us, for we wouldn't be having this spat but for the fact that we all deeply, sincerely understand the stakes of each SCOTUS nomination. There are indeed better angels of all of our natures, and especially now, while arguing and disagreeing among one another on matters of great weight and principle, we ought to be solicitous of each others' better angels. JPod's going out of his way in the blurb quoted above to bestow an effusive and not-quite-deserved compliment on me is not him sucking up to me (for he knows I'll continue to state my disagreements with him when and as we have them), but rather a gesture of acknowledgment intended for my better angel, and I appreciate it as such.

I continue to believe, in fact, that very few of the Miers critics are motivated by spite or any other type of ill will. Rather, they've either (a) formed their views based on faulty information, or (b) been insufficiently imaginative to escape their mental ruts as to what sort of nominee may be fit. JPod's comment about Ms. Miers' trial experience is an example of the former, and it's a particularly pithy and well-articulated mistake that I've been predicting in my emails for several days now. Here (slightly edited) is a quote from an email I'd sent to John Fund — whose reporting on October 12th in his WSJ OpinionJournal "Political Diary" column (subscription only, but heavily (within "fair use") excerpted here, for instance) correctly foreshadowed Ms. Miers' questionnaire response (and who deserves due scoop credit for that):

Re number of trials: It would not surprise me if, in fact, she hasn't tried very many jury trials to a verdict, given the nature and stakes of her practice. But Merrill Hartman, who's one of the very best state district judges in Dallas, has been quoted saying that he's had her in his court and she has an effective manner with a jury. I've also been before Merrill Hartman, and he doesn't strike me as an easy grader. A few other things you probably know, but would be remiss not to point out to the public who doesn't: The overwhelming majority of all civil cases settle, rather than going to trial. The system would collapse otherwise. I don't know what the latest stats are state-wide, but I'm sure it's well over 90%, and probably more like 97% would be my guesstimate. Moreover, everything else being equal, commercial disputes of the sort she's mostly handled (as opposed to, say, personal injury cases) tend to settle even more often, precisely because parties who can afford good counsel are typically themselves fairly sophisticated and can make reasonably precise judgments about what the reasonable settlement value of a case is. And in general, the higher the stakes, the greater pressure the parties feel to settle rather than put everything on the line — which means that the percentage of cases being tried to a verdict is usually lowest of all for the lawyers with the most sophisticated practices.

And to present a fair picture, you have to look at more than just cases tried to a jury verdict. You have to also look at non-jury (a/k/a bench) trials. You have to look at cases won or lost on dispositive motions (a motion for summary judgment or, in the federal system, a motion to dismiss that ends the case without ANY trial being held). You have to look at trial-like proceedings, which would include arbitrations, mediations, mini-trials, and the like. You have to look at cases that settled on the courthouse steps because one side was fully prepared and the other, seeing that, chickened out at the last minute.

Win/loss ratios are also misleading. Experienced courtroom lawyers will tell you that the measure of excellence isn't how many you've won and how many you've lost, but how many you've won that you ought to have lost, and how many you've lost that you ought to have won.

Precisely because it's so hard to get actual trial experience, firms all over the country (not just in Texas, but big firms everywhere) have long been looking for "training dockets" or other means, e.g., through pro bono, to get that trial experience for their lawyers. Some big firms in Texas kept doing the traditional high trial volume work — personal injury cases representing insurance companies — after that work became much less economically attractive (insurance companies stopped being willing to pay elite lawyers' rates). But Ms. Miers' original firm, Locke Purnell, [had the] reputation from at least the mid-1970s (when I was in law school) [of] being pretty committed full-time to big cases, mostly commercial cases. For firms like that, I suspect Ms. Miers' total number of trials and trial-like experiences will be pretty typical, but it's very unlikely to be in the "many dozens" range.

I'm highly confident that Ms. Miers' practice included hundreds of cases for which she was primarily responsible, plus others in which she shared responsibility, in addition to the few that were tried to a conclusion. I'm highly confident that she's taken many depositions, that she's argued many a procedural or substantive motion. I'm sure she's engaged in mediations, and perhaps also arbitrations or other forms of alternative dispute resolution. I strongly suspect she's handled evidentiary hearings short of full-blown trials — for example, for purposes of securing rulings on preliminary injunctions or making fact-findings essential to preliminary procedural matters (e.g., whether a privilege has accidentally been waived or whether a defendant is subject to personal jurisdiction in a particular forum).

In all probability, Ms. Miers has been keeping track of her professional time in increments of one-tenth hour from 1972, when she finished her judicial clerkship, though 2001, when she joined the Administration. I hope and trust that even as I write this and you read it, capable minions are combing through her time diaries and/or her firm's bills to compile a list of such things — numbers and types of cases, hearings, depositions, and so forth. I guarantee you that she could not have secured clients like Microsoft and Disney for her reported cases had she not had those experiences, nor gained the professional respect of her peers, opponents, and judges. And I'm quite certain that if one focuses solely on "eight cases that went through complete trials," one will be badly misled — and perhaps, as a pundit, become badly misleading to others — about the extent and nature of her professional career.

*********

But now it's time for another of Beldar's Extended Anecdotes About the Good-Ol'-Days When He Was But a Pup™:

Although I had many excellent sources of learning and inspiration as a young lawyer at Houston's Baker Botts in the early 1980s, two in particular stand out in my memory, and I consciously adopted them as my role models even then. One was the head of Baker Botts' trial department when I began working there, Richard B. Miller. The other was a younger partner in the firm's antitrust department, the late John L. Jeffers, Jr. At a superficial level, the two men could not have been more different.

Dick Miller's posture and manner practically screamed his background as a Marine, and his Harvard law degree was a bit of a surprise given his hardscrabble Oklahoma youth and lack of an undergraduate degree from anywhere. Dick had tried dozens and dozens of cases to a jury verdict early in his career, but the number of trials naturally tapered off considerably as his cases got bigger. Yet he was always a "trial lawyer's trial lawyer": No one ever, for a millisecond, thought that Dick was ever anything but incredibly eager to take a case to a jury verdict.

Dick taught me almost everything I know about handling expert witnesses. He taught me that in every jury trial, the jurors are desperately searching from the initial moments for the one personality in the courtroom who will dominate the trial — the person who becomes the frame of reference through which the jurors will process all the evidence — and that a successful trial lawyer needs to be that personality. He needs to find a way to make it so that even when he's sitting silent and motionless and the jurors are listening to the judge or another lawyer speak, the jurors are wondering, "I wonder what Mr. Miller's going to have to say about that?" or "That sure doesn't fit with what Mr. Miller proved through that last witness, I'm just not gonna swallow that." (The problem is, even if you understand this theory, the only way you can make it work is if you find and develop your own best gifts as a lawyer, and I could no more have imitated Dick Miller's particular gifts than I could have won an Olympic gold medal in the pole vault.)

I had the privilege of carrying Dick's briefcase as the third chair lawyer in a products liability automotive crashworthiness case in March 1982; lawyers from all over town, even judges, found an excuse to come sit in the courtroom to watch Dick win it. And yes he was tough and fierce and aggressive, but it was anything but raw aggression; Dick Miller was whip-smart, a master of both personalities and the law, a polished diamond of a lawyer. He was, without question in my mind, the single best courtroom tactician that I've ever seen, and by a healthy margin — and I've seen some very, very good ones.

John Jeffers, by contrast, had a physique more like my own, and was the product of a privileged background as the son of a successful litigation partner at Houston's Vinson & Elkins — elite boarding school, Yale College, then back home for UT-Law. In contrast to Dick Miller's career path, John had always mostly worked on big, extended cases. He'd tried, and won, and held onto through appeals, a huge antitrust case against Volkswagen — who'd been represented by his father. He'd spent something like 18 consecutive months in trial in an FTC proceeding successfully defending Tenneco's acquisition of Monroe Shock. Throughout his entire career, I doubt if he had as many as ten trials, and fewer to a jury; and completely aside from trials, I'm sure he'd handled only a small fraction of the total number of separate matters that Dick Miller had.

I had the privilege of working with John on two huge corporate take-over cases in 1981 and 1982, one of them very drawn out (American General's acquisition of NLT Corp.), and the other lightning-fast (Burlington Northern's acquisition of The El Paso Company). In each of them, John gave me responsibility vastly beyond what I'd earned, and with it the opportunity to observe, and participate at the margins of, the formulation of strategy. John was as low-key as Dick was dominating, and he had the mannerisms of an absent-minded professor. He tended to mumble. In a one-day trial, he'd probably have annoyed the heck out of both judge and jury, but over time in a longer trial — not through personality, but through sustained brilliance and preparation — he'd eventually win them over. John Jeffers taught me more than anyone else about seeing the big picture, grasping what was actually driving the players (even if they didn't know it themselves), finding ways to use my clients' intrinsic advantages to their best potential and minimize their exposure from their weaknesses.

As it happened, Dick Miller and John Jeffers squared off in what's still one of the most famous disputes in American history, Pennzoil Co. v. Texaco Inc. Dick, who'd left Baker Botts to open a litigation boutique, was Texaco's lead counsel in the eventual Houston jury trial. John was Pennzoil's master strategist behind the scenes throughout. Along with his own partner Irv Terrell and the talented and flamboyant (and decidedly un-Bottsian) Joe Jamail, John was among the three lawyers to take significant roles in front of the jury for Pennzoil during trial.

But as much as I wanted to, I didn't work directly with John on the case. I still vividly recall the Sunday morning in January 1984, when Jeffers, calling from New York, had gotten me out of the shower. "Dyer," he said, "I'm up here with [a Baker Botts corporate partner] riding herd on this Pennzoil-Getty deal, and the whole thing's beginning to blow up. Looks like Texaco's trying to steal the deal. Can you get on a plane?"

"Oh, man! Wow! I'm really sorry, John," I said, "and this just kills me to have to say. But I'm picking a jury in federal court here in Houston tomorrow morning on one of my first-chair cases, and there's no way I could get out of it or hand it off." You see, while I'd been pleased to get the chance to work on some huge, mega-cases (mostly mergers and acquisitions litigation), I'd also cultivated my own docket of still significant but much smaller cases that I could use to earn the first-chair jury trial experience I also wanted. And from January 1984 through the end of 1986, I tried nine of those smaller cases first-chair, most of them to juries, plus another couple of second-chair trials, and I also worked on four other M&A matters. But the price I paid for getting that early first-chair experience was that I never could free up a big enough chunk of time to join the Pennzoil team. I was reduced to watching it from a privileged position on the margins, with insider access to one side. I knew all the lawyers involved in the trial, and I spent every hour that I could steal from my own practice watching it.

Pennzoil, of course, won the jury trial, and the subsequent appeals. The American business and legal communities were stunned, and most of them thought it was a huge aberration. But it wasn't. In the big picture, Pennzoil won because of John Jeffers' superior strategy throughout — not only in the jury trial portion of the dispute and the direct appeals from it, but also including proceedings in the Delaware chancery and state supreme courts, the federal trial and appellate courts of New York, an injunction case in Oklahoma, two trips to the U.S. Supreme Court, and ultimately the bankruptcy courts. Miller was the superior tactician — asked immediately after the jury trial who they'd hire themselves if they were in trouble and needed the most effective lawyer they could find, almost all the jurors named Miller. But strategy ultimately beat tactics to the tune of $3 billion of Texaco's cash that became Pennzoil's — and while of course the underlying facts of the case were responsible for its magnitude, the lawyering played a significant part too.

Regular readers will know that I use the vulgar term "candy-assed litigator" to show disdain and the term "trial lawyer" to show respect.  (The latter does not mean "plaintiffs' personal injury lawyers," who may or may not be "real trial lawyers.") Superficially, John Jeffers might have looked to some like a candy-assed litigator — but every lawyer who made that mistake ended up getting his rear end chewed up and handed back to him. I am here to tell you, friends and neighbors, that both John Jeffers and Dick Miller were genuine, high-test, undiluted, and very potent trial lawyers. More than any two other lawyers I've ever met, Dick Miller taught me tactics, and John Jeffers taught me strategy. You've got to know both to be a genuinely successful and well-rounded trial lawyer, and neither Miller nor Jeffers was a slacker at the other's specialty. Having had the chance to learn from them both was a unique opportunity — I was in exactly the right place at the right time — for which I'll always be grateful to both men.

*********

That's a long anecdote, and you may be wondering why the heck I chose this post to tell it in.

You may have noticed, gentle readers, that with general consistency, I've referred to Ms. Miers in my posts and comments as a "courtroom lawyer," rather than as a "trial lawyer." That's been for two reasons. First, I didn't want people to assume (wrongly) that any significant portion of Ms. Miers' practice has involved representing plaintiffs in personal injury cases, and that's what the press and politicians typically mean when they talk about "the trial lawyers" or "the trial lawyers' bar." But the second reason is that I don't have enough data to say with confidence whether Ms. Miers is, or isn't, a real "trial lawyer" in the sense that I use that term. And you can't tell one way or the other from the questionnaire to which JPod referred. That was the point of my telling the story of John Jeffers. For me to use that term to describe her, I'd have to either have worked with her first-hand under pressure for a while, or else have learned a whole lot more about the cases she's handled, plus spoken with others whose judgments I trust and who'd been involved on a first-hand basis in at least some of those cases.

Everything else being equal, I'd slightly rather have a real trial lawyer on the Court than a mere litigator. I hope she is one, and there are some promising signs; I may or may not be able to draw a confident conclusion about that with more information. But while I think the difference between real trial lawyers and mere litigators is (or ought to be) very important to clients, those differences are probably not very important for purposes of being a Supreme Court Justice. Supreme Court Justices don't try cases, so whether one of them has the secret guts to go to trial, plus the ability to project that to one's opponents, just isn't very relevant on the Supreme Court.

Thus, I can tell you this with great confidence, even without knowing whether Ms. Miers would or would not meet my highly subjective standards for being a "real trial lawyer": JPod's assumption — "If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever" — is badly wrong. His insistence that settled cases are "beside the point" means that he's never understood how litigation actually works, and that's why all those "billions" of lawyers are emailing him! It's the sort of thing that only someone very inexperienced in the American civil justice system could say. I'm delighted for JPod's sake that he apparently is still a virgin, apparently unacquainted with even the basics of civil litigation; may he never be sued or need to sue, may he ever remain such. But there's just no such thing as pure "judicial legal skills" that only are used during trials on the merits. Let's leave aside for now deal lawyers, because they help clients avoid courtrooms by anticipating disputes and resolving them or allocating their risks in advance. The only way that lawyers who handle litigation can "help people and corporations avoid courtrooms" is by being fully prepared to go into courtrooms, and projecting to the other side their readiness and capability to do so.

That includes drafting pleadings and motions and briefs. That includes eliciting testimony through oral depositions and working with expert witnesses. That includes presentation of one's case to opposing counsel and typically now also to a mediator as part of settlement discussions. If the lawyer's any damned good at all, everything that is done in all of the pre-suit and pre-trial phases of a litigation matter is done with an eye toward how it would affect the ultimate trial. JPod denies that "a career spent settling cases prepares you to rule in matters that have been adjudicated by lower courts." I'm sorry, but that's completely wrong; cases don't settle because one side suddenly persuades the other who's right and who's wrong, but because one side causes the other to reevaluate its risk-benefit equation for going to trial. It's the anticipation of results of the sort that play out in that tiny percentage of cases that do go to trial which causes and permits all the rest of the cases (the huge majority) to settle.

In the end, I'm no more troubled that Harriet Miers hasn't tried dozens of cases than I was that John Roberts hadn't tried any, nor even taken a deposition. I've tried dozens, and taken hundreds of depositions, but my record reflects trade-offs, as do each of theirs. Overall they're both well qualified for, and will bring something useful to, the Supreme Court. I'm not and wouldn't. And oddly enough, I doubt that either of my two heroes that I've written about in this post would have been particularly well-suited to the Court either; some people are such good trial lawyers, and so unrelentingly competitive, that they actually would not make very good judges at all.

Is the advice of a White House Counsel likely to be torqued by the SCOTUS brass ring?

In a typically eloquent editorial in today's WSJ headlined "Unwise Counsel," InstaPundit Glenn Reynolds suggests that the Miers nomination has been flawed by both "substantive" and "procedural" mistakes. With respect to the latter, he argues that "[t]he entire affair gives the impression of an administration that is distracted and not up to its usual standards of well-oiled efficiency on political and judicial matters," and he gives some reasonably persuasive examples to support that. But his substantive argument relates to his observation that "[t]he path from the [White House C]ounsel's office to the Supreme Court is not well-trodden, and for good reason." As to this, I'm unpersuaded.

Prof. Reynolds first notes that the fact that Ms. Miers' has been Dubya's lawyer "has already given rise to paranoid theories from the left to the effect that Mr. Bush is trying to protect himself from prosecution growing out of the Plame affair or the Iraq war." Well, yes. But they're exactly that — paranoid theories. If an American President sends to Capitol Hill a proposed new "court-packing" amendment to the Judiciary Act that would instantly expand the Supreme Court to 19 justices on the same day that the House Judiciary Committee is taking up impeachment proceedings, then we might have a problem. But until then, I don't think this or any American President should use the possibility of generating paranoid theories as a good reason to disqualify from consideration a lawyer whom, by definition, the President has found sufficiently competent and trustworthy as to become Counsel to the office (not just the office-holder) of the President of the United States.

The "other half [of] the trouble" cited by Prof. Reynolds I find even less persuasive. I agree with, but am not much troubled by, his premise that "[t]he tendency in recent years to nominate judges from the U.S. Court[s] of Appeals to the Supreme Court has led to a certain amount of politicking and positioning by appellate judges who think they have a shot. That's bad." But I'm mystified by — and to the extent I do understand it, I simply disagree with — his additional assertion that "surely it would be far worse if future White House counsels started letting hopes of a court nomination distort advice they offer the president."

It's ethically incumbent upon every lawyer to be alert for personal interests and motivations that might impair his or her objectivity and judgment, even subconsciously, and therefore diminish the value of his or her advice to the client. And I presume that what Prof. Reynolds is suggesting here is that the prospect of a Supreme Court appointment creates such a personal interest, and that a White House Counsel's motivation for career advancement therefore runs a risk to his or her objectivity and judgment.

But if that creates a potential for conflicting interests — "Is this good for me? Is this good for the Nation and the POTUS? What if it's only good for one and bad for the other?" — it's certainly not a hidden potential conflict. And in general, so long as a potential conflict of interest is either obvious or else disclosed to the client, the client may make a knowing and valid choice to waive it and proceed to rely on that lawyer's advice and representation anyway.

How obvious is this potential conflict, if one there be? It certainly occurs to me, to every other practicing lawyer, and to any client who stops to think about it that in almost every matter we work on, whether we do a really good job on that matter is definitely likely to have a big impact on us in the future. It may well determine whether we get paid this time, and hired again by that and other clients in the future; or promoted within our law firms; or gain in the esteem of various tribunals, opponents, and third parties. It might make us richer; the law of the jungle and most law firms is that "you eat what you kill" (with "kill" being broadly defined, but generally defined to exclude one's own clients as targets). And this is true not only for adversary practice lawyers, but also the quiet ones whose worlds consist of tax codes, offering circulars, wills, or convertible debenture indentures (who, as they'll tell you, are quite often are concerned with considerably larger prey).

And whether any sort of lawyer has done a "really good job" on almost any sort of matter is, in turn, defined in almost every instance by the results we get for our clients. That is to say, to the extent we lawyers have this sort of personal interest, this motivation to shine — and we virtually always do; is anyone shocked to learn that lawyers as a class are ambitious, or that water is wet? — those interests are generally defined by, and therefore tightly aligned with, the interests of our clients!

That's not a problem. That's a good thing, at least in general. Some people, in fact, quite reasonably see personal ambition as a highly desirable quality in their prospective lawyers. They absolutely, positively want the hungriest shark, the most cunning jackal, the most far-sighted eagle, the wisest and most fierce lion of the bar, whom they can find.

I'm simply unable to see how being motivated by desire for the President's recognition and gratitude is likely to ill-serve either the POTUS or the beneficiaries of the POTUS' own fiduciary duties, the American people. I know that Prof. Reynolds has thought and written a great deal about actual and potential conflicts of interest. And maybe, jungle metaphors aside, I'm being insufficiently imaginative. But for me to take this one seriously, someone needs to articulate a hypothetical scenario in which the eligibility of a White House Counsel for a future SCOTUS nomination is likely to actually compromise that Counsel's objectivity and judgment in a way that works to the detriment of the POTUS and/or the Nation. Maybe Prof. Reynolds had such a scenario in mind, but it fell prey to length limitations or an overzealous editor's pen. Or maybe you, gentle readers, can posit one?

K-Lo's fuzzy logic on Miers

I've never met nor spoken with National Review Online editor Kathryn Jean Lopez — K-Lo — and I'm sure she must have the highest ambient email noise of everyone at NRO, which in turn makes it awfully hard to make even her constructive acquaintance that way. I admire her wit (not infrequently self-depricating), her values, and her output. But one of the downsides of blogging generally, and in particular writing a lot of short posts that may not have been the product of careful reflection (even by blogospheric standares of "carefulness") is that one's more inclined to stray off into logical errors.

I think K-Lo fell victim to that a couple of times today with respect to the Miers nomination, on which she's expressed strong and almost uniformly very negative (if sometimes snarky-funny) opinions. I reprint here (slightly revised) my emails to her, which have not yet drawn any response, nor do I think them particularly likely to do so (see above, re ambient email noise):

------------------------

Changing one's mind vs. changing the law

K-Lo, you wrote:

President Bush has said that he knows Harriet Miers "well enough to be able to say that she's not going to change; that 20 years from now she'll be the same person with the same philosophy that she has today." But when considering the case presumably more personal and important to her than any individual case before the Supreme Court will be — whether to serve on the Court — she changed her mind over the course of months.

Surely, however, even intelligent non-lawyers can readily understand the difference between the sort of "case" involving one's personal goals or preferences, and the sort of "case" referenced in Article III of the Constitution.

If I am asked about my interest in a new job that will require me to go through an extremely unpleasant and intrusive application process (ending my personal privacy, subjecting me to ridicule from the ill-informed and the spiteful), I might quite reasonably conclude that the benefits anticipated don't justify the costs — a personal balancing that leads me to turn the job down. However, if someone whom I trust and admire on a personal basis, as part of his own very important job, asks me to reassess the benefits of my taking the job — and in particular, to re-weigh the public good to be served, as that trusted person views the public good — then I might certainly come to a different conclusion. As it happens, the President hasn't asked me, nor told me he thinks the Nation would be better off with me on the Supreme Court. But he has asked that of, and told that to, Harriet Miers. Are you suggesting that a direct request from, and the considered opinion of, the President of the United States are entitled to no weight?

The process of making even the most profound personal decisions is intrinsically different than the process of judging a "case" or "controversy" within the meaning of Article III of the Constitution.  Equating these two processes is very misleading. And many of us — I presume you, too — think that the future of our Nation, and the integrity of its Constitution and rule of law, are indeed very much more important than our individual lives and fortunes.

------------------------

Ethics: Not sufficient, but necessary

K-Lo, you wrote:

And do you really expect people to be convinced she's a SCOTUS fit because: "Throughout her career in local, state and Federal governments, Harriet Miers has held herself to the highest ethical standards"?

But you surely understand the difference between the necessary and the sufficient. Do not fault the White House for assuring the public that Ms. Miers is and has always been ethical. Making that assurance is particularly appropriate when a nominee has been accused of being a "crony," as this one has, and by you. "Crony" has connotations that include corruption. That this nominee is not corrupt — that she's no Abe Fortas — is a point worth making, and perhaps a qualification that you would agree ought to be necessary for any Supreme Court Justice.

Nor suggest, please, that by making that assurance, the White House has argued that being ethical is sufficient all by itself. If it were, it would have been a much shorter set of talking points.

Words of one syllable about the Conference Call Cause Célèbre

In tomorrow's WSJ (hat-tip Orin Kerr at the VC), John Fund has this breathless report (boldface mine):

What followed [in a conference call about the Miers nomination on October 3rd], according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"

"Absolutely," said Judge Kinkeade.

"I agree with that," said Justice Hecht. "I concur."

Mr. Fund is far, far too good a reporter, however, to fail to include a paragraph somewhere in his story (the twelfth one) that includes the blindingly obvious observation about what his factual reporting does and does not reveal (boldface, again, mine):

The benign interpretation of the comments is that the two judges were speaking on behalf of themselves, not Ms. Miers or the White House, and they were therefore offering a prediction, not an assurance, about how she would come down on Roe v. Wade. But the people I interviewed who were on the call took the comments as an assurance, and at least one based his support for Ms. Miers on them.

Words of one syllable about that last sentence: If they took it that way, then each of them made a guess too. Duh.

It's unusual, but not unethical or improper, for sitting judges to make guesses about how someone else who might be confirmed to a different judgeship might possibly vote if a particular matter possibly comes up in the future. If these particular judges know Ms. Miers well, then their guesses might even graduate from the category of WAGs\^*/ to the higher status of educated guesses. Neither man claims to have based his (at-best educated) guess on anything in particular that Ms. Miers has promised, or written, or said. Indeed, Justice Hecht has repeatedly denied having heard Ms. Miers make any promises or assertions or statements about how she might rule on abortion issues if she's confirmed, or even what she thinks of Roe as a precedent.

But except for the purpose of playing guessing games, this is basically meaningless information — even if it's written up by someone as diligent and articulate and well-connected as Mr. Fund. Even if it's in the Wall Street Journal. Even on a Monday.

I wish someone had asked one of these judges this (compound) question: "Hey, Judge, would documentary or testimonial evidence confirming your statements and that of the other judge on this conference call — even a videotape! — have been admissible under any theory of evidence in any court in the United States to prove anything whatsoever about Ms. Mier's actual intentions, or to prove what she's actually going to do?" 'Cause those questions could also have been answered in one word of one syllable, as to which no one would have to guess at all: 

"Nope."

-------------------------------------

\*/WAGs = "wild-ass guesses," a trial lawyer term of art used as well in some other professions, I'm told.

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.

*********

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!

*********

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).

*********

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.

*********

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.

The "Trust Dubya" argument well made

Melanie Kirkpatrick, editorial page editor of the Wall Street Journal, says: "Count me out [of the conservative revolt against Harriet Miers] — at least for now." And she says why, in an argument that isn't new or conclusive, but that has rarely been as eloquently made in such a prestigious publication. To those who insist that this isn't dispositive, I again agree — but I say again: It's not just nothin'.

Beldar on JPod on Merritt on Miers

JPod links a post by liberal blogger Jeralyn Merritt over on TalkLeft as another argument that even faint praise from the Left is more reason for the Right to condemn Harriet Miers. Here's a paragraph he didn't quite quote in full, though (boldface mine):

The main thing to keep in mind are the alternatives. From a legal standpoint, we lucked out with both Roberts and Harriet Miers. If she were to withdraw and Bush were then to repay the radical right what they think he owes them, we [on the Left] will be far worse off. We didn't get Wilkerson or Luttig from the 4th Circuit, Rogers Brown, Edith Jones, Priscilla Owen or Alberto Gonzales. But we may, if Harriet is not confirmed.

Now, I'm pretty sure that notwithstanding his disdain for Ms. Miers, JPod would rather see her as the nominee than AGAG. Not even JPod (whose sense of humor I greatly admire) could bring himself to argue from this — "Lo! Behold! Miers must be even to the left of Gonzales, for the Left has said it, and it must therefore be true!"

In fact, Ms. Merritt's post is pretty hard to argue with, from the perspective of someone on the political Left. And she points out one possibility, solidly grounded in both the Constitution and very recent historical precedent, that I don't recall seeing anyone at NRO address yet: If this nomination is defeated, stubborn ol' Dubya may recess-appoint Ms. Miers and wait for the 2006 re-roll of the Senate, then re-nominate her in 2007 and point to her intervening judicial experience and track record from the bench as (new) qualifications. Now, I know Laura tells him to try to control that smirk. But the man has a sense of humor, and he just might think that was pretty funny.

"A" for intentions, "B-" for follow-through

In non-Miers news: Only a lawyer trying to be reader-friendly — but not quite making it — would write a lede like this one:

A federal trial court in Chicago has ruled recently that the ancient legal doctrine of trespass to chattels (meaning trespass to personal property) applies to the interference caused to home computers by spyware.

D'oh! How about, instead, something like this:

A federal trial court in Chicago has ruled recently that the ancient legal doctrine of trespass to chattels (meaning "messin' with someone else's stuff") applies to the interference caused to home computers by spyware.

Good ruling, though, and otherwise a very good news article. Ya hear that, GlaxoSmithKline? (Hat-tip InstaPundit.)

Fisking NRO's latest anti-Miers manifesto

I present — with ample but goodnatured snark, and without much further ado — a front-to-back fisking of the latest position statement of the editors of the esteemed National Review Online, entitled "Start Over."

That's very good advice — and I strongly suggest that the NRO editors take it immediately! (Their editorial text is in black, my interlineated comments are blue; I've dispensed with my usual block-quote formatting due to its length.)

-----------------------------------------

When President Bush nominated Harriet Miers to the Supreme Court, we called it a missed opportunity. The ensuing debate has confirmed that judgment. One would, of course, have to venture outside the confines of NRO to find both sides of such a debate, and neither can one find much inside NRO to suggest that its editors' and most of its contributors' minds were ever receptive to contrary evidence or argument. For all its fury, a consensus was reached early on that point. Indeed, inside NRO, a furious consensus was reached within approximately thirty minutes after the pick was announced, by which time NRO had already begun spreading vicious misinformation about Ms. Miers' law school and career records and her law firm's reputation (for which they've since properly apologized; but first impressions are what they are.) Leaving aside the president and his employees, even Miers’s fiercest defenders allow that she was not their top pick — or even their tenth. Leave aside too that the Constitution gives the privilege and duty of the pick to the President, and that not even Ms. Miers' fiercest defenders have his decade-long first-hand experience as her client.

There is very little evidence that Harriet Miers is a judicial conservative since (like about half of the Justices ever nominated) she has not previously been a judge, but only helped this Administration pick and vet them, and there are some warnings that she is not if you count hysteria from NRO over the assurances of the President. Miers is said rarely to have raised her voice in the Bush administration’s internal policy debates, but it is known that she was a strong defender of racial preferences when they were being challenged before the Supreme Court. Of course, the passive voice here is useful to conceal the fact that anyone who actually had full access to the Administration's internal debates on what position to take in the Grutter case has a continuing fiduciary obligation to the President to maintain the confidentiality of those privileged discussions. But by all means, despite the lack of on-the-record and for-attribution details, let's trust an oath-breaker who him/herself can't be trusted to keep client confidences, and on the basis of those leaks condemn Ms. Miers, who certainly can. In the end, her influence helped sway the Bush administration to file a brief defending those preferences, which, in turn, helped sway the Court to uphold them. The amicus brief in question, of course, bore not Ms. Miers' name, but that of left-wing radical Solicitor General Ted Olsen. It was widely speculated at the time to reflect a political compromise designed to ensure the President's 2004 reelection by opposing outright quotas but not race-neutral\^*/ "plus factors." From this murky political decision, NRO is ready to draw conclusive, iron-clad inferences as to how Ms. Miers, with the protection of a lifetime appointment, might rule as a judge on purely legal issues. But the filing of this brief is of course ultimately a criticism, and I would agree a fair one, of the President, to whom the Administration's position must ultimately be attributed (and who was indeed reelected, thus allowing us to argue over President Bush's nomination of Harriet Miers instead of President Kerry's nomination of Larry Tribe).

Miers’s own career as a lawyer shows a strong tendency to identify with local elites and establishments, such as the time when she took a pro bono case for a single mother against the Department of Health & Human Services all the way to the Supreme Court, to go along with prevailing ideas, like the idea that women couldn't possibly become lawyers, partners, managing partners, state bar presidents, Counsel to the POTUS, etc., and to avoid doing anything that might cause unpleasantness or rock the boat, like risking her own career and the future of her law firm on a merger with a comparably sized cross-state rival. These are useful personality traits, but they are not the traits of a Scalia or a Thomas — the kind of justice this president led conservatives to expect. (Italian- and African-Americans being famous for not challenging "prevailing ideas" and stereotypes either, I suppose.)

Miers’s record on the Dallas City Council has been described as that of someone who was neither liberal nor conservative — not that open-mindedness in an elected municipal position might be a good indicator of a judicial temperament. She rose at the American Bar Association, an organization deeply institutionally hostile to conservatives, whose abandonment of its traditional apolitical service role she bitterly fought in attempting to overturn the ABA's strident pro-Roe position. At the White House she showed herself intensely protective of the ABA, opposing efforts to end its privileged but historically useful role vetting judges — a privilege that the politicized (see above) ABA had used to promote liberal judges and downgrade conservatives ones and that it has been able to continue in large measure because other conservative activists, having less courage than her, fled the institution and left it to liberals. She donated money to the Al Gore campaign, Gore then being a pro-life candidate whose Texas campaign chairman was Rick Perry, Dubya's successor as (by then a Republican) Governor, when her colleagues asked her to, and helped establish an endowed lecture series at Southern Methodist University that brought feminist icons like Gloria Steinem and Susan Faludi to campus, which of course means she agreed with every word those speakers said, whether she picked them or not. She made a point of refusing any affiliation with the Federalist Society while nevertheless appearing as a speaker at its functions and working hand-in-hand with FedSoc Exec-VP Leonard Leo, who became one of her nomination's earliest and most vocal supporters based on his work with her to change the ABA's pro-abortion-on-demand position (see above).

Miers’s supporters argue that her conservatism is reflected in the judicial picking she allegedly did for President Bush. Most of this work was, however, done before she became counsel. Never mind jabbing the Senate Dems in the eye by re-nominating all the circuit judges they'd filibustered — rather dramatically upping the stakes through something more provocative than anything the Administration had done before, 'cause she flees from controversy (see below). And then there's that Roberts fellow. They say that she is pro-life. (Her campaign to get the ABA to stay neutral on abortion lends some credence to that avowal (duh! ya think?), and qualifies, but does not erase, the impression that she flees controversy. Fleeing from controversy being of course the very hallmark of successful courtroom lawyers; I understand that's exactly why Bill Gates' company chose her for a massive class action lawsuit in a hostile forum.) They say that she has a strong evangelical faith. But neither being pro-life or an evangelical is a reliable guide to what kind of jurisprudence she would produce, even on Roe, let alone on other issues. Nothing short of electrodes running from the next Associate Justice's knickers to a car battery at NRO's offices will satisfy these guys. Indeed, the fact that her supporters have had to resort to such weak defenses — and, worse, to pleasant generalities about her kindness to her colleagues and name-calling about her critics’ alleged sexism — is perhaps the most distressing evidence that no stronger arguments are available on behalf of this nomination. Cough-cough-CHOKE — but see 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and counting; but see also this guy, passim, every day during the past two weeks.

We are left with only stray clues to Miers’s value system. Unlike John Roberts, or for that matter Ruth Bader Ginsburg, Stephen Breyer, or Clarence Thomas, Miers comes to the highest Court in the land as practically unknown quality, a gamble for incredibly high stakes. (Unknown and a gamble unless, of course, you're the President, and she's been your lawyer for ten years through thick and thin — in which case you know her better than any President has ever known any SCOTUS nominee in history. In which case you might think she's the right pick precisely because the stakes are so high, and you really don't want to gamble.)

Then there is the related issue of qualification. She has had real accomplishments. One sentence. She does thirty-five years of service to her family, her church, her firm, her profession, the people and Governor of Texas, the people and the President of the United States, and for that thirty-five years, NRO can spare her one sentence, five words, as part of an unrelentingly hostile editorial. And here comes the "but": But it speaks volumes that the president cited her service on a lottery commission as a reason to put her on the Supreme Court. Yeah, let's make fun of her for cleaning up, at the request of the then-Governor, an apparently corrupt public agency upon which Texas public school finance was dependent to the tune of more than $7 billion. Cleaned house in Texas, brought Dubya his coffee at the White House! Bingo, hee-hee! Some of the president’s supporters have argued that excellence does not matter in a Supreme Court nominee — that really any one of 50,000 lawyers could adequately do the job. Link, please? Or are you really suggesting that there are 50,000 lawyers who have qualifications comparable to being, say, Counsel to the POTUS? I certainly wouldn't. This is unconvincing on its face. But if a refutation is needed — and since this is a classic straw man argument, let's pretend a refutation is necessary! — consider the career of Harry Blackmun. Here was a judge  — one with the circuit court record which NRO complains that Harriet Miers lacks — described even by his admiring biographer Linda Greenhouse as intellectually insecure. Like Miers, he too was devoted to local establishments: the Mayo clinic in his case rather than the ABA. Sure he was a loyal Republican; but almost as soon as he arrived on the Court, he was transformed. And Richard Nixon did not know him from Adam; could that maybe have been the problem?

So, we have reason to fear, will be the case with Miers. And even if she does not become a Blackmun, her record strongly suggests she will be an O’Connor — a split-the-difference judge. This would be the same record you've just said she doesn't have one of, right? As one of her former colleagues has said of her, Miers’s office was the "place where the action stopped and the hand-wringing began." We all know that action and not carefulness is what those SCOTUS superheroes are all about! Ahh-nuld for SCOTUS! If she follows that course, we will be left with a Court that retains immense and inappropriate lawmaking power but refuses to make clear laws. Yikes! Major editing error! "Make ... laws"?!? Surely you mean "write clear opinions," NROniks! Not that a practicing lawyer and experienced business manager might bring anything useful to the existing eggheads distinguished members of the Court. The rule of law, like the career of every successful courtroom lawyer, is based on the making of arguments and the giving of reasons, not on sentiment or group loyalty — which is the basis on which Miers’s defenders want us to support her. $100 to the first NRO editor who finds that argument in those words coming from me or Hewitt — or for that matter, from the President. Those sound instead like arguments that could be characterized as justifications for "cronyism"  — an ugly, disparaging, mocking term that this editorial, to its credit (but unlike much other NRO punditry of late), manages to avoid.

"The president trusts her," is not a good enough argument. But it's not nothing, either. (See above, re Blackmun; see also Kennedy, Souter, et al.) The president has trusted a lot of people, some of whom have worked out fine, others less so. To which category will Harriet Miers belong? Perhaps the same category as all his other judicial nominees (except the Clinton leftovers), d'ya think? No President can bat 1.000 on every nominee to every single office; but this one has a pretty fabulous record so far on his judicial appointments, through and including our new Chief Justice. It is possible that the confirmation hearings will shed light on that question. Not that NRO will wait for those before making up its collective institutional mind, circulating an online petition, etc. But we doubt it, given the ease with which nominees can sidestep searching questions. No, no, no — searching questions are fine, but it takes a fairly sharp senator to frame one. What's not okay is nominees giving precommitments on how they'll rule, apparently in exchange for confirmation votes. Y'all know that; you're just being purposefully dull here, I think. How many of you didn't feel better about Chief Justice Roberts after his hearings?

What, then, should be done? Some conservatives have called on the president to withdraw her nomination, and a few have urged senators to vote against her. And some have gotten their knickers so twisted that even Bill Clinton couldn't untwist 'em. If the president withdrew the nomination, we believe that he would seek a replacement who could unite conservatives — as he no doubt expected Miers to unite them  — and then prompt a filibuster that, due to the Republican half of the Gang of Fourteen's well-meaning idiocy, couldn't be broken. But that nominee would be tarnished, perhaps fatally, by the suspicion that the president was forced to pander to the Right. The president, moreover, surely does not want to risk looking less than strong and steadfast. "Strong and steadfast" would, of course, be defending and sticking with an able nominee against panic and hysteria; much better he should look like he picked a sissy who runs from trouble. The prudent course is for Miers to withdraw her own nomination in the interests of the president she loyally serves. Cue Dana Carvey's Poppy imitation: "Nuh-uh, wouldn't be pru-dent!" Loyal service does not mean capitulating despite the wishes of the President she's served for ten years. The president could then start over. Ramesh is muttering, "Be still my heart!" Ponnuru for SCOTUS, it's a groundswell! Both he and his party would probably benefit from having the clear fight over the direction of the courts that only a new nominee would allow. And after that clear fight, when the next nominee is shot down in flames after a successful Dem filibuster, we can all toast marshmallows together! But for that to happen, some conservative senators are going to have to send a diplomatic message to the White House. Another editing/logic error, guys — you just said a few lines up that it's supposed to be Ms. Miers who falls on her sword, not Dubya and the senators who stab her. Ya know, I'll bet Harriet Miers would have caught these errors.

And conservatives and the White House will have to restore their working relationship. Some hard and ill-considered words (amen) have been said on both sides (amen), but it is time (amen!) for all involved (Preach it, brothers and sisters! Amen!) to follow their interests (@&$!#@*#@%&^!!!), instead of their resentments. Guys, it's not all about you, or your interests, nor me or mine. It's about the Court and the Nation. Let's work together, patiently and without spite, being solicitous of one another's feelings and opinions, toward that end. Okay?

------------------------------------

\^*/UPDATE (Sat Oct 15 @ 1:00am): I added the word "race-neutral" to my fisk above after re-reading the actual amicus brief, which effort I strongly, strongly recommend to anyone who is ready to condemn Harriet Miers' nomination based on doubts about her position on affirmative action. (See also the contemporaneous White House statement about the brief.) I'd forgotten that the Administration's amicus brief in fact asked the Supreme Court to strike down the University of Michigan Law School's program on grounds that it (like the undergraduate program striken down in the companion Gratz case) was really a disguised racial quota. What drew fire from serious conservatives at the time was the Administration's failure to condemn outright Justice Powell's separate opinion in Bakke with its "race as a plus-factor" analysis — i.e., to go all the way to a true color-blind Constitution that takes the Fourteenth Amendment to mean exactly what it says — and Bob Novak and others attributed that "failure" at the time not to Ms. Miers, but to then-White House Counsel Alberto Gonzales. But this amicus brief was still far to the right of where Justice O'Connor's opinion ultimately came out; and indeed, even to a committed considervative, it is actually defensible on tactical grounds (a la the Thurgood Marshall "nibble strategy" used effectively in Sweatt v. Painter, for instance) in that it would have overturned the Michigan Law program without asking the Court to directly overrule any of its prior precedents. Before you use it to argue that Ms. Miers supports racial preferences, read the brief!

Miers, lesser-known aspects of the Constitution, and senatorial gotchas

Hoover Institution senior fellow and NRO contributor Peter Robinson today joined the off-key chorus of those singing shrill warnings about how SCOTUS nominee Harriet Miers is likely to be embarrassed in her confirmation hearings by noted constitutional law scholars like Slow Joe Biden (76th out of 85 in his class at Syracuse Law):

Item: On Brit Hume's show last night, Fred Barnes announced that Miers might have trouble during her hearings, but only if senators set out to embarrass her by asking her about "the third amendment," "the seventh amendment," and other, lesser-known aspects of the Constitution. Think about that for a moment. I mean, really. Just think about it. The third and seventh amendment are parts of the Bill of Rights. Asking Ms. Miers to demonstrate at least rudimentary knowledge of the Bill of Rights would represent an unfair and hostile action? This is what the Miers nomination is doing to us.

In response, NRO's Jonah ("Blessed as a Peacemaker") Goldberg — also the author of a very funny yet reflective column today that concludes "Take plenty of fluids, wait for the hearings, this fever will pass" — offers up this sly bon mot as a comment on just how important some of those "lesser-known amendments" really are:

I am a third amendment enthusiast. I've simply been waiting (and waiting, and waiting) to be single issue voter on the subject.

("If it would help, I could put on a uniform?" — The Couch)

And Mr. Robinson's amigo Hugh Hewitt takes him fondly but firmly to task:

As for the Third Amendment, or the Seventh, or the Ninth, or the dormant commerce clause or the damned 11th Amendment which is almost impossible to teach — the questions being compiled by the Cornerites have almost nothing to do with judging! Do they think John Roberts was prepared to discuss the quartering of troops in private homes?

Alas, this was a rare misstep by Brother Hugh, for our new Chief Justice did indeed discuss the Third Amendment in his confirmation hearings, and even brought up the subject himself:

SPECTER: ... Do you believe today that the right to privacy does exist in the Constitution?

ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways.

It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.

It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.

It protects privacy in matters of conscience.

It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.

I remembered this exchange because it struck me at the time how this answer sounded, even reads, like how an opinion refusing to further extend Griswold v. Connecticut might begin. (Thus far; no farther.) But note, however, that our new Chief Justice didn't go into a discussion of Third Amendment precedents. There just aren't many.

John Roberts' grasp and sheer memory of Supreme Court precedent, and by no means limited to con law cases, is indeed almost superhuman. But he's never tried a case, never even taken a deposition. Does Mr. Robinson not recognize that there are vast areas of pretrial and trial procedure on which, unless they happen to have come up in one of his own appellate cases, our new Chief Justice might also have been stumped? Does Mr. Robinson think the President, the Senators, and the public are entirely incapable of appreciating different kinds of smarts?

But indeed, even when it comes to "lesser-known aspects" of the Constitution, Ms. Miers has something in her practice background that even Chief Justice Roberts can't claim — something that prompted me to fire off an email to Mr. Robinson that I reprint here (with slight alterations and with apologies to my regular readers who will recognize some of it as having been lifted in part from one of my earlier posts):

You're aware, I assume, that Harriet Miers — who you're busy suggesting has never read or retained the basic contents of the Constitution and its small handful of Amendments — litigated 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), which is one of the only reported cases in the history of the Republic on the Twelfth Amendment to the United States Constitution.

You personally were intimately familiar with the Twelfth Amendment a month ago, were you not? Oh, of course you were! Among the legal elites here in Texas, we speak of little else, so I'm sure the same must be true of Cornerites and the good fellows of the Hoover Institution.

The stakes were merely whether both George W. Bush and Richard B. Cheney could receive votes from the Texas electors in the 2000 election. In other words, if Ms. Miers had lost, the Supreme Court's decision in Bush v. Gore would have become moot.

Ms. Miers' opposition in Jones v. Bush was merely Sanford Levinson (BA-Duke, PhD-Harvard, JD-Stanford), the "W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law" at the University of Texas School of Law, author of over 200 articles in professional and more popular journals, co-author of a leading constitutional law casebook, who's also been a visiting law prof at Harvard, Yale, NYU, and BU. This would be the same Sandy Levinson quoted in today's WaPo as saying of Harriet Miers (emphasis mine): "The only thing to infer from this [case] is that she's a good lawyer." Because how'd she do? As Prof. Levinson's gracious comment suggests, she did pretty well: She beat Prof. Levinson like a drum, not once, but three times on this case — in federal district court, then in the Fifth Circuit, then on the certiorari petition in the U.S. Supreme Court.

This, by the way, is only one of three of Ms. Miers' reported appellate cases that included constitutional law issues. But I don't know how you guys have gotten the notion that "constitutional law" is tougher than brain surgery and rocket science combined. I guarantee you that there are aspects of tax law and securities law and contract law and tort law and a dozen other legal specialties that are every bit as difficult as constitutional law. The cases on those subjects that top courtroom lawyers regularly argue, and that federal courts (including the Supreme Court) regularly decide (with more frequency than they address pure con-law subjects), are every bit as intellectually challenging.

Moreover, any nominee could be tripped up by some senator who's pulled one book at random from among the 530-plus volumes of United States Reports, flipped it open to a random page, and asked: "What about the Supreme Court's holding in 1930 in the case of Hopkins v. Bacon? Do you agree or disagree with that case's analysis of the proper treatment under the federal income tax code of a spouse's interest in income received by the community estate in Texas, as opposed to California or Arizona?" I suspect that John Roberts would no more have known how to answer that question than Harriet Miers would have. Senators who are simply trying to play "gotcha" will be recognized as doing that — and it is they who will be mocked, not Ms. Miers. There is a reason that lawyers — including lawyers who are Justices on the Supreme Court — have online and hard-copy law libraries (with elaborate systems of indices and digests and cross-referencing): It's because we look stuff up when we need it, because there's too much of it for any of us to carry around in our heads.

Ms. Miers' own constitutional law professor still remembers her — after almost 40 years! — and has been quoted as saying she was an "excellent student" who was "very well prepared." Professors, colleagues, opponents, judges, and clients (including one nicknamed "Dubya") all seem to believe that she has the intellectual chops. It seems to be only in the minds of her nomination's opponents that she's chopped liver.

That WaPo article, although inaptly headlined, is a nice piece of reporting and well worth reading for anyone interested in Ms. Miers' record as a practicing lawyer. Also worth a look for its original reporting is this AP article. (It does contain one obvious mistake, perhaps introduced in editing, when it says "[i]n private practice with [Locke Purnell] and its successors, she was the counsel of record for only about 20 cases." That's about right for reported cases, which are only those producing a formal written opinion from the judge that he/she has in turn designated for widespread publication, which tends to happen mostly with appellate decisions and a very few federal trial court decisions. But I'd bet a randomly chosen body part that she's been "counsel of record" — that is, among lawyers who've entered a formal appearance with the trial or appellate court — in hundreds of cases over her career.) The AP article reveals, for example, that what I'd previously thought was one of Ms. Miers' rare losses — the Microsoft class action case — actually turned into a win: After losing an interlocutory appeal, Ms. Miers nevertheless persuaded the trial judge who'd earlier ruled against Microsoft to reverse herself and de-certify the class. Do you have any idea how hard it is, in general, to persuade a trial judge who's already been affirmed on appeal on a particular point to reverse herself?

And note in particular in both articles how many of Ms. Miers' defeated opponents from the courtroom, in addition to Prof. Levinson, also had complimentary things to say about her. I hope that the critics of Ms. Miers' nomination from the political Right will be equally as gracious after she becomes Justice Miers, but I'm certain she will be gracious to and about them.

Professor Kingsfield and the Miers confirmation hearings

I have this impression that those predicting that Harriet Miers will absolutely, positively crash and burn during her Senate confirmation hearings — under brutal questioning from the likes of Slow Joe Biden or any other member of the Judiciary Committee — themselves have in mind that scene in The Paper Chase in which Prof. Kingsfield (fabulously played by John Houseman) said, "Mistah Haaaaaht! Here is a dime! Go and telephone your mah-ther, and tell her that there is ... substantial ... doubt-(tah!) ... about your eh-vahh! ... becoming! ... a laaaah-yah!"

I don't think that will happen. For one thing, not one of the senators likely to be firing off hostile questions to Ms. Miers has a tenth of the dignity and aplomb that John Houseman had as the fictional (but entirely realistic) Professor Kingsfield.

But if it happens, I hope that Ms. Miers will have the panache to say something like, "You ... are a SON OF A BITCH, Sen. Schumer!"

All America will agree, but I seriously doubt that Sen. Schumer will have the presence of mind or the grace to say in response: "Ms. Miers! That is the most ... intelligent ... thing you've said all day!"

But no. Ms. Miers will almost certainly be far more restrained, and far less cinematic. Still, if she has even a bit of a flair for drama, she might come up with something equally as good, or better, as the Timothy Bottoms character, James T. Hart, shot back at Professor Kingsfield. After all, if she chooses to serve up charges against the opposing senators along the lines that Mr. Hart did against Professor Kingsfield — the truth will be on her side.

National Review abandons any pretense of neutrality, open-mindedness on Miers nomination

One can't plausibly claim to be surprised when an online or on-dead-trees magazine specializing in political opinions and punditry takes a definitive position and advocates it. So I don't suppose I'm surprised to see the venerable National Review present an online "Petition for the Withdrawal of the Nomination of Harriet Miers to the U.S. Supreme Court."

But here's my point, in one sentence (followed of course by many, many others, as is my wont): I don't condemn NR/NRO for putting up this petition, but I genuinely lament what it says about the nature of their further participation in the debate.

*********

This isn't an informal internet straw poll of the sort that InstaPundit and Prof. Bainbridge have posted. This isn't a method for NR and NRO readers to present their positions — pro, con, or neutral — to the Administration. Rather, this petition very directly requires its signers to declare, as their bases for the demanded withdrawal of her nomination, that Harriet Miers is NOT —

• "a person of clear, consistent, and unashamed conservative judicial philosophy";

• "a person of unquestioned personal and political independence";

• "someone who has demonstrated a deep engagement in the constitutional issues that regularly come before the Supreme Court — and an appreciation of the originalist perspective on those issues"; nor

• "a person of the highest standard of intellectual and legal excellence."

(The words "hack," "dullard," "corrupt," "crony," and "squish" don't appear, but they do shout rather loudly from the subtext, at least as I interpret it.)

To submit one's constructive (i.e., online) signature, one must provide a valid email address, and one's first name, middle initial, and last name. One must also "acknowledge" that "the information submitted here is entirely accurate to the best of [the signer's] knowledge without any withholding or embellishment of the truth" — which I interpret to refer to the "information" purportedly about Ms. Miers, since it would be rather hard to "[embellish] the truth" of one's email address or name. I don't know why they don't just go ahead and ask you to swear, on penalty of perjury, that you really, really believe this is a horrible nomination and nominee.

You have a binary choice:  Either endorse each and every one of this petition's propositions, collectively and without reservation — or close your browser window on it. (I chose the latter.)

The petition is stated to be the handiwork of NR contributing editor, NRO diarist/blogger, newspaper columnist, and former White House speechwriter David Frum, with input from others. But Mr. Frum's diary post directing readers to the petition speaks repeatedly of "we," with no subset short of the entirety of National Review being indicated. One grants to "National Review," for example — not Mr. Frum personally, nor any special- and limited-purpose group —  the "right to use the information submitted here" to "verify [each signer's] identity." NRO editor (and NR associate editor) Kathryn Jean Lopez has linked the petition from their "Bench Memos" blog, under the heading "Harriet Miers Petition" and with this brief text entry: "David Frum has one up." She does not suggest, however, that he speaks only for himself, or for less than the entire institution. If this is not intended as an editorial position of both NRO and NR, there is no obvious way to divine any limitation. (Although fairly imputable on these facts to the institution, however, I don't think this petition may fairly be imputed individually to all NR/NRO contributors.)

*********

Before commenting directly on this petition, I have important caveats that I want to make absolutely clear. That which follows is more than a rote assertion:

Before the Miers nomination, I respected and admired the National Review, both its online and on-dead-trees versions, and its various contributors. I've frequently agreed, and sometimes disagreed very strongly, with their various positions and those taken by the publication as a whole. But I've subscribed, and I've read, and I've linked — all regularly. I will continue to do so. I still respect and admire NR/NRO, my current large disagreement over the Miers nomination notwithstanding. I do not question their patriotism, nor their credentials as conservatives of good will, passion, and intellect. I have no doubt whatsoever that in the future, I will again agree, and sometimes also disagree, with other positions taken by NR/NRO as an institution, and other positions taken individually by various of its contributors. If they'd ever come to Houston (an excellent idea, given that Rich Lowry didn't know until two weeks ago that Houston's the fourth largest city in the country), I'd gladly buy a round of drinks for the whole gang, and two for Mr. Frum. (Sour apple martinis for him, though. (That's a joke, David, I'm smiling as I write it.)) I do not condemn them; I do not call on any subscribers to cancel their subscriptions, nor on anyone to email K-Lo or Frum or anyone else there to express reservations or outrage over the petition.

And I most emphatically am not going to try to start up a counter-petition! I hate public opinion polls; and amateur versions are worse in general than the ones the real whores trained professionals create. My considered and consistent view is that I've already voted on this — in a fashion vastly more solemn and meaningful, albeit indirect — when I cast my votes for President Bush and for Texas' two senators, Kay Bailey Hutchinson and John Cornyn. If I sense any of them waivering, or have any particular input that I think they need and otherwise lack, I know how to reach them.

I also do not hold to the view that anyone outside the Administration has a duty to "shut up and go along with the President" — not pundits, not ex-WH staffers, not the members of the public, and not the Senators who have a constitutional role to provide (or withhold) advice and consent. I am not arguing against debate; I am not arguing against skepticism. From what I know now about the nominee, I believe she ought to be confirmed. But I know there are known unknowns about her, and probably some unknown unknowns too, in the words of my favorite metaphysical Defense Secretary.

Nor do I think it's productive for either side to make threats or to predict dire consequences. I do not, for example, shout, "How dare they!" when the petition warns that "[a]n attempt to push her nomination through the Senate will only split the Republican party, damage the Bush presidency, and cast doubts upon the Court itself." Maybe it will, maybe it won't. I really, really didn't want the people at National Lampoon to kill that dog, either; but I didn't buy that magazine and yet, as as far as I know, the dog survived. Seeing which side can lay a better guilt trip on the other contributes nothing productive to getting an appropriate replacement for Sandra Day O'Connor confirmed, whether that turns out to be Ms. Miers or not. Shaking our spears and rattles at each other and screaming "Terrible consequences! High stakes!" just makes everyone's blood pressure go up to no good purpose. And in fact, my new resolution (as of late today) is that if I think someone's guilty of improvident blood pressure elevating, I'll tell them so by email rather than by blogging, and if they ignore that, then I'll ignore the fact that they've ignored it, and proceed to ignore the attempted guilt-tripping.

*********

Having said and meant all of that, however:

While I'm unsurprised by this petition, I still deeply regret seeing it. Harriet Miers has yet to give a word of testimony at her confirmation hearing. Her paper trail is still being assembled and combed. Additional facts pertaining to her qualifications are still pouring in — this White House having no more done a complete job of gathering all of those facts, predigesting, and regurgitating them simultaneously with her nomination than it did with John Roberts', or than any White House has ever done with any SCOTUS nomination.

By no means have NRO or NR been the only skeptics or critics of Ms. Miers' nomination. But they were among the first. They were among the most factually inaccurate (a black eye that will take a while to heal, I fear). They have been among the most influential. To varying degrees depending on whom one reads, they continue to be among the most vehement. And now it appears that institutionally, they're in the biggest hurry both to commit themselves, and to get other people on record against this nominee.

Why? Why the incredible hurry? Anyone capable of finding this petition online is certainly capable of finding his or her way to the White House's website, or to his or her senators' websites. Any of their readers who are in a hurry need not wait to have a say through other means.

And why the one-sided slant — a petition that permits only one set of opinions, and those being pre-dialed up to eleven? Surely as seasoned political advocates, they understand that their results would be far more credible if they weren't pre-channeled in only one direction. Let's say they get 50,000 "signers," or 100,000, or 1,000,000. What's the obvious, inevitable response going to be when Mr. Frum carries the boxes of printouts (or the CD-ROM, whatever) over to the the White House to thrust it into Dubya's (or more likely, Andy Card's) face?

"Well [cough-cough], David [cough], it's good to see you again, and this is very interesting — but we had just over 62 million votes in the last election, and 78 Senators voting 'Aye' on the last nominee. So thanks, we'll consider this carefully [cough-cough], for exactly what it's worth. Hey, how's that golf game coming along?"

Yet in the meantime, if you had any doubt whatsoever that Mr. Frum and (we must presume) those among the NR brass who've authorized this petition have any objectivity, or even the barest hint of an open mind left, with respect to this nomination — that's gone now. And that's a genuine shame, because there are a lot of smart folks there whose voices have now been rendered much, much less relevant.

Move over, NARAL, and grab your earplugs, 'cause you've now got some noisy company in that bed. This petition doesn't mean they're bad, or even that they're wrong, it just means they've made up their minds and ... closed 'em.

-------------------------------------

UPDATE (Thu Oct 13 @ 9:15am): Yup, Mr. Frum's petition is now linked from The Corner, too. The Institution has taken a stand, for better or worse. "Want to be heard?" asks K-Lo in the title. Oh yeah. Hear me roar (provided I am anti and over the top with it).

-------------------------------------

UPDATE (Fri Oct 14 @ 3:30am): K-Lo clarifies:

I've gotten some question re: whether the petition David Frum has created is officially endorsed by NRO. I think it's fair to say a good number of us agree with the principles outlined. It's David's petition though, no official NR/NRO thing. What's the difference, you ask? David, Joe Schmo, Kathryn, whoever, write things on NRO (or in NROdT) all the time which do not represent a corporate position. I'd take the petition in the same spirit. Whether NRO writers want to sign up is up to them.

I'll take this at exactly face value, but I also note that as a disclaimer of institutional commitment it's late, weak, and not very prominent. One would think that if the poll is indeed just "David's petition," it would say that on the petition webpage itself, for instance, simply in the interest of accuracy. As of this moment, the petition web page itself has been slightly modified to delete its original optional pull-down menu field that offered several choices, somewhat oddly worded, to permit signers to indicate if they are lawyers or in related fields. What looks at first glance to be an automated counter, presently reading "2,160 and counting," actually isn't automated but just regular .html text that will need to be manually updated. I'm not sure when it was last edited, and so will withhold comment other than to say that it at least looks to be running behind the response rate on Prof. Reynolds' straw poll — presently almost 14,000 votes, with 54 percent favoring withdrawal and 46 percent opposing it. (Even that response rate is fairly underwhelming, given Prof. Reynolds' typical six-figure daily page-views rate.)

A few readers have taken me to task in the comments to this post for an ostensible double-standard: How dare I fulminate against NR/NRO for advocating a position, when I'm also taking a position? To which I say: First, re-read the first two paragraphs of this post, particularly the first sentence. Second, my blog is a solo effort, and no question of "institutional" endorsement arises. And third and most important, I'm doing my best to keep an open mind myself, despite my biases and my current position (all disclosed as carefully as I can), because I believe there is a lot of relevant information yet to be gathered and distributed, and also because I strongly suspect that some of what's currently floating around is inaccurate or being spun wildly out of context. The point of Mr. Frum's petition, by contrast, is to summarily end the nomination immediately, before the nominee has had any public opportunity to respond; the petition does not seek to push the nomination toward an eventual ultimate rejection, but rather to push it immediately off a cliff. I therefore deny that I'm using a double-standard. But as always, gentle readers, you're entitled to reach the opposite conclusion; and I did provide a link to Mr. Frum's petition in case you'd like to add your voices to his and his NR/NRO allies in urging that Ms. Miers' voice in support of herself and her nomination be prematurely, permanently silenced.

Miers' campaign contributions to Gore and Bentsen

For the primary benefit of my out-of-state readers: Eloquent and politically knowledgeable left-of-center Houston blogger Charles Kuffner, despite being a skeptic of Harriet Miers' nomination to the Supreme Court, absolutely nails those on the right who're all aflutter about Ms. Miers' 1988 contributions, presumably made as a sober, mature woman, to Democrats Al Gore and Lloyd Bentsen (links in original, boldface mine):

Listen to me closely, because I'm just going to say this once: Rick Perry, our beloved-by-the-conservative-base Governor, a man for whom anyone who is anyone in the Republican Party was doing their level best a few months ago to persuade Kay Bailey Hutchison to stay away from [in] next year's gubernatorial primary, was the Texas state chairman of Al Gore's 1988 presidential bid. He was 38 years old at the time (how sober he may have been is a question I am unable to answer adequately). I'll freely admit we know a lot more about what Rick Perry stands for than we do about Ms. Miers, though there's a pretty simple way to resolve that particular conundrum. My point is just that Texas was a very different place in 1988 than it is today. If you don't understand that, you should probably yield to someone who does.

(For extra credit, buy yourself a copy of Fifty Years of the Texas Observer and read about what the liberal wing of the Texas Democratic Party thought of Lloyd Bentsen in 1970, when he successfully ousted progressive hero Ralph Yarborough in the primary.)

Ayup. What he said. And to save you the cost of the Observer, the liberal wing thought Bentsen was a fascist tool of the banking and insurance industries. The broader story it tells over the last fifty years is how conservatives and liberal/progressives, nominally Democrats all, have battled tooth and nail through the decades when Texas was an overwhelmingly one-party (i.e., Democrat-only) state. It is a great story, albeit a politically (and sometimes literally) violent one. Just remember that this is a state in which Lyndon Baines Johnson — who was probably the most wickedly gifted and giftedly wicked natural politician of the Twentieth Century on the national stage — was considered to have only average intra-state political skills for much of his career.

Miers and the Texas Lottery: One riot, one ranger

On NRO's The Corner, John J. Miller posted this today under the heading "Call Her The Gambler" (hyperlinks in original):

Hugh Hewitt has now criticized me twice (at least) for raising a simple question earlier this week: Why aren’t evangelicals more concerned about the fact that Harriet Miers ran the Texas lottery? Memo to HH: Of course I recognize that evangelicals make up a diverse group with varied opinions on the merits and morals of gambling. But a large number of them also oppose it passionately. Earlier this year, Jim Dobson, Chuck Colson, and more than 200 other religious leaders signed an open letter that called gambling a “menace to our national welfare." Well, what’s the Texas lottery if not state-sponsored gambling? (Go here for more evangelical perspectives on lotteries.) Miers’ public record is thin, but the Texas lottery is part of it. Perhaps she disagrees with Dobson and other evangelical leaders on whether governments should be in the gambling business. Perhaps she even took the lottery job, as Hewitt suggests, “with the aim of improving it” (whatever that means). I would certainly like to know more. I just wish Hewitt didn’t consider the question inconvenient.

Of course, this drips with the implication, intended or not, that there's something hypocritical about not only "evangelicals," but also Ms. Miers. But let's give Mr. Miller credit, and presume that he wasn't trying to frame a "when'd ya stop beating your wife" question. (If he was, I hope to show that it didn't work.) I can't speak for Hugh, nor for Ms. Miers, nor for evangelicals — but I think there's an extremely obvious and plausible answer.

Long, familiar story told very short: The creation of the Texas Lottery was indeed controversial — and not just among evangelicals. Of course some of the opposition was based on religious views, but there were also substantial objections that had nothing directly to do with religion or even morality. Ultimately, however, the proponents of the proposed lottery — and especially those who argued that Texans were playing other states' lotteries anyway, enriching those states with revenue streams that ought to be used for noble purposes within Texas — carried the day. For good or for ill, the people spoke through their elected officials, and the Texas Lottery came into being. Some future Texas Legislature may change or abolish it, but since well before George W. Bush took office as Governor of Texas, the Texas Lottery has been a fait accompli.

And while one may argue whether its performance has lived up to expectations, no one can doubt that the Texas Lottery has indeed become an important source of public revenues in this state. According to its website, of every $1.00 received by the Texas Lottery: 58¢ goes back out in prize money, 7¢ goes to lottery administration, and 5¢ goes to the retailers who sell the tickets. That means that 30¢ of every $1.00 goes to the Texas Foundation School Fund:

The Texas Lottery has contributed more than $7 billion to the Foundation School Fund! The Texas Education Agency administers the Fund, which is used for school districts' public education services at the local level.

That $7 billion is the biggest part of the more than $12 billion in revenue the Texas Lottery has generated for Texas since the first lottery ticket was sold in May 1992. Lottery revenues have gone to the Foundation School Fund since September 1, 1997, as directed by the State Legislature. Prior to that date, they were allocated to the General Revenue Fund.

Unclaimed lottery prize funds revert to the State to be appropriated for health care, medical education, and other programs authorized by the state legislature.

Again, to grossly oversimplify: We're still fighting tooth and nail about public school finance issues in Texas, and we have been for decades now. But regardless of whether one approved of the Texas Lottery's creation or approves of its continued operation, and regardless of whether one wishes to support it by buying tickets, the revenue stream from the Texas Lottery — and that revenue stream's importance to Texas governance and in particular to public education in Texas — cannot be ignored by whoever sits in the Governor's Mansion in Austin.

By the time George W. Bush became Governor, serious problems had arisen inside then-still-young Texas Lottery. There were, at a minimum, serious appearances of impropriety and incompetence that neither he nor any other Governor of Texas could ignore. Dubya needed a trouble-shooter, a fix-it person — someone in whom he had boundless confidence as to both her effectiveness and her integrity. In the grand Texas tradition of "one riot, one ranger," he asked Harriet Miers to do that ugly, vital job.

What went through her mind when he asked? I don't know; perhaps we'll learn something of that during her confirmation hearings. But my strong hunch is that her first reaction was intensely negative.

Let's again put religion and morality and ethics completely aside for a moment: The Texas Lottery, and any lottery, is a sucker's play from a purely mathematical standpoint. Lotteries have aptly been called a tax on morons, voluntarily and eagerly assumed by them. Oh yes, courtroom lawyers are gamblers by nature, and we have to be. But to the extent that the gambling metaphor fits our professional activities (and it does fit, reasonably well), we're poker players, friends and neighbors, and we're committed to the notion that by vigorously and creatively representing our clients within the bounds of law and ethics, we can reduce randomness and, perhaps sometimes, beat the odds through skill and preparation. Personally, I've never spent a single thin dime on the Texas Lottery, and I never will.

Nor was taking a position at the head of the Lottery Commission a résumé credential for someone who'd already progressed along Harriet Miers' career path. (Indeed, her critics scoff at it now.) It was, at best, a sidestep, and one fraught with huge risks if she failed — risks that could have ended not just her work at the Lottery, but for all practical purposes her entire professional career.

And finally, if we do make some reasonable assumptions about Ms. Miers' faith and how it might affect her views of the Texas Lottery: Her reflexive shudder upon being asked to take up this particular task may have been long and profound indeed. This will strike you as either corny or self-evident for me to say, but I'm quite sure that she prayed about it. And it wouldn't surprise me if she and Dubya prayed together about it.

But the consistent, dominant theme of Harriet Miers' life has been service: Service to her family, her church, her community, her law firm, her profession, and to her clients (both paying and pro bono). George W. Bush gave her the opportunity for service to the State of Texas and its Governor. Recall that she has shown personal courage, and dedication to principle despite swift countercurrents, when she fought to return the American Bar Association to its original apolitical status as a service organization — even though to do so, she had to risk being identified unfairly (as is now in fact happening) with the modern, politicized ABA's pro-abortion agenda.

The Texas Lottery was going to go forward no matter her answer; the only question was, on a going-forward basis, would it be (and appear to be) competent and clean (at least as much as a state-run lottery can be), or would it be (or appear to be) incompetent and corrupt? So when Dubya asked, what ultimately happened was that Harriet Miers apparently gulped down any reservations she may have had, and then she saluted. (Not a mindless robotic salute; a knowing and dutiful salute.) She took the job, she rolled up her sleeves, she started digging, she started applying her fact-gathering and management skills, and then she started taking names and kicking butt. (The name-taking was quite literal; the butt-kicking was metaphorical, but nevertheless no doubt quite impressive to those who found themselves suddenly and dramatically unemployed.)

Some pundits are muttering ominously and self-importantly about imminent "surprises" having to do with Ms. Miers' involvement with the Texas Lottery which they say are about to break into the public consciousness. Well, okay; maybe. Color me very skeptical, because anything that could be used to discredit Ms. Miers could also have been used to discredit Dubya, and there's been no shortage of people down here in Texas looking for ways to discredit Dubya for the last decade or more. (Think Ben Barnes and Mary Mapes and you'll only have scratched the surface. The whole Ben Barnes/TANG story began in civil litigation over Texas Lottery problems. One wonders who may be out scouting for late 1990s-era word processing software and printers even as you read this.) So we'll see what happens. But from my viewpoint as a Texan today, on the most elemental, macroscopic level, Harriet Miers' service with the Texas Lottery can be boiled down to this: (a) Broken before she went there, and (b) Fixed when she left. Oh, sure, she had some help, as I know she'd be the first to insist. But still, in the big picture: One riot, one ranger; then no more riot.

(This, of course, is bound to become the subject of smug tittering like her service to the Bush-43 Administration, and thereby the Nation, as White House Staff Secretary. "Oh, she not only served coffee at the White House, she cleaned house back in Texas!" No good deed goes unpunished, it seems, nor great deed unmocked.)

Regardless of what you, she, or any of them think about the ethical and moral and religious implications of the Texas Lottery, Mr. Miller, evangelicals and other fair-minded people aren't more concerned about the fact that Harriet Miers ran the Texas Lottery because they recognize that it was critically important to the State of Texas — to its Governor, its legislators, its citizens, and especially to its children — that someone brave, competent, and responsible step up to fix its problems. She was (indeed, she still is) — and so she did.

The single best criticism of the Miers nomination

Life tenure is, of course, the proverbial double-edged sword. But certainly an acknowledged strategy of Presidents from both parties has been to pick Justices who are young enough to reasonably be expected to spend many years on the Supreme Court — a "force multiplier" of a sort, each such pick still casting but one vote, yet casting votes for year upon year. And at 60, Ms. Miers is almost a decade older than the newly confirmed Chief Justice.

Initial criticisms from the right about Ms. Miers' age have almost disappeared, however, as her opponents have realized that it's a criticism that can only stick if one first accepts as a premise that Ms. Miers' votes over her likely career will be to one's liking. That is a premise they've spat back out. Indeed, Ms. Miers' age and actuarial likelihood of a shorter tenure undercuts their arguments across the board and, in particular, their arguments that Justices tend to drift to the left the longer they're on the bench and the farther removed they are from their "roots." It's likewise a bit unseemly for Ms. Miers' supporters to argue that, as a more mature nominee, she's unlikely to be as impressionable and subject to persuasion from the left as some younger potential nominees. (Unseemly — but valid.)

It's not directly on point, since it was from a contest involving two particular combatants — and Ms. Miers, to her misfortune, is compared against every other potential nominee whom her critics would rather have seen get the nod (including some who certainly would have been aggressively filibustered, and at least some of those probably successfully) — but I can't help recalling this wonderful bit from the second 1984 Presidential Debate:

MODERATOR: Mr. Trewhitt, your question to President Reagan?

REPORTER: Mr. President, I want to raise an issue that I think has been lurking out there for two or three weeks, and cast it specifically in national security terms. You already are the oldest President in history, and some of your staff say you were tired after your most recent encounter with Mr. Mondale. I recall, yes, that President Kennedy, who had to go for days on end with very little sleep during the Cuba missile crisis. Is there any doubt in your mind that you would be able to function in such circumstances?

REAGAN: Not at all, Mr. Trewhitt and I want you to know that also I will not make age an issue of this campaign. I am not going to exploit for political purposes my opponent's youth and inexperience. If I still have time, I might add, Mr. Trewhitt, I might add that it was Seneca or it was Cicero, I don't know which, that said if it was not for the elders correcting the mistakes of the young, there would be no state.

This was "vintage" Gipper, of course. But this quip essentially ended President Reagan's age as in issue in that election. And while the age of a potential nominee may indeed be relevant in selecting among many candidates, once that candidate has been nominated, then absent some unusual circumstance — "the nominee is on a respirator!" or "the nominee has just been diagnosed with a terminal disease!" — it ought to basically drop out of the confirmation discussion.

Miers and board certification

In a recent comment, reader Lgl asked:

[W]ith all her experience, why isn't [Ms. Miers] board-certified in civil trial law? (for that matter, why isn't Beldar?)

That's a fair question — or actually, two fair questions — and they're questions that merit not just an answer in comments, but a post of their own.

*********

In 1974, Texas was among the first states to adopt and begin the multi-year process of implementing a comprehensive system of "board certification" procedures in a variety of practice specialties. This system is analogous in many respects to the national board certifications available to physicians in various practice areas, and there have been some attempts to set up a similarly national system for lawyers, but no comprehensive national program that includes all of the major practice areas has yet caught on in a big way.

The State Bar of Texas and the Texas Supreme Court were, and remain, very appropriately involved in the Texas program. But the actual certification process is controlled by a distinct body, the Texas Board of Legal Specialization.

As with physicians and their national certification program, lawyers in Texas need not be board certified in order to practice as a general matter, nor in order to undertake any particular types of cases or matters. There are, however, some fairly general ethical provisions that caution lawyers not to undertake matters for which they're unqualified without taking reasonable steps to gain those qualifications. Doctors who are not certified may legally hold themselves out as specialists anyway, at least in most states. But there are very strict ethical regulations in Texas that restrict the ability of lawyers who are not certified to claim or imply that they are specialists; these have the force of law, and violating them can result in sanctions up to and including suspension or loss of license. Indeed, in something noticed by most Texans who are barraged by lawyer advertising, but that is unfortunately probably poorly understood by most consumers, Texas lawyers who aren't board certified — which continues to be the vast numerical majority of the practicing Texas bar — are required to include a disclaimer along the specific lines of "Not Certified by the Texas Board of Legal Specialization" in any advertising they may do, even if that advertising neither claims nor implies any specialized expertise.

I support the TBLS and the specialization program, not (as some lawyers do) out of a desire to avoid  having to make the advertising disclaimers, but because I believe it's an appropriate and useful thing for the profession to do to promote professionalism and excellence within its ranks on a long-term basis. I don't think the program has been entirely successful in its attempts to educate and inform the public or to help them in finding and choosing among lawyers, but neither has it been entirely unsuccessful, either, and supporting the program continues to be an effort worth making for those reasons too.

I don't believe anyone was "grandfathered in" when the system was created. The expectation was that rather than effecting some instant transformation of the profession, it would instead take a matter of decades, not merely years, before the system reached "equilibrium" and become fully established and effective. In the three decades since, the system has made good progress toward that, although less than I'd like to have seen. Evolution of the system has not been perfect, especially as there have been some compromises to reflect some rivalries within the bar. The partially overlapping certifications for "civil trial law" and "personal injury trial law," for example, reflect early and perhaps lingering concerns of plaintiffs' personal injury practitioners that other courtroom lawyers, and in particular those who practice mostly on the defense side in personal injury cases, would somehow dominate to their disadvantage. Nevertheless, while still a work in progress, the Texas board certification program is a useful model that I wish more states would follow.

*********

Speaking for myself: I applied for, took the tests for, and was awarded certifications in both civil trial law and personal injury trial law from the Texas Board of Legal Specialization in 1986 or 1987, as soon as I became eligible based on the then-existing years-in-practice requirements. (I already had the required number of first-chair trials, references and recommendations, continuing legal education hours, and so forth, and I met all the other prerequisites.) I maintained both certifications for several years. But during the late 1990s, at a time when I was in solo practice, I decided for a variety of personal rather than professional reasons not to continue paying the required annual fees, and I allowed both certifications to lapse. That was without question the most short-sighted professional decision I've ever made in my career, and one I've regretted continuously thereafter. After extended polite discussions with the Board, I've now resolved to seek recertification — probably only in civil trial law this time — and although preparation even for recertification is a multi-year process, my expectation is that I will file the application, again undergo the professional vetting, and ultimately re-take the certification test during the 2006 cycle. In the meantime, I do not make reference to my having once been "board certified" in any public list of qualifications and credentials because I believe it would be unethical to do so without simultaneously disclosing (as I have here) that I let the certifications lapse — and that gets me into long (and concededly embarrassing, because of my foolishness) explanations like this one.

*********

According to the TBLS' online database, Ms. Miers isn't currently board certified in any specialty area. I can't speak for Ms. Miers, nor give any definite answer as to why she is not board certified, but I will make these general comments that might or might not explain her situation:

The certification process is (and should be) very arduous. The eligibility requirements, although varying according to specialty, are (and should be) quite stiff. Simply gathering the necessary historical factual data to complete the exhaustive application took me a couple of weeks of full-time effort before I first applied. (I'm reasonably confident, however, that Ms. Miers' experience would meet the eligibility requirements for civil trial law, the specialization that probably most closely corresponds to her practice.) The day-long examination is (and, again, should be) comparably difficult in some rough measure to the bar examination; I spent several more weeks preparing for it (or actually, "them," as there were separate tests for the two certifications I obtained). The continuing legal education requirements, both before applying and after being certified, are higher than the mandatory minimums for other Texas practitioners. And certified practitioners must pay non-trivial initial and continuing annual fees, through which the program is entirely funded.

A few lawyers actually prefer to be known as "generalists"; some offer that up as a reason for not seeking certification, although I personally don't much credit that reasoning. Still, many lawyers who strongly support the concept of board certification and the goals of the TBLS, and who also meet the eligibility requirements, have nevertheless decided, for whatever reasons, not to seek certification. Or perhaps it's more accurate to say they've never made the affirmative decision to seek, and undertaken the rigorous paths to obtain, board certification. For lawyers who do not advertise or plan to advertise — and especially for well-established lawyers who already have all the work that they personally can handle — the personal cost-benefit analysis is quite different than otherwise.

Any knowledgeable Texas practitioner will tell you, however, that there are a great many superb Texas lawyers in each of the fields for which specialization certifications are available who, for these or similar reasons, have never chosen to apply for board certification. I'm confident that Ms. Miers, like most Texas lawyers, would agree that board certification is a fine credential to have. But particularly given her other commitments on behalf of clients, profession, and public, and her age and the level of success of her career by the time the ball toward board certification really got rolling, I personally do not fault her for lacking this particular credential.

The relevance to her SCOTUS nomination of Miers' credentials as a large law firm's managing partner

In prior posts, and moreso in comments to them, I've touched on (and sometimes debated) the importance of Harriet Miers' experience as managing partner of Locke Purnell and then, post-merger, as co-managing partner of Locke Liddell & Sapp. This post collects my thinking on that into one place.

Being chosen as a large law firm's managing partner, and being successful in that role once chosen, reflects certain useful management skills, as the title implies. More specifically, running a law firm is a lot like herding cats. And not housecats, but lions — a "pride" of lions, I believe they call it. Hungry, dangerous, big cats with bigger egos and sharp claws and teeth, plus the ability, and the incentive when they perceive themselves slighted, to drag off into another part of the jungle their own recent kills along with their protegés and subordinates. Dealing with partner-level lawyers requires tact, creativity, flexibility, judgment, listening and communication skills, the learned or intuitive ability to broker compromises, and finally (but not least importantly) a backbone of steel and the ability to display and occasionally use one's own teeth and claws. The "people skills" expected of a managing partner, while perhaps particularly important for a Chief Justice in the context of the Supreme Court, are not unimportant for other Justices. The Chief Justice, simply put, has but one vote, and he is not always himself in the majority.

Beyond "people skills," though, having managed a large law firm vouchsafes that someone has the important perspectives and experiences that come from running a business. Being chosen by one's partners for this role reflects in part their judgment as to one's business acumen and common sense, independent from one's expertise as a legal scholar-practitioner. In many ways, running a large institutional law firm, with offices in several cities and a large nonlawyer support staff, can be like running a medium-sized business corporation. It's not General Electric, but neither is it a mom-and-pop drugstore. It takes people skills to split the pie among partners; but it takes business skills to ensure that there's a pie to split, and to grow and expand it. That Ms. Miers may bring to the Court the instincts and perspectives from "middle America" and from the world of commerce generally is, I think, a very encouraging thing.

But finally, and in my mind perhaps most significantly, there is indeed a strong positive correlation between being chosen as a managing partner and being professionally respected by one's partners, peers at the bar and bench, clients, and community. Someone suggested earlier in my comments that it's common for managing partners to be chosen based solely on their business ability. That's just nonsense.  Business ability is useful, but large law firms can and do hire highly sophisticated, valued, and well-trained and -paid professional managers — accountants, marketers, recruiters, human resource specialists, information technologists and librarians, premises managers, etc. — who are nonlawyers. Yet large institutional law firms are uniformly run by their lawyers, and their lawyers almost inevitably pick someone to lead them who has substantial intellectual power and practice accomplishments along with the other essential talents.

That has been the case at every large law firm at which I've practiced. For example, Bill Harvin and Bill Barnett, the two successive managing partners during the years I was at Baker Botts, were among the most highly regarded adversary practice lawyers at that very fine firm; they were beloved, respected, and a little bit feared. The notion that Baker Botts' lawyers would choose to be led by a legal mediocrity, regardless of his or her business talents, would simply be too funny for words to anyone remotely familiar with that firm. Likewise, Weil Gotshal's managing partner when I was there, Ira Millstein, was a nationally famous business adviser, confidante of CEOs, and trouble-shooter to whom Fortune-100 companies' boards of directors turned when in trouble — a respected antitrust lawyer who also became respected for his legal and practical judgments on matters entirely unrelated to antitrust as well.

Managing partners, to be successful, become not only the chief executives responsible for making decisions within their law firms, but those firms' spokesmen to their clients, competitors, and communities. They are entrusted by their partners not just with protecting their firms' reputations, which may date back decades or even more than a century, but also with guiding their firms' futures. Anyone who thinks this is a trivial credential or accomplishment doesn't understand much about law, lawyers, and law firms.

Most unlikely promise I've read on The Corner

JPod's title for this post: "A Final Word on Miers." Heck, it's only 10:35pm Eastern right now, I doubt it will be the final word tonight.

(Well, maybe JPod's final word tonight, if he's going to bed now. In which case I ask: Society guys like JPod go to bed in NYC at 10:35pm on a Saturday?!? Or maybe he's going "out." Yeah, that's the ticket.)

(But for the record, again, I don't endorse the Lindsey Graham "you oughta shut up" theory.)

My own biases and sources of passion on the Miers nomination

A pundit whose name you'd recognize, in a private email exchange, wrote to me that he thinks I'm very much personally invested in the Miers nomination. The truth of this statement became clear to me simultaneously with my startled realization about 4:00 p.m. this afternoon that the Texas-OU game had ended before I'd remembered it was being played. (Final score: 'Horns 45, Sooners 12 — Hook 'Em!)

It would be fair to say that the nomination and the controversy around it have driven me to distraction, sleeplessness, mania. I am indeed personally invested in it, and I ought to explain why, because you may conclude that it affects my credibility one way or another, and it certainly affects my objectivity despite my best efforts.

Among the things Ms. Miers and I have in common is that we've defended public companies accused of making inadequate disclosures. I claim that as a mitigating factor to explain why this post will run so long. But I'm a wordy cuss anyway.

I am reasonably certain that I've never actually met Harriet Miers. It's not unlikely that we've been in the same room together at some bar function or other, but I don't think we've ever spoken in person or even by telephone. I was aware of both the Locke Purnell firm and another fine Dallas firm that merged into it, Rain Harrell, while I was in law school; I quite possibly interviewed with one or both of them, and I'd certainly become better acquinted with them both by reputation when I was a summer clerk at one of their Dallas competitors, Thompson & Knight, in 1979. I likewise had been familiar for at least that long with Houston-based Liddell Sapp, the firm that merged with Locke Purnell under Harriet Miers' guidance much more recently to create Locke Liddell & Sapp.

During the first dozen years of my career when I was myself a big-firm lawyer, all of these firms were simultaneously comrades at the bar and competitors. My firms competed for the same clients and new-hire law students; our firms often represented codefendants and/or adversaries in lawsuits scattered throughout the state. Based on the size of these firms, there's no way I or anyone could know everyone on all of these firms' rosters, nor even everyone in the same practice area. But we all had mutual friends and acquaintances; and we knew of each others' rainmakers and general capabilities and reputations. Indeed, I was struck as I was reading through the published decisions from Ms. Miers' cases that I wrote about at such length yesterday just how many of them I recognized, recalled, and had had at least some remote connection to myself. I've had cases with or against, and in some cases worked at the same firms with, her opposing counsel in many of those cases. One of my professors was her opponent in one of those cases, and I was long ago the beneficiary of help from one of her law school professors.

In one of those opinions, I came across the name of a former Wall Street deal lawyer of considerable national prominence who'd later become an executive for, and as a result also been a witness for, Ms. Miers' client in that case. He was also the deal lawyer with whom I'd shared a common client, the General Electric Pension Trust, in the large lender liability case something over ten years ago that I described in another post this week. GEPT had been obliged to seek new counsel in that case when a potential conflict arose between it and two other institutional investors that I was also representing, and this same Wall Street lawyer had helped GEPT select Ms. Miers' firm, Locke Purnell, to take over its representation. One of Ms. Miers' partners there, a superb lawyer named John McElhaney, took over day to day responsibility for defending GEPT in the case, and it was John who I'd briefed for two or three days to get him up to speed, and then worked with as continuing counsel for these codefendants thereafter. Seeing the New York lawyer's name again, though, specifically in connection with Ms. Miers' case triggered a vague recollection that her name may have been listed along with John's on their firm's pleadings for GEPT, and if — as I'm now speculating, albeit on a very vague memory — Ms. Miers was the rainmaker who'd brought in the representation, it would not be atypical for her to mostly hand it off to a trusted senior partner to work up, with the representation being made to the client that she'd continue monitoring it and become more directly involved when and if the case got close to trial. So we may possibly have both technically been among counsel of record in that case. (Although it's not one I've seen her take any personal credit for in any published materials; and if she was involved at all, it would be just another among countless big cases that left only obscure footprints because her client's part of it settled pretrial.)

However, I'm pretty sure I never worked directly with Harriet Miers on that or any other specific case. I respect Locke Liddell, but certainly owe it no allegiance, and have no pending cases in which it is also involved at the moment. Nevertheless: I've known of Harriet Miers for many years, dating back to before her State Bar of Texas presidency. We almost certainly have dozens, perhaps hundreds, of common acquaintances. At one time we traveled in the same legal circles (although that's been much less true in the last dozen years or so, during which I've either practiced on my own or with small firms). I believe that I'd be appreciative of her career even had we practiced across the country from each other, instead of just across Texas. My comments and opinions about what an experienced courtroom lawyer and the managing partner of a large, successful law firm would bring to the Court would be the same regardless. But if she'd been from, say, Chicago or Phoenix or Seattle, I wouldn't be in a position of having so much personal knowledge of her specific career circumstances, and of course I'd sill still lack personal experience directly with her.

In other words, the same things that have put me into a position to comment knowledgeably and, I hope, credibly about her career may also may affect my objectivity. But they certainly explain much of the offense I've taken at criticisms of her that I thought were based on objectively false factual assertions (e.g., no law review experience) and what I also perceive to be many more some instances of unjustifiable opinions ('third-rate lawyer," "undistinguished firm," no big cases, etc.). For example, when I first read the nonsense that one of Rich Lowry's sources had fed him and that he innocently had republished — which then zipped from NRO's The Corner around the blogosphere in the first hours of the nomination, creating for many a first impression that's become very difficult to dispel — my jaw just hit the floor, and I'm sure I turned red in the face.

My reaction thus is in some ways similar to that which I had when another Texas lawyer with whom I was modestly acquainted, John O'Neill, suddenly hit the national spotlight last year. "Hey, I know him! I've cross-examined that guy!" was my first reaction. And then: "Hey! That's not fair, what they're saying about him. That's neither factually true nor even a rationally justifiable opinion!" And that led to my dozens and dozens of passionate posts — hopefully also with as much even-handedness as I could muster, but also subject to possible bias — about the SwiftVets. These were both people I knew to be good Texas lawyers getting a bad rap on a national stage. And I simply couldn't not speak out.

Furthermore, I'm also a long-time, undisguised fan of George W. Bush — one who's felt anything from mild to severe annoyance with him from time to time over issues big, small, and in between, but one who also on the whole still proudly supports him. I think he's gotten more things right, and especially more big things mostly right, than he's gotten wrong. I'm happy to disclose all that, and it's as important to consider in assessing my possible biases as it would be to consider biases from other conservatives or moderates who've become critical of the President pretty much across the board

You'd be entitled to conclude from all this: "Well, Beldar's unhinged."

I'll try not to take offense if you reach and express that conclusion. I'll forgive and honor almost any opinion contrary to my own, so long as you've gotten your underlying objective facts right.

And I once again remind myself — and those of you, my readers, who call yourselves conservatives — that we are not enemies, but friends; we must not become enemies; and we ought not blow the better angels of our natures out of the sky with 12-gauge shotgun blasts of overheated, hysterical, and scar-producing rhetoric.

The moving Miers goalposts; Bork, Barrabas, and elitism; and the soft, unconscious bigotry of limited imaginations

The title of this post is fair warning that this essay may tend to wander.

JPod promptly responded to my wee-small-hours post and my associated email to him about Harriet Miers' op-eds with his customary grace and wit — but in a way that nevertheless disappoints. Her op-eds read, he says, "like all 'Letters from the President' in all official publications — cheery and happy-talky and utterly inane."

Well, yeah. That's sorta because they were, indeed, "letters from the president" written for the bar journal. "They offer no reassurance that there is anything other than a perfectly functional but utterly ordinary intellect at work here." Well, yeah. But "perfectly functional intellect" is pretty much exactly what we want, and all anyone has any reason to expect, from a bar president writing in a bar journal; anyone's writing for United States Reports can reasonably be predicted to be different and more profound, just as the issues being written about are different and more profound. Can you point me to a state bar president in history who's used his "letters from the president" column to perform some stunning new synthesis of constitutional theory? You fault her for being appropriate exactly why?

*********

What's very frustrating to me is how the goalposts keep moving on this nomination, and it's my own team that's doing it. (I say "my team," I actually mean "what I thought, apparently wrongly, was a team, and the one I've always thought I was on.")

First it's "She wasn't even on law review." Okay, so I explode that untruth, which took no more effort than to look in a standard legal directory (plus the preexisting knowledge, as a Texas lawyer, that the "Southwestern Law Journal" is in fact a law review even though it doesn't have the words "law review" in its name). Is the response, "Hmmm, well that's encouraging, we're sorry about jumping to that wrong conclusion, and you know, that's pretty encouraging, she was indeed a law review editor just like John Roberts"?

No, the response is "She was at a second-rate law school." I and others point out that it's a pretty good school, she was there because her family and financial situation tied her to Dallas, she was among the top of her class, and her professors still rave about her 35 years later. Again, is the response, "Hmmm, well, that's encouraging"?

No, the response is "Well, she's never handled any really big cases involving constitutional law." I point to three published opinions from appeals on constitutional law matters — one of them a question of constitutional first impression when she was opposed by one of the nation's most respected constitutional law professors with the outcome of a presidential election on the line, and she just beat him like a drum in the trial court, the Fifth Circuit, and the Supreme Court. Here you go, guys, volume and page numbers. Is the response, "Man, we've been really wrong about our facts now more times than we've been right, maybe we're being grossly and rabidly unfair?

No, the response is "Well, anybody could have won that case. And besides, she's never written any op-eds."

It would be useful, and productive of further reasoned debate, if some of the people who've been proven wrong about some of these facts would squarely admit that, take responsibility for it, and confess that their proven factual unreliability in the past ought caution them to go slow in the future in making sweeping pronouncements. But not many critics of Harriet Miers have been slow in making sweeping pronouncements. Basically the only limit has been whether the critics have broadband internet access or are still on dial-up.

*********

But no one's being elitist! Oh, no, there's no hidden elitism here! Absolutely nobody opposing this nomination is doing it because of elitism, and how dare you question their patriotism?

So who's the newest critic who insists that this nomination is "a disaster on every level"; that "It's a little late to develop a constitutional philosophy or begin to work it out when you're on the court already"; and that "It's kind of a slap in the face to the conservatives who've been building up a conservative legal movement for the last 20 years"?

Robert Bork. The acid-tongued, short-fused, fire-breathing, contempt-dripping law professor-turned-judge who famously scolded senators on the floor of their own chamber for being so stupid and who generally freaked out the American public. A genuinely brilliant conservative, whose lifetime personal contributions to the precedent of the Supreme Court turned out to be zero. Well, he is indeed qualified to speak of disastrous nominations and botched confirmation processes, being as he is the all-time quintessential example of same in the history of the Republic.

But he's not being elitist in blaming a practicing lawyer for not publishing constitutional law treatises on a regular basis, no sir. And we'd keep moving these goalposts for any nominee, not just one who's coming from amongst practicing lawyers instead of the professoriat.

Robert Bork is an elitist. Period. He's not the only one, either. And confronted with that accusation, he might very well twirl to face his accusers, agree, and mount an impassioned defense for elitism that would, in the end, not be an endorsement of excellence but an assertion that only law professor-types are excellent enough to be on the Supreme Court. No one will ever convince him otherwise, his mind is closed.

*********

But I am not, repeat not, accusing every other opponent of this nomination, nor every skeptic about this nomination, of identical elitism! To the contrary, many of the people squawking now are, in other contexts, quite meritocratic, and quite skeptical of the cultlike worship of academics. Some of them are in or of legal academia themselves, and yet ordinarily are wonderfully skeptical of it! That's precisely why they're so offended at the suggestion that elitism is involved. I freely stipulate — nay, I earnestly join them in proclaiming! hear ye, hear ye! — that their skepticism or opposition is not the result of culpable, conscious bigotry and snobbishness.

But that doesn't mean it's altogether fair, or altogether rational, either.

*********

Look, folks, Dubya didn't pick who you all clamored for him to pick. That's not because Dubya hates you; he wasn't flipping you off. And he absolutely, positively knows how important this stuff is; it was no accident, nor insincere, when he talked about judges in almost every campaign speech in 2004. But he recognizes that the duty of making this pick is ultimately his. And he sincerely believes that he, personally, has a more solid basis for making an informed prediction about what kind of Justice this woman will become than he, personally, has for making predictions about anyone else, including any of the ones y'all were clamoring for — some of whom he might return to next time, if there is a next time, but none of whom he knows now like he does Harriet Miers.

"She's not who anyone else would pick as the 'best candidate' even among practicing lawyers," you insist. And you're right, if you exclude from "anyone else" not only Dubya but her other clients and colleagues. There are in fact a great many practicing lawyers with comparable qualifications (although I dispute that there are many with hugely better ones). But they all are strangers to our President, like Harriet Miers is a stranger to you. So why should he trust them?

And why should you trust him? Well you don't have to. But he is the President. Implicit in the fact that the Constitution gives him the pick is the likelihood that he'll pick someone who's qualified from among the people he actually knows a lot about; and that ain't cronyism if they are indeed qualified.

*********

A sympathetic commenter of mine wrote the other day, "This is like the crowds shouting for Barabbas," which made me laugh really hard. That's too harsh.

But an unfortunate confluence of thoughts and emotions — almost viral, certainly self-sustaining, an ugly feedback loop — has swept through many folks on the Right, including most of the punditry (save, as JPod points out, myself, Hugh Hewitt, and there actually are a few others, albeit less windy ones). Some part of it's disappointment and resentment. Some part of it is insecurity. That is, some folks harbor fears — and some folks, more than just doubting him, boldly join the Left in asserting — that Dubya really is a stupid chimp, an idiotic cowboy, a corrupt cronyist, a secret traitor to the cause. (The Left's version replaces the last element with "puppet of Rove and evil Halliburton.") If you're pounding the table as you read that and you're saying "Damn right he is!" then you're beyond my or anyone else's power to persuade; no one will be able to cure your insecurity, and nothing would reassure you short of the President ceding to you, personally, the right to make these nominations.

Yet, still, I think that disappointment and insecurity are ultimately the lesser part of the confluence. And that's why I still have hope for this nomination. The greatest part of the confluence of negative thoughts and emotions about this nomination comes, I firmly believe, from a failure of imagination. And that is something that's curable.

In some cases, it's actual ignorance about this particular nominee and about her career path. People didn't know (and wouldn't wait to find out about) her academic record, or the quality of her law firm and its practice and its clientele, or her service to the profession through her bar work, or the incredible responsibility she's held and discharged competently thus far in the Administration. Harriet Miers is the very model of the work-horse, not the show-horse, and unless you happen to be, say, another lawyer who handles complicated litigation in Texas — me — you're understandably likely to have been uninformed about most of those facts.

And in other cases, the problem is that many folks just have never spent any serious amount of time considering any sort of potential nominees who are off the beaten track. It's terribly clichéd to say, but you're failing to think outside the box.

When presented with a nominee whose main credentials are (a) a successful career in private practice as a courtroom lawyer, (b) business leadership within her firm, (c) professional leadership within her profession, and (d) competent performance of important but entirely behind-the-scenes work for the Administration, your reaction has been: "But she's not a judge! She's not a professor!" And you're just stuck in that rut. You're so deep into it that you can't even tell it's a rut.

Instead of asking yourselves, with an open mind, "What gaps in the present Court might a person with Harriet Miers' background fill?" you're just saying over and over, "But she hasn't written any articles about constitutional theory!" You've blinded yourself to the fact that historically, not many of our Justices had done that before taking the bench either; historically, many of our Justices have come from backgrounds quite similar to Harriet Miers' and absolutely no more distinguished than hers.

You've gotten into your heads this rigid, narrow conception of what the next Justice will be doing: "Why, the next Justice is going to be spending her full time articulating and persuading her brethren with subtle, difficult critiques of legal positivism versus legal realism, or textualism versus originalism," or something ... mystical. Oh, poppycock. I hope the next Justice will be doing less of that — the Honorable Anthony "Sweet Mysteries of Life" Kennedy does enough of it for the entire Court.

God save us from brilliant, eloquent, articulate Justices, steeped in intellectualism and rigorous analysis of life and law, who continue to screw things up on a near daily basis. Save us from deep thinkers who are too distracted to keep themselves from stepping in the dog poo and then tracking it all over the house. God grant us some smart but practical Justices — "modest" Justices, in Chief Justice Roberts' terminology. Justices who solve the problems that are brought to them in their limited roles as judges, rather than creating them. Justices who don't think it's their duty or their right to go looking for other perceived problems outside the proper limited scope of their role, or think it's their duty or right to solve everything everywhere.

And God save us from the failure of imagination that would prevent us from perceiving that some such  smart, modest, proper-problem-solving Justices may come from — and indeed, are especially likely to come from — backgrounds like Harriet Miers'.

Beldar on Hewitt Friday

Another transcript of me fumbling around over a long-distance telephone link, again courtesy of the indispensable Radio Blogger (Generalissimo Duane). As always, re-reading such things makes me cringe. I misspoke, for instance, in saying John Roberts didn't have the "law review experience" that others are insisting upon for SCOTUS candidates; I meant to say "post-graduate experience of publishing in law reviews," because of course Chief Justice Roberts was a student author and editor at his law school's most prestigious law journal. Then I repeated that blunder with respect to Ms. Miers, who likewise was a student law review author and editor, but has not spent her post-graduate career writing for publication in law journals in the way that law profs seeking tenure typically do.

JPod: If Miers had only penned some op-eds!

From the transcript of Hugh Hewitt's interview today on his radio show with the talented and always-interesting "JPod" — multi-media columnist, talking head, and blogger John Podhoretz:

HH: What would prove to you that [Harriet Miers] had the intellectual ability, because I think it's quite obvious that she does.

JP: I would like it if she had written one op-ed in her entire life, on any subject, of any remote interest, it might suggest that she was engaged with these matters.

In fact, as presidents of both the State Bar of Texas and the Dallas Bar Association, Ms. Miers regularly wrote op-eds — quite a few of them. She was writing primarily for an audience of fellow lawyers, however, rather than for the general public. Now, I don't know if JPod will accept an opinion editorial not published in a newspaper as an "op-ed," nor whether he finds, just to pick one example, the need to protect the public from unethical lawyers to be a subject of "remote interest." But I suspect that he might reply by saying that he really meant to say: "An op-ed on important matters of constitutional interpretation and philosophy" or some such thing.

I'll grant that this is a reasonable requirement — if you believe the Court should be limited to professional academics and philosopher-kings, and if you're willing to exclude the overwhelming majority of all practicing lawyers from consideration for the Supreme Court. I'll grant that one could take these positions without necessarily being "elitist" in the sense of being a credentials bigot. I'll even grant you that today's Court is composed essentially as if those were in fact the relevant criteria, even though historically they have not been until very recent times.

But I respectfully submit that if you do adhere to those as your criteria, you'll forever after have a Court as dysfunctional as today's is. There: another op-ed from Beldar!

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?

Is Miers one in a million? A reply to Charles Krauthammer

WaPo columnist Charles Krauthammer, normally remarkably thoughtful and open-minded but always eloquent, disappoints me in his column today on the Miers nomination by asking this very good question without bothering to pause to consider its answer:

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president?

Well, sir, I have your answer right here, 'cause not a single other one of those 1,084,504 lawyers can say they've been —

• counsel to the President and to the governor of one of the most populous states, along with having competently executed several other high-level White House staff positions;

• president of both the state bar association in the Nation's second largest state and of one of its most respected and active local bar associations, as well as having led valiant efforts to return a dysfunctional American Bar Association back to its roots of apolitical service to the profession and public;

• long-time managing partner of an extremely well regarded large Dallas-based law firm, which then became a successful 400+ lawyer statewide powerhouse after she oversaw a successful cross-state merger with a Houston-based firm of comparable size and reputation;

• an accomplished courtroom lawyer, praised with words like "very good, cool, deliberate, poised, effective" by the judges before whom she's appeared, with experience at both the trial and appellate level in both state and federal courts, capable of personally attracting repeat engagements from sophisticated clients like Microsoft and Disney, and regularly listed among the top 50 or 100 American lawyers in listings complied by national legal periodicals;

• a law clerk for two years for a respected federal district judge, providing further insights into federal trial practice of a sort that no current member of the Court can claim;

• a published member of, and then an articles editor for, the top law journal at her law school, noted for its comprehensive coverage of Texas law; and

• a "very thoughtful, very good student" who made "top marks" and could be counted on to give "solid, intelligent answer[s]" to "critical question[s]," according to a professor of hers, nationally recognized as an expert in business law, who 35 years after teaching her pronounced himself filled with "great satisfaction" to see her nominated to the Court.

Dr. Krauthammer's question also seems to assume that "her connection with the president" is a negative factor. Instead, it reflects the fact that based on years of close dealings with her, the President says he's more sure, based on personal knowledge of her, that she won't turn into "another Souter" than he could be with respect to anyone else he might have nominated — thus allowing him to keep his campaign promises about judicial nominees. He made those as his personal promises to the voters; why, now, is he being faulted and accused of "cronyism" for trying to fulfill those promises on the basis of his personal knowledge of and confidence in this nominee?

Dr. Krauthammer's column engages in the revised version of the "we're not being elitist, but ..." argument that has begun circulating lately. And to be clear, I'm not suggesting that he ever sniffed at Ms. Miers' SMU law degree or Texas legal practice; but others certainly have, and many false impressions still linger. Nevertheless, the revised version of that argument, if not as obviously elitist, still shows either (a) a lack of imagination or (b) a lack of appreciation of what judges and lawyers actually do, or (c) both.

Dr. Krauthammer insists, for example, that "constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship." And then he simply presumes — conclusively and irrebutably, it would seem — that Ms. Miers has no more capacity for "intellect steeped in scholarship" than any of the other 1,084,503 lawyers in the United States.

That's rather at odds with her actual record, which reflects considerable intellectual tools. But it's also far too narrow a focus, in several respects. In the first place, only a portion of the Court's work is, strictly speaking, "constitutional jurisprudence." The Court also deals with many other types of issues — indeed, a whole panoply of issues as diverse as, well, the kinds of cases that a top-flight courtroom lawyer at a first-class law firm has dealt with. There's a reason, Dr. Krauthammer, that most lawyers only take one, or at most two or three, courses in constitutional law: there's a lot more law out there, and it's important to the Nation too.

Dr. Krauthammer and similar critics of the Miers nomination also seem to believe — I can't imagine why, because it's counter-factual and counter-intuitive — that you have to keep writing law review articles month after month and year after year in order to have a powerful intellect. They seem to think that unless you do that, or you have the very, very rare sort of private practice that John Roberts had, doing nothing but appellate litigation in what's functionally indistinguishable from a never-ending law school moot court, you're simply incapable of grasping constitutional law as well as, umm, Charles Krauthammer can, I guess, as a physician-turned-pundit. Dr. K, it's unlike you to impute a negative stereotype to such a huge class of people: being a practicing lawyer doesn't mean one's retarded, and in fact there's a positive correlation between intellect and success as a practicing lawyer.

Moreover, while constitutional law is certainly important and raw intellectual ability is important as well, there has been no shortage of very smart constitutional scholars on the Court. Indeed, that's exactly how — and why — nine of them have been able to produce ten different opinions on a single day to try to explain why displaying the Ten Commandments is constitutional in Texas but unconstitutional in Kentucky.

A reasonable observer — a reasonable President, and reasonable senators — might conclude that some important sorts of diversity other than race, sex, and religion might be missing from the Court. Someone who hasn't clerked on the Supreme Court, but instead down in the trenches in a federal district court, and then practiced law there for many more years, might be useful among the Justices. Someone like that might have figured out and persuaded her colleagues on the Court, for instance, that it was a poor idea to turn state and federal sentencing procedures entirely topsy-turvy all at once and without warning, and then to shrug and say, "Oh well, we'll see about cleaning up our mess next Term."

Yes, I am hesitant to repeat an argument that Harry Reid has made publicly. But even a stopped clock is right twice a day, and Sen. Reid is correct in observing that the Court badly needs someone with the perspective of a practicing lawyer with trial-court experience.

This is not an argument in favor of mediocrity. This is an argument in favor of adding some different kinds of smarts to the Court. Until fairly recently, it was the rule rather than the exception to draw some new Justices from the ranks of practicing lawyers who've been successful and who've demonstrated character, devotion to profession and community, and sound judgment as measured in a wide variety of contexts. I respectfully submit that if you think your menu has only three choices — circuit judges in column A, law professors in column B, and law professors turned circuit judges in column C — then you are indeed being either elitist, unimaginative, or both.

In Dr. Krauthammer's case, I'm relatively sure the problem is simply a failure of imagination. And I'm hoping that he and quite a few others who are prejudging Harriet Miers' nomination will try to open their minds to the benefits that Dubya already perceives from it. In fact, there are quite a few more than "one in a million lawyers" who would constitute wise choices to fill Justice O'Connor's slot on the Court. But blinding oneself to this one in a million's particular set of credentials, or arbitrarily excluding her from consideration because she's neither a circuit judge nor a law professor, is both unwise and unfair.

Home-town law school consequences

From a revealing article in today's Dallas Morning News:

Ms. Miers lived with her mother, Sally, and younger brother Jeb during her SMU undergraduate and law school years. Her father, Morris Miers, suffered a stroke during her freshman year, leaving the family in financial straits.

Concerned that she couldn't afford to keep her daughter in school, Ms. Miers' mother telephoned SMU President Willis M. Tate, seeking help, said the nominee's brother, Robert Miers. The president arranged a scholarship and job for the student at the university's campus computer center, Mr. Miers said. "Harriet and the family are grateful to this day."

So my question for whoever was Rich Lowry's source of serious misinformation (which both Mr. Lowry and his fellow NRO blogger Jonah Goldberg, to their credit, have since corrected):

Hypothetically, if your daddy has a stroke when you're a freshman in college, and you stay close to home so you can work a scholarship job while you're going to the best college and then the best law school in town, and then you clerk for a local federal district judge, and you go to work for one of the best firms in town (but that town isn't Washington or New York), and you go on to rack up a string of exceptional professional successes — does that nevertheless mean you're forever after a "third-rate" lawyer, forever after unworthy to be considered qualified for the Supreme Court, because you didn't go off to some Ivy League school?

Just askin'.

Miers and the Erxleben litigation

I'm reprinting here a long and probably too-passionate comment that I just left in response to a post over at Confirm Them that republishes some absolutely trashy innuendo to the effect that Harriet Miers was "at the center" of a major "investment fraud." I'd seen a short reference to the underlying lawsuit involving Ms. Miers' firm on Prof. Bainbridge's blog on Monday, and left a similar comment there, but didn't post about it here or make a big deal of it because Prof. Bainbridge had been careful and quite proper to note in his post that "there is no allegation she took part in the fraud." I'm startled to note that the article linked over at Confirm Them was written for WorldNetDaily by none other than Jerome Corsi, the co-author with Houston lawyer John O'Neill of Unfit for Command last year. I very much wish that Dr. Corsi had gotten some insights from someone like Mr. O'Neill before publishing this stuff, because it's an outrageous smear — one that I hate to see even make the rounds, and that I'm embarrassed to have to link to here because it leaves me feeling soiled. Confirm Them writes of this, "it should give us all pause." Yes, precisely — pause to see whether you've been fair, or whether you're perpetuating and propagating an unjustifiable smear.

Herewith the reprint of my comments (slightly edited and expanded; emphasis in original):

------------------------------

This, frankly, is an outrageous smear. And this website ought to be ashamed to be spreading it.

Strong words, I know, and not the sort of condemnation I usually level against conservative bloggers I genuinely respect. But the suggestion that some sort of fraud is imputable to Harriet Miers over this is — well, it’s more outrageous than I can adequately express without slipping into profanity.

Every major law firm in the country has been sued on grounds like these at some time or another. If you have a contrary impression, you’re full of crap.

Why do law firms get sued in cases like these? For the same reason that banks, investment bankers, and insurance companies often do: Because they’re the deepest pockets left standing after a bad deal goes south.

Which firms pay out the biggest settlements? The very best ones. Why? Because they’ve been the lawyers involved in the biggest deals.

I am here to tell you, from my first-hand experience as a practicing lawyer from Texas, that during the hard times in the oil patch in the early 1980s, and during the S&L collapse around that same time, every major firm in Texas was sued repeatedly. Every one, without exception. Only a tiny, tiny percentage of those claims ever resulted in any proof of misconduct or impropriety. But they sure made life difficult for us. I still get a W-2 and a check for about $40 every year from a Dallas-based firm in which I was a partner in the early 1990s, as part of a refund over time out of some reserves set-aside that had been set up as part of some settlement. I have absolutely no clue what the underlying lawsuit was about, but whatever it was, I’m sure you could make charges against me with exactly the same credibility as the charges you’re peddling against Ms. Miers’ here — that is to say, with ZERO credibility.

I know some of the lawyers who were on the plaintiffs' side in this particular lawsuit, and they’re formidable. I’m sure that added a lot to the settlement value of the case — i.e., what they could basically extort from the law firm. But look at the facts, folks:

No fraud or other misconduct on the part of the law firm was ever proved. That remained an unproved allegation, an accusation never tested by any judge or jury. The firm denied that it had committed misconduct; the settlement, as is universal in such matters, repeated that denial and made very clear that no admission ought to be implied from it. And in fact, the key legal issue whose uncertainty also added to the settlement value of the case was whether law firms may be held liable for their non-negligent failure to catch and disclose a client's fraud. The plaintiffs were trying to recover, in other words, based on a theory under which they not only didn't have to show that the lawyers in Ms. Miers' firm participated in, or even knew about, the fraud, but instead had used the care that lawyers are ordinarily supposed to use and still got tricked by their client anyway!

The specific lawyers involved were apparently in a branch office of Ms. Miers' firm, not in either of the firm’s two main hubs (Dallas and Houston), and it appears that by the time of the settlement, they’d left the firm. Now, there’s always an argument to be made that the captain of any ship is responsible for his/her crew’s misconduct. I don't know anything about the circumstances of their leaving, and it may have been entirely unrelated to this lawsuit or these claims. But if you want to draw inferences and start speculating, I’d suggest that the appropriate inference is that Ms. Miers and the other top management of the firm did such housecleaning as may have been necessary, if there was any misconduct on the part of those branch-office lawyers. That’s a good thing, not a bad thing.

Unless you’re similarly willing to ride out of town on a rail the top management from every major bank and securities firm in the country — ’cause they’ve all been sued, and all paid out money to settle such lawsuits — you ought to rethink these allegations.

And ask yourself this: If you’re a conservative in favor of tort reform and curbing litigation abuse, what in a Justice’s background is likely to make him or her more receptive to the need for such things than having been targeted with bogus lawsuits?

Shame, shame guys and gals — you ought to know better than this, and if you didn’t, you ought to have asked a lawyer who did.

Is the Miers nomination all about Dubya flipping off his base?

Apparently some conservatives are suggesting with a perfectly straight face that the explanation for, and the real point of, the Miers nomination was for Dubya to demonstrate his contempt for his base — to get in a bit of payback against those who've been bashing his buddy Alberto Gonzales and demanding that his judicial nominees come from their pre-approved lists. So suggests columnist Bob Novak, in an op-ed that I came upon after it was linked by my blogospheric friend Prof. Bainbridge. Peggy Noonan engages in some similar speculation in a WSJ op-ed. Presumably they can't come up with any other rational explanation for the nomination, so it must, by process of elimination, be all about revenge — Dubya having a tantrum, Dubya flipping off his base.

Oh, please. This theory amounts to disappointed conservatives clutching their hands to their breasts and sobbing: "It's all about MEEEEeeeeeee!!!"

It's just not. It's all about who will be in the slot currently occupied by Sandra Day O'Connor for what's likely to be the next 10-20 years.

Bush-41's legacy — that which springs to mind today when most folks think back to Poppy's presidency — consists of three things: The successful Gulf War, the broken promise on "Read my lips," and Justice David Souter.  (People mostly forget that Poppy also nominated Justice Thomas, and Reagan still gets most of the credit for the final victory in the Cold War.)  Bush-43's legacy — that which will spring to mind in a decade or more when most folks think back to Dubya's presidency — will certainly consist of at least three parallels: The GWoT, his tax cuts, and his Supreme Court nominations. That, folks, is the way the score will be kept by history. Macro, not micro. Stuff you can count on one hand and have fingers left.

Maybe these baseball metaphors are particularly appropriate because of Dubya's history with the Texas Rangers, so I'll indulge an another extended one:  Ten years from now, only a complete wonk will be able tell you details about the average pitch count — balls versus strikes run up by the batters — in, say, the 73rd game of the Boston Red Sox' 2004 season. But most folks with even a passing interest in baseball, and certainly every Red Sox fan, will be able to tell you even ten years from now that 2004 was the year the Curse of the Bambino was broken and the Sox won the Series. Well, folks, focusing on whether Dubya's short-term approval rating among his base during the month of October 2005 goes down 10 points or 30 points as a result of the Miers nomination, and debating whether the nomination was calculated to produce that particular result, is like obsessing over the pitch count in the 73rd game of the Sox' 2004 season. (But I guess that's actually a simile, isn't it?)

Conventional wisdom has already stripped Dubya of most credit for the incredible coup of the Roberts nomination. Mere weeks after major elements of Dubya's base were soiling their knickers in nervousness over this "cypher" and this "unknown with only two years on the bench," history has already been rewritten to paint John G. Roberts, Jr. as the uber-Nominee — the nominee who was such an obvious and compelling choice that Dubya basically gets no credit for picking him. That's not very fair to Dubya, but it's also not very important. Because whether the nominee gives "the base" the warm fuzzy happy feelings or makes "the base" rend their hair and gnash their teeth is, frankly, barely consequential in even the medium run. And in the long run, it's completely inconsequential.

Lots more will happen in the thirteen months between now and the November 2006 elections. Yes, there may still be some people then who are still kicking their heels against the ground, holding their breath, insisting through their blue lips that they're going to stay home from the polls to "punish" the President for his "backstab" with the Miers nomination. But not many. In the first place, by the off-term elections, we'll probably have at least a small set of "Justice Miers" opinions to look at, and a substantially larger set of "Justice Miers" votes; she and new Chief Justice Roberts will have a Supreme Court track record by then, if only a short one, and by November 2006 that's going to matter more than anything that happened in October 2005. Second, God forbid, but al Qaeda could push this so far back in people's memories with one more domestic-U.S. terrorist event before November 2006 that Republicans would look back to the days of October 2005, when we were all worrying about whether Dubya had alienated his base, as being "the simple times, the good old days." Hopefully that won't happen, but some sort of other stuff — consequential, important, and newsmaking stuff of the sort that regularly drives people of all political persuasions to the polls — will almost certainly be on the forefront of most voters' minds by the mid-term elections.

And by October 2015, whether the Miers nomination annoyed or sparked rejoicing among the conservative base way back in October 2005 will be the kind of thing relegated to a middle of the day "remember when" post in The Corner, a cute footnote to whatever Supreme Court nomination debate we're all having then.

By contrast, even in 2015, and maybe in 2025, and for every single year during that stretch that she's on the Court, the Supreme Court votes cast by Justice Miers, and to a lesser but still important extent her bases for those votes, will still be hugely important.

I know some folks think Dubya has, as Professor B eloquently puts it, "a short fuse, intense loyalty to a very select group of people, a strong stubborn streak, a reputation for holding grudges, and [was] maybe never really ... a true believer himself." But even if that's all so, do you think he's stupid enough to confuse the pitch count with the Championship?

So: It's not all about you, disgruntled conservatives. It's all about the Court, and about what this President does with his limited number of chances to influence its direction and the results it reaches. C'mon, folks — you know that, doncha? Sure you do, because that's the knowledge that got you (and all of the rest of us) all worked up in the first place! This is vastly important — but not because of whether Dubya's picked someone you do or don't approve of this week or this month. Thinking this is all about what kind of "message" Dubya was sending his base is just a self-important fantasy, and it's definitely a diversion from what's really important.

Like it or not, we won't have a basis to even begin to draw conclusions about whether these nominations have been terrible, great, or somewhere in between, until the end of their first season on the Court. And Chief Justice Roberts has just stood up for his first at-bat, and Justice-nominee Miers is still suiting up in the Senate locker room. But it's the score at the end which matters. Dubya knows that, and so do all of you — maybe you just forgot it for a moment, an understandable lapse attributable to your commendable passion.

Miers in court: Very good, cool, deliberate, poised, effective

If you want to know who's an effective courtroom lawyer and who's just a preening, posturing candy-assed (excuse my bluntness) litigator, one very good way to find out is to ask an experienced trial judge.

Blawger Evan Schaeffer quotes at length from a December 1996 Texas Lawyer profile on SCOTUS nominee Harriet Miers, which includes this bit from the Hon. Merrill L. Hartman, presiding judge of the 192nd District Court of Dallas County, Texas:

"I've had her in court. [She's] very good, very cool, very deliberate, very poised, never gets rattled, very centered and has a very matter-of-fact way of communicating to a jury that's very effective," says 192nd District Judge Merrill L. Hartman.

As I mentioned in a comment on Evan's blog, I've appeared before Judge Hartman. He's among Dallas County's most experienced and respected trial judges, a no-nonsense jurist who's quick on the uptake, extremely efficient and professional, and unlikely to gladly suffer fools. I don't believe he'd be inclined to engage in grade inflation, and words like these from a trial judge like him constitute high, rare, and well-informed praise.

By all means, read the whole thing if you want to get a sense of what her peers in Texas were saying about Harriet Miers long before she'd ever become Counsel to the Governor of Texas or the President of the United States.

Here's another bit of information, about which you'll just have to take my word for it: I'm disinclined to quote from emails from readers unless the writer has expressly authorized me to do so, and I'm going to stick with that policy rather than infer their implied consent and start cutting and pasting onto my blog. But as of this moment, I've got 312 non-spam, still-unread emails in my inbox, all received since Monday morning, and almost all of which have to do with my posts about Ms. Miers. I've managed to at least skim through another three hundred or more. Most of them are from readers with opinions but no personal knowledge, and I'm grateful for those of course. But of the ones I've managed to read so far, I've gotten unsolicited emails from a former professor of hers; a fellow editor on the Southwestern Law Journal; a former colleague in a high leadership position of the State Bar of Texas; several lawyers who've had cases with and against her; and three different lawyers (including a judge) who've practiced with her and/or who describe her as a role model, pioneer, and a personal inspiration. Percentage thanking me for publishing factual and detailed information about Ms. Miers' record: 100 percent. Percentage expressing any doubts about her fitness for the Court based on personal knowledge and dealings with her: Zero.

The notion that Harriet Miers' only qualification, or even her main qualification, is her friendship with Dubya is outrageous.

(Hat-tip to Orin Kerr on the Volokh Conspiracy.)

Professoriat to Dubya: Shut up and do what we tell you, you're just the President

If you have any doubt that much of the opposition to the Miers nomination is generated by reflexive elitism, I humbly submit these comments by Randy Barnett, the Austin B. Fletcher Professor of Law at Boston University School of Law, whose anti-Miers WSJ op-ed I criticized on similar grounds earlier this week:

I do not expect any president to know enough about judicial philosophy to pick judges on his own. I expect him or her, however, to appoint advisers who do know about such matters and follow their advice.

Catch your breath, and then re-read that closely. "Any president," sez the good professor. I suppose that would include, for example, Duke Law grad Richard Nixon, Yale Law grad Jerry Ford, Yale Law grad Bill Clinton, and all of our 23 other lawyer-presidents (including that Lincoln fellow, who didn't go to law school at all!).

If you believe the world should be run by philosopher-kings, by experts, by PhDs and law professors (mere J.D. degrees don't qualify, it seems, and don't make me laugh by suggesting that a mere voter's opinion might count); if you believe that the rest of us are just too damn dumb to be trusted with pointy objects, puddles of water deeper than 1/2 inch, or judicial nominees — well then, this makes perfect sense.

However, if that's your view, then you ought to re-write the Constitution. Because it very specifically vests the appointment power in the President, whether he's a lawyer or a butcher or a baker or a candlestick maker. (A mere Harvard MBA, again, is presumptively incapable of managing to tie his shoes or pick a judge, never mind that Roberts fellow or any of Dubya's other nominations.) What's important, according to the constitutional scheme devised by the Founders, is that "We the People" pick a President, who then picks the Justices, who are then confirmed or not via the advice and consent of the Senate. But let's just do away with all that nonsense. How can the United States Senate compare to a faculty senate? How can the President of the United States think that sixty-two million votes in the last election give him a right to make this decision?

I continue to respect Prof. Barnett. But I reject — I mock and I ridicule without apology — his notion that only "experts" or "advisers who do know about such matters" have the ability or the authority to decide who ought to be appointed to the courts. I submit that that notion is profoundly anti-democratic, profoundly insulting to the American public and the office of the POTUS (whoever holds it), and profoundly contrary to both the history and intent of our constitutional structure under the rule of law. As I commented on Prof. Barnett's post, if he really believes that, he's "not just off into the elitist deep end now, [he's] drowned in it."

But it pretty well would explain the opposition to this pick, wouldn't it? As one of my readers wrote in a comment to another post, the headline should be:

BUSH NOMINATES NON-SCRIBBLING NON-PROF; SCRIBBLERS, PROFS FIT TO BE TIED.

Miers, the ABA, and candles in the darkness

I'm about to admit to résumé fraud.

I'm pretty sure that on every written résumé I've ever had after beginning the practice of law — and being somewhat of a credentials snob myself, I've always had one lying around somewhere — in listing my "professional affiliations," I've had a line reading something like this:  "Member: Houston Bar Association, State Bar of Texas, and American Bar Association." And that's sometimes been a lie.

Oh, I've been a member of the State Bar of Texas continuously, without break or exception, ever since the day I got my law license (Nov. 24, 1980 — the date's embossed on my bar card). In Texas, you have to be; membership in the State Bar is mandatory in order to be licensed. And I believe strongly in the professional, charitable, educational, and public service work done by the Houston Bar Association. Like the SBoT, it's essentially an apolitical group, one that includes lawyers of every political stripe, from all practice areas, from all size firms, etc. So I've tried to keep my membership in it current, and I occasionally go to some of the Houston Bar Association's continuing legal education luncheons, and so forth. I'm not particularly "active" in either the SBoT or the HBA, but I'm a willing supporter of both organizations and their work and goals.

But my membership in the ABA has been spotty at best. I think if one were to consult its membership records, one would find I've not been a member now for more years that I have been a member. And I certainly haven't revised and re-revised my résumé to reflect my drifting in and out of the ABA.

Like many lawyers, I'm ambivalent about the ABA. Like my local and state bar associations, it does some very commendable things, particularly with regard to pro bono and continuing education. Some of the practice specialty sections of the ABA are quite good, and the regular magazine of the ABA Litigation Section, for example, is quite useful.

And certainly when Lewis F. Powell, Jr. was nominated to the Supreme Court in 1972, his past presidency of the ABA was universally considered an important qualification. It demonstrated his devotion to the profession; it showed that he was a leader among and respected by his peers; it showed his strong and regular character. No one dreamed of suggesting that it said anything, however, about how he might vote in cases on the Supreme Court! Nor, I think, can any of his votes be explained in hindsight as having had anything specific to do with his past ABA involvement.

But over the course of my own career, the ABA has become increasingly political — more of an advocacy group for particular political points of view, and less of a "service to the profession and society" organization. And not to put too fine a point on it, it just irks the hell out of me for the ABA to be using my dues to help promote any political agenda — regardless of whether that political agenda matches up with my own or not! I haven't resigned in a huff, as a protest. But unless I've been at a firm that paid the ABA membership dues automatically for all of its lawyers — and paying the dues is the only "qualification" for membership besides having a law degree, I think; it's by no means an "exclusive" club or a credential suggesting any particular individual merit or accomplishment — I haven't maintained my ABA membership continuously or even regularly.

Nevertheless, of all the arguments being thrown up against the Miers nomination, I think the one that most disgusts me — other, perhaps, than the ugly innuendo implicit in comparing her nomination to that of the ethically challenged Abe Fortas — is the suggestion that because Harriet Miers has been not merely a member, but active in the ABA, she's somehow an unfit nominee. Here (slightly edited) is something I left as part of a comment over on Professor Bainbridge's blog today (emphasis in original):

I explain over on my own blog, at length, why Ms. Miers' participation in either the Dallas Bar Association or State Bar of Texas ought not trouble any conservative, for those are not political lobbying or advocacy groups, but genuinely apolitical "service to the profession and society" groups.

With respect to the ABA, if there were indications that Ms. Miers had helped move that group to the left, or that it had moved her leftward, I agree that would be troubling; but there are no such indications. Prof. B refers to her "beloved ABA"; but a lawyer who's invested so much into her local and state "service to the profession and society" groups naturally longs for something similar, and similarly effective, at a national level. It is a damned shame, a travesty, and a legitimate indictment of the legal profession that we've lost and we now lack an apolitical national bar organization comparable to the Dallas Bar Association or the State Bar of Texas. The ABA used to be one, but it's been possessed by demons. I cannot fault her for wanting and working to see them exorcized. Indeed, I'm ashamed that I, like so many other lawyers who value the need for such a national bar association, gave up that fight.

How dare the opponents of this nomination condemn Harriet Miers for lighting a candle instead of raging against the dark? How dare they fault her for acts of professionalism?

I don't draw the comparison to Justice Powell to suggest that Ms. Miers' voting on the Court would likely resemble his; indeed, to the extent that the ABA returned to its apolitical professional mission, one ought not be able to infer anything about likely votes from participation in it. And there were times that I didn't agree with Justice Powell's decisions on the Court (although many more times when I did). But no one who's even remotely knowledgeable on these topics would argue that Lewis Powell was anything less than a giant, not just of the ABA, but of the American bar; a prince among lawyers and men; beloved of and admired by his clerks and his fellow Justices; and a decent, dignified, and ethical man who embodied and exemplified the personal and professional qualities to which our profession ostensibly aspires. The notion that conservatives are now holding Harriet Miers' work with the American Bar Association against her — when she not only advanced its legitimate public and professional service goals, but endured much grief and frustration in trying her best to restore the ABA to those primary purposes — must have Justice Powell spinning in his grave.

Beldar on Hewitt Tuesday

The transcript's here, courtesy of Radio Blogger (Generalissimo Duane). Man, am I long-winded.

Some questions about the Miers nomination for my blogospheric friend Professor Bainbridge

Admit it, Professor B! The real reason you're against the Miers nomination is that when she was in law school, she was one of those infernal student articles editors, isn't it?!?

But seriously, good sir: Are you familiar, at least by reputation, with Prof. Alan R. Bromberg of the Southern Methodist University School of Law? I believe he's the co-author — along with Prof. Larry E. Ribstein at the University of Illinois College of Law (who also blogs, and about whom I've frequently seen you blog, and with whom I've even traded a few blogging comments myself) — of several scholarly treatises on partnerships and related business associations.

When I was in law school writing my humble student Note for the Texas Law Review in the fall of 1978, Prof. Bromberg — even though he was from the faculty of a competing cross-state law school, and knew me not from Adam — very graciously reviewed and commented in detail on my manuscript. I'd sought him out because I was writing on how the version of the Uniform Partnership Act that had been enacted in Texas interacted with the state's community property laws. And as I recall, Prof. Bromberg, in conjunction with a standing committee of the Dallas Bar Association, had drafted custom-tailored add-on sections to supplement the model act, along with special explanatory comments that the Legislature included when it passed the UPA. He was more or less the "horse" from whose mouth I badly needed some key information regarding legislative intent (really, his intent, for he'd been scribe to and the intellect behind the Legislature's actions). I recall that he even shared with me some of his original notes from the committee's working papers. I was pleased to give him a special and well-deserved credit when my Note was eventually published.

Now what does any of that have to do with Ms. Miers' nomination to the SCOTUS? Perhaps very little. Ms. Miers was, of course, the President of the Dallas Bar Association a few years later, in 1985. And I mention my personal experience with Prof. Bromberg, SMU Law, and through them the Dallas Bar Association committee in part as an example of the kind of dedicated service to the public and the legal profession of Texas for which they've always been noted. No one should be under the illusion that the Dallas Bar Association is some sort of social club or résumé-credit printing press. And neither, as NRO's esteemed Ramesh Ponnuru has mistakenly assumed, are "the kind of people who spend a lot of time on Bar association stuff ... less likely to be conservative," because at least with respect to the Dallas Bar Association and the State Bar of Texas, they are both genuine service organizations that embrace and include all sorts of lawyers, and they therefore stay carefully apolitical.

In fact, my understanding from friends and former colleagues who practice in Dallas is that Ms. Miers was an exceptional president, even for an exceptional local bar association. The physical evidence of her contributions literally persists to this day, as for example with her leadership in the Association's remodeling of the historic Belo Mansion (locally famous much earlier in its history as having been the funeral parlor in which gangster Clyde Barrow's bullet-riddled corpse was exhibited to the morbidly curious public; sorry, but I had to work that in for the Google searchers someday). But Ms. Miers' intangible contributions to and leadership in the Dallas Bar Association also had long-lasting effects, and led logically in turn to her service as president of the State Bar of Texas (about which I've written here).

That in turn led to her valiant efforts to return the American Bar Association to its original apolitical status as a genuine professional organization rather than a politicized special interest advocacy group: She argued that the ABA had no business taking positions on substantive legal and moral matters like abortion, for example (which the ABA has famously endorsed and promoted, to the discomfort even of some pro-abortion rights lawyers).

And that in turn set me to wondering: Would you agree that Ms. Miers' credentials of service to and through these bar organizations cut in a positive direction? Would you further agree that, as with Justice Lewis F. Powell, Jr.'s presidency of the ABA, Ms. Miers' bar association credentials and history are relevant to her confirmation? Would you agree that taking on the interests that prompted the ABA to endorse abortion rights in the first place was a significant display of both principle and courage on her part? (I assume you're familiar with the special venom saved by the Left for prominent women who are anything less than 100 percent gung-ho in favor of abortion rights, yes?) Does this history affect your evaluation of the likelihood that she will hold fast to principled positions if confirmed, even if they're unpopular?

Secondly, I'm wondering if you've come across these comments about Ms. Miers from Professor Bromberg:

Alan Bromberg, one of Miers' law professors who still teaches at SMU, said he felt "great satisfaction" when he heard his former student had been nominated to the Supreme Court.

"I think she’s an extremely competent person and will approach every case evenhandedly," Bromberg said.

During Miers’ time at SMU she was elected to the honorary society and Mortar Board, in addition to serving on law review. Miers also received the prestigious 'M' Award given to students who are especially dedicated to the university.

The university recognized Miers' accomplishments by bestowing the Distinguished Alumni Award on her in 2002. She received similar recognition from the law school in 1997....

"Her objectivity and open-mindedness have always helped her no matter what she was involved in," Bromberg said....

Bromberg thinks that Miers has a "good combination of private and political experience,” that would help her as a justice.

"It will be interesting to have an appointment without any ideological track record," Bromberg said.

I'm sure you're troubled by the closing comment; you and many other conservatives would prefer a nominee with a long and very public ideological track record. (I respect that view, and I don't expect to dissuade you from it in this post!)

But otherwise, how does this fairly glowing endorsement from a law professor of some national note who teaches in your own field of expertise strike you? How many of your own students, for example, do you expect to be able to remember so vividly and discuss 35 years from now? And what does that say about those students whom you might expect to remember so well, so long? Would you acknowledge that this is at least some evidence of the "documented high power thinking" upon which you insist? And you've written, for example, of the absence in the current lineup of the Court of anyone with expertise, or even a very good understanding, of many important business law concepts. Do you find it encouraging, then, that during almost all of the 35 years since Prof. Bromberg was her professor, she's been handling mostly civil business litigation for, against, and even about various types of businesses?

I respect you not only as a leading legal scholar and as an opinionated blogger who's whimsically serious and/or seriously whimsical, but as someone who's also open-minded. I'll guess that at least some of the information in this post is new to you, or you'd probably have already discussed it on your own fine blog. (No slight to your wine blog implied, of course!) Can we at least agree for the present, then, that not all the evidence relevant to a thorough assessment of the Miers nomination is yet in? Or is your judgment on the matter already final, no longer subject to being disturbed by direct appeal, certiorari, or even mandamus?

(I apologize in advance, and fully understand, if you'd rather not comment publicly and in detail on matters involving your fellow professors and peers, and if that prompts you to decline to address my questions in their entirety, I'll take no offense and draw no adverse inferences.)

----------------------

UPDATE (Wed Oct 5 @ 6:00pm): One of my commenters, parsing (and I think mischaracterizing) Prof. Bromberg's words that I originally quoted in this post, suggests that his endorsement was "rather tepid," and that these were "platitudes" that could be applied to "tens of thousands" of students.

Nonsense.  Let me say directly what I merely implied earlier: You don't leave a vivid impression on a law professor that lasts thirty-five years by being an average, slightly-above-average, or even merely a very good student.  How could a professor — and we're talking here about a nationally recognized expert in his field, a life member of the American Law Institute who's also been a senior fellow of the Yale law faculty and visiting professor at Stanford Law School — pronounce himself to be filled with "great satisfaction" if a mediocre student of his had been nominated to the Supreme Court?  And in another source (a Knight Ridder piece) that I'd seen, but didn't bother to link (mea culpa), Prof. Bromberg is quoted as saying of Ms. Miers:

Alan Bromberg, one of Miers' law professors at SMU, remembers her as "a very quiet, very thoughtful, very good student" who made top marks but wasn't a class leader. "She was not the type of student who volunteered a lot of information, but if you asked a critical question, you got a solid, intelligent answer."

Now, we know that later on, after law school, she did indeed become a leader among her peers — managing partner of her law firm, president of both the Dallas Bar Association and the State Bar of Texas. But apparently, in law school, she wasn't what law students call "a gunner" — someone out to hog the spotlight and show off, someone out to embarrass and intimidate her fellow students. (Everyone who's been to law school or seen The Paper Chase knows what I'm talking about; "gunner" is not a term of endearment.) Are "solid, intelligent answer[s]" to "critical question[s]" from a "very thoughtful, very good student" who made "top marks" not good enough? What does Prof. Bromberg have to do to persuade us — hire a plane to skywrite "She's really smart"?