Posted on 10/08/2005 8:52:39 AM PDT by JCEccles
The lovably irascible Beldar, the Texas trial lawyer who is one of the two people on earth hotly defending the Miers nomination (the other being our buddy Hugh Hewitt), has posted a convenient link to articles written by Harriet Miers during one of her stints as a bar association honcho. He did this in part to address a charge I made on Hugh's show that Miers shouldn't be taken seriously because over the past 30 years of hot dispute on matters of constitutional law she hadn't published so much as an op-ed on a single topic of moment. Thank you, Beldar. But you shouldn't have. I mean, for Miers's sake, you really shouldn't have.
Miers's articles here are like all "Letters from the President" in all official publications -- cheery and happy-talky and utterly inane. They offer no reassurance that there is anything other than a perfectly functional but utterly ordinary intellect at work here.
Let me offer you an analogy. I was a talented high-school and college actor. I even considered trying it as a career at one time. As an adult, I've been in community theater productions (favorably reviewed in the Virginia local weekly supplement of the Washington Post, yet!) and spent a year or so performing improv comedy in New York. I'm a more than decent semi-pro. But if you took me today and gave me a leading role in the Royal Shakespeare Company where I would have to stand toe to toe with, say, Kenneth Branagh, Kevin Spacey, Meryl Streep, Kevin Kline and others, I would be hopelessly out of my depth. I would be able to give some kind of performance. But it would be a lousy performance, a nearly unwatchable performance.
Would that be because I hadn't acted at their level for a few decades? Would it be because I don't really have commensurate talent? Who knows? Who cares? I would stink. And based on the words she herself has written -- the clearest independent evidence we have of her capacity to reason and think and argue -- as a Supreme Court justice, Harriet Miers would be about as good.
I willing to trust a spirit-filled born-again
follower of the Christ, Y'shua from the South
over a New Englander who claims to be a Christian.
b'shem Y'shua
Bull-tweed. What do you think they have clerks and research staff and librarians for? Supreme Court judges have their staffs prepare briefs and outlines and do the research for them. They eventually read some or most of this, but it would be absurd to think every judge knows every decision the Court (and all the circuit courts as well) have ever made. You think 85 year-old demented John Stevens knows every decision ever made? He can hardly find his way to his potty chair.
Very weak strawman.
I have read many Supreme Court decisions and the fact is, the decisions themselves tend to be straightforward and simple. The rationalizations and defenses of positions become arcane and largely self-serving with huge portions of nonbinding, non-precedent-setting bloviations called dicta.
From your posts it appears you are quite gullible and easily sucked in by the carefully nurtured mystique of the Court. Perhaps you should get out more.
The skill, and potential of the "world renowned neurosurgeon" was recognized by someone who knew her before she removed her first brain tumor. She was recommended by that person, and some patient trusted her to perform that first surgery to remove that particular type of brain tumor. Then came a second patient, and a third, until she had performed the 150th, and had become world renowned.
I'm remembering that Elvis was told he would never make it in the music business. Rush Limbaugh was told he would never make it in the radio business. Ronald Reagan was called a second rate "B" movie actor. George W. Bush has been called too many denigrating names to remember or repeat. Justice Clarence Thomas was called "a token", and worse, when he was nominated to the SCOTUS. They each proved the naysayers wrong, and many would say they are among the very best. OTOH, I could list a number of people on the world stage who have failed to meet the challenge of applying their supposed knowledge to the test of reality. Bill and Hillary have had more said about their proclaimed superior intelligence than any I can remember in recent history, but....
First, thank you for your service to our country, and God bless you and your family.
Second, I appreciate the post. You have cut through all of the malarkey to the crux of the matter, and stated it in clear, concise,and simple terms that anyone could understand. Thank you.
"I meant what I said. Not credentials, you idiot, intelligence. Please read next time, I won't repeat myself"
Your quick resort to ad hominem says much. I used "credentials" to include amoung her other failings, her level of intelligence. Specifically, she is intelligent, but not intelligent enough to serve on SCOTUS.
I'll use more mono-syllables if that will help you understand: Miers. Smart. But. Not. Smart. Enough.
Better?
the question is whether she has the level of intelligence required to sit on SCOTUS.
"My God people are just so comfortable in bypassing her past history of achievement and then denouncing her as some old lady cowering in the corner."
Strawman. We aren't denouncing her as some old lady cowering. Why does your side need to resort to fallacy to prop up their arguments?
We don't think she's stupid. She is intellegent. But not enough to serve on SCOTUS.
Bush has ignored world-class conservative talent and experience to put a Harry Reid's pick on the Supreme Court. Is that why we worked so hard to get him elected twice? So he could put the Senate minority leader's pick on the Supreme Court?
That should bother you. It should bother any conservative who has any intelligence at all.
Yes, she did. Read.
"It is almost the same attitude as on the left where the presumption is that african-americans are unable to achieve without affirmative action."
Missed this one. We don't care about her gender, so why play that card? The only similarity here is that you resemble Jesse Jackson - quick to call bigotry where none exists, because you can't counter with facts and logic.
Miers does have a few clear-thinking supporters, such as Hugh Hewitt, who would never regress to make such an idiotic argument such as is being pitched here that the less capable and experienced Miers is, the more qualified she is to serve as one of the nine most powerful justices in the world.
These clear-thinking supporters will only say she's adequate. They're not buying Bush's laughable horse-hockey assessment that Miers is the "most qualified" person he could find.
Agreed, there are valid arguments supporting Miers. We're just not seeing them here - just rabid personal attacks on loyal Bush fans who have reservations about this decision.
Quick. I was freakin' Job with your thick head.
Miers. Smart. But. Not. Smart. Enough.
Prove. It.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Interesting info:
From Beldar Blog:
A Westlaw romp through Harriet Miers' record
Critics of SCOTUS nominee Harriet Miers make much of the fact that she hasn't argued a case in the United States Supreme Court. And in fact, they've been pretty harsh, some of them, in characterizing her record as a practicing lawyer.
What's up with that? Anything to it? Well, heck, let's find out — shall we? Ever since Al Gore invented the internet, we've been living in the Information Age, so let's get some information!
A search on Ms. Miers' name, run in a Westlaw database containing both state and federal court reported decisions from Texas, pulls up 19 separate cases dating back to 1974 in which she's appeared among counsel of record.
Eight of those represent not appeals, but published opinions written by federal district judges. But such opinions are generally only published when the authoring judge recognizes that his ruling constitutes an important or new precedent, and they usually reflect a level of briefing by the litigants and writing by the judge that's essentially indistinguishable from an appellate proceeding. Another four are decisions from various of the intermediate-level appellate courts in Texas. The remaining seven are published opinions from decisions in the United States Court of Appeals for the Fifth Circuit.
Now, the way these things work, this database won't show any of the state-court cases that Ms. Miers has handled, even if they were tried to a verdict, unless one side or the other took an appeal. (Texas state-court trial judges don't publish written opinions, and don't very often write them at all.) And this database almost certainly won't show but a tiny fraction of the cases she worked on that settled before trial, which is what happens to 95+ percent of all cases everywhere. So there are are definite limits to what we ought to expect from this romp. At best, it's going to give us her appellate cases, plus a tiny snapshot of a few trial court matters. She's mostly been a trial-court lawyer, not an appellate specialist like John Roberts, so this search is going to leave out anywhere from, I'd guess, at least 50 maybe up to 90 percent of her actual career experiences.
Still, it ought to be interesting to look at these cases. Just for grins.
Since so many of Ms. Miers' critics are painting these really broad caricatures of her anyway, let's start with her work for The Mouse. In Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25 (Tex. App.—San Antonio 1998, pet. dism'd w.o.j.), the key issue was whether a wholly owned Disney subsidiary incorporated in Delaware could be subjected to the personal jurisdiction of the Texas courts. That in turn took the case into a thicket of both constitutional and nonconstitutional issues — including an analysis of whether there were sufficient "minimum contacts" between the subsidiary and Texas so that the Due Process Clause of the Fourteenth Amendment would not be violated by forcing that subsidiary to respond to a lawsuit in the Texas courts. And that in turn depended on a complicated mix of factual and legal issues involving both agency and contract law. Ms. Miers lost on the personal jurisdiction issue at the trial court level, but then took an extraordinary interlocutory appeal, and won in the San Antonio Court of Appeals. Although her opponents tried to persuade the Texas Supreme Court to hear the case, Ms. Miers apparently persuaded that court to decline to hear it on jurisdictional grounds — meaning, in all probability, that she filed a persuasive brief in the Texas Supreme Court, and then did not have to appear for oral arguments on the merits (and risk losing) precisely because her brief was so persuasive.
(Now how stupid was that, writing such a good brief? Sheesh. If she'd just blown it, and as a result the Texas Supreme Court had taken the case, then she could tell all her critics now that she'd at least argued a case in the Texas Supreme Court. No foresight, this Miers woman. Altogether too focused on what her clients' needs are. How's she ever going to get ahead in the grand game of Beltway Lawyer-Snark if she acts like that?)
Well, anyway: How big a challenge was this case, then? What does it say about Harriet Miers and her intellect and her skills? Some may say that this was "meat and potatoes" stuff, even on the constitutional issues, and it's not the sort of case that was likely to make it all the way to the U.S. Supreme Court. But nevertheless, it obviously was complicated enough to perplex the trial judge, who (according to the appellate court) got it wrong. It was a close enough case that Ms. Miers' opponents thought they had a shot at getting the Texas Supreme Court to hear it, even after losing at the court of appeals level. The facts and law were complicated enough that this case would have made a reasonably good law school exam question. And I'm reasonably sure that to Ms. Miers' corporate client, getting this six- or maybe seven-figure fraud case thrown out of what it would have regarded as a hostile, pro-plaintiff venue — the famously dusty streets of Laredo in Webb County, Texas — was a pretty significant victory.
But what do they know? They're just cartoons and stuff.
From the Mouse on to Bill Gates: Another recent case on the list is Microsoft Corp. v. Manning, 914 S.W.2d 602 (Tex. App.—Texarkana 1995, pet. dism'd), which was an appeal from a state-court ruling that had granted the plaintiffs' motion for class certification, again in a rural Texas county that I'm sure Microsoft was very wary of being sued in. This case turned on cutting-edge issues, including the interplay between state and federal class action laws, that are currently the subject of heated tort reform debate at both the state and national level. And while much of the law was strictly procedural, some of it also got into federal constitutional issues involving the Due Process Clause and the Full Faith and Credit Clause. The plaintiffs' counsel in this case (some very sharp lawyers with whom I'm acquainted) were extremely formidable, and although I don't know what ultimately happened after this appellate opinion against Microsoft was issued, my guess is that the case settled pending further appeals.
"Okay, Beldar," you say, "But what was the case about?"
Well, the case was fiendishly complex both factually and legally, as it involved alleged violations of a host of confusing, potentially competing state and federal consumer laws in connection with Microsoft's upgrade from MS DOS 6.0 to MS DOS 6.2. Now, the geeks among my readers will, as I did, immediately say "Ooooh! Wow!" — but for the benefit of the rest of you, let me point out that as of the early 1990s, anything involving Microsoft's MS DOS operating systems would have been extremely important to that company, touching on the core business on which that company was built. So, friends and neighbors, this was serious, complicated, challenging commercial litigation that many firms would never dare undertake, for a client even fewer firms could ever hope to land. And it was the kind of case that might eventually have beaten the odds and made it up to the U.S. Supreme Court, depending on how things broke. Neither John Roberts nor any lawyer I know, including lawyers in DC or NYC, would have turned up his nose at this case.
But it's no big deal, probably. I mean, look at the client's name. "Micro." Like little, tiny. And "soft." So it couldn't really have been a big, hard case, could it?
On with our tromp through the cases, but let's try to pick up speed. Here's another intermediate Texas appellate court decision, this one involving a commercial dispute over a foreclosure on a deed of trust note. It's the kind of fight that quickly makes most folks' eyes glaze over — unless it was your $2,235,077 bid that was involved, maybe. Ms. Miers won this one.
Another involves the priority of various state lien laws, with a mid-six-figure judgment at stake. Another win for Ms. Miers, ho-hum. This is getting really too predictable.
Then there's a federal case, a Fifth Circuit appeal involving allegations of real estate fraud in a $165 million condo tower deal. No constitutional issues involved, so I guess handling this case counts for less than nothing to Ms. Miers' critics.
And so it goes. As I'm skimming through these cases, I always look to see who Ms. Miers' opposing counsel were. They're mostly names that are familiar to me, which isn't a surprise, since they're also among some of the best lawyers and law firms in Texas. And some of these cases do look as dull and dry as desert sand, except there are always big bucks involved, and often some wicked-complicated legal stuff.
But some of them look pretty exotic. Here's one involving a fight over whether the State of Texas could obtain copies of investigation materials from an ongoing federal criminal grand jury's probe of possible antitrust violations in the prestressed concrete industry. There were probably only a few dozen careers on the line over that, maybe a few tens or hundreds of millions of dollars, with of course the Texas Attorney General and the U.S. DoJ involved, and it looks like a parallel case was going on in Illinois that did in fact make it to the Supreme Court while this one was still kicking around the Fifth Circuit. Looks like Ms. Mires just missed a shot at a Supreme Court appearance there by the skin of her teeth. She won again, though. Bor-ing.
Oh, wait. Here's one that doesn't seem to fit with the rest. A Fifth Circuit appeal — Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981), cert. denied, 455 U.S. 912 (1982) — involving a denial of Social Security benefits to an indigent and ill single mother. No big bucks there, how the heck did Harriet Miers get into this case, fighting the Department of Health and Human Services on behalf of some nobody?
Ah, well, here's a clue. The very first words of the opinion read: "Now ably represented by volunteer private counsel, obtained through a community legal aid service ...." This was a pro bono case then.
So Harriet musta been hangin' out down at the legal aid clinic, just like Meadow does on The Sopranos. That's kinda cool. But to no ultimate avail, it seems: "Like many who appeal negative Social Security decisions, Mrs. Ware is now undeniably ill and may indeed be unable to work, but, fettered by the bonds that the Act places on judicial review, we conclude that the district court properly denied her relief and we affirm the judgment." Touched their hearts and drew their admiration, Harriet Miers clearly did, but she couldn't get this panel — comprising in my opinion three of the finest judges ever to sit on the Fifth Circuit, the judge for whom I clerked, now-Chief Judge Carolyn King, plus Tom Gee and Alvin Rubin, tough graders all — to bend a harsh administrative law out of shape. Funny, that, how Judge Rubin still went out of his way to compliment Ms. Miers. Because, like, she was just a loser, you practically could see the thumb and forefinger-L on her forehead, couldn't you? Don't you think the judges shoulda seen that?
One little bit more about this case: If you aren't up on your citation form, here's what that "cert. denied" notation means: After losing in the Fifth Circuit, Harriet Miers apparently petitioned the United States Supreme Court to hear the case. But the Supreme Court wouldn't hear it; the odds of it actually taking a Social Security benefits denial case were, oh, about 603,209,214-to-1. Oh, well, trash this case then — it just doesn't count, 'cause Harriet Miers has never actually argued in the Supreme Court, y'know, and this couldn't possibly have anything to do with her qualifications as a Justice. What kind of law nerd would try to take some sick mommy's case all the way to the Supreme Court? Like Nina Totenburg woulda bothered to talk to her anyway if they'd taken the case, huh? Waste of time, waste of time.
Now here's another pro bono court-appointed appeal in a Fifth Circuit criminal case, Popeko v. United States, 513 F.2d 771 (5th Cir. 1975). Interesting how these federal judges seem to be turning to her when they have an unusual or exceptional case that needs really creative lawyering, even if it's not going to produce a fee. Case like that probably means lost fee revenues for her firm in the five or even six figure range (time spent that otherwise might have been billed to Disney or Microsoft, doncha know). But she takes 'em anyway. Guess that shows she's not very sharp, just giving away her work for free.
And last, there's Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex), aff'd mem., 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001). It appears that Harriet Miers, on behalf of candidate and President-Elect George W. Bush, became one of the country's exceedingly few lawyers ever to handle a case involving the Twelfth Amendment. (How many Twelfth Amendment cases have John Roberts, Larry Tribe, and David Boies collectively handled? Why, I believe that number would be ... zero!)
Twelfth Amendment to what, you ask? It definitely looks like they're talking about the U.S. Constitution.
You remember that one, doncha? "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves[.]" Gosh, that might have been embarrassing! Win in the Supreme Court in Bush v. Gore, then have another federal court rule it was all for naught if both Bush and Cheney were held to be inhabitants of Texas? Ouch.
I wonder: Who was on the other side of Ms. Miers in that case? Who was trying to undo the 2000 election with this Twelfth Amendment argument? Hmmm — hey, I recognize this guy too: Sandy Levinson. He's only the "W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law" at the University of Texas School of Law. (Translation: heap big professor-guy.) "[A]uthor of over 200 articles in professional and more popular journals." Been a visiting prof at some other pretty good law schools: Harvard, Yale, New York University, and Boston University law schools. Co-author of a leading constitutional law casebook. I actually sorta know Prof. Levinson. Had him for a class, and I edited a book review he wrote for the Texas Law Review; I liked him a lot, and he's definitely one of the national stars on the UT-Law faculty. (I think he blogs some too!)
I suppose that would also make him one of those grand constitutional scholars who spends pretty much all of his time thinking about questions of great pith and moment. You know, the kind of superior, intellectually powerful, big-leagues lawyer that Harriet Miers ... obviously just isn't.
"So tell us, Beldar," you plead, "How'd that case turn out? Did Prof. Levinson save the day for either Al Gore or Joe Lieberman by keeping the Texas electors from voting for both Bush and Cheney?"
Well, the short answer, friends and neighbors, is that Harriet Miers just flat out kicked the distinguished Prof. Levinson's butt in court. On just about every issue, too. And she did it not once, not twice, but three times: federal district court, then again on appeal in the Fifth Circuit, and then again in the U.S. Supreme Court — another one of those "cert. denied" notations.
You ask breathlessly: "But is that 'cert. denied' really a win?" Why yes, friends, it surely is. Because, you see, when you've won in the lower courts, then your job as a lawyer is to persuade the Supreme Court not to take the case. Which is exactly what Harriet Miers did here — after first winning so convincingly in the federal district court that the Fifth Circuit, on the way up, didn't even bother to write an opinion of its own.
Of course, if she'd failed in that effort, and the Supreme Court had granted certiorari, then she'd have probably gotten to do an oral argument in the Supreme Court. Hey, I guess then her detractors couldn't have made that particular argument for why she's so unqualified for the Supreme Court bench, huh? "She's never argued in the Supreme Court, she's such a light-weight, nyah-nyah!" Well, no, she was so good in this case that she didn't have to. But I don't suppose her detractors are going to choke on that bit of irony, are they? Because this was actually just another missed opportunity for Ms. Miers; I think we've pretty well established now that she's never going to cut it as a Beltway Lawyer-Snark Player.
After all, Harriet Miers is just a "third-rate lawyer" from "an undistinguished law firm" who's never handled any big cases, hasn't got any appellate experience to speak of, and has never, ever done anything involving really hard or important stuff like constitutional law. She's just an unqualified crony. Fetches Dubya's coffee. There's just nothing in her record, no meaningful achievements, to distinguish her from a million other lawyers in the country.
Everyone says so. I read it today in the Washington Post! So it must be true, huh?
"Yeah, she didn't like us."
"Not one bit."
"Why, she *snort* wouldn't even join in our weekly game of Magic: The Gathering."
"Yeah, what a geek."
I'll ignore your angry, vicious insults, and respond to this post.
I used your analogy to remind you of the obvious...that there is a first experience on the road to expertise.
I never suggested Bill and Hill were under consideration for nomination to the SCOTUS. They were used as examples of people who have been praised to the heavens as being of superior intelligence, yet have failed to exhibit practical results of it. Others who have been ridiculed and denigrated as being of inferior talent, skill, and intelligence have proven to be among the best in their fields. Again, the obvious point is that the same could be true of Harriet Miers.
The president, not Harry Reid, chose Miers. He has probably known her a lot longer than has Harry Reid, so he didn't need a suggestion, or permission, to select her.
I wanted JRB, or Edith Jones, or Luttig to be nominated. The choice belonged to the president according to the Constitution, and he made his choice.
Some have jumped onto Harriet Miers with all fours, and have verbally ripped her to shreds without waiting for information about her. I was disappointed with the choice, at first, but I'm willing to wait until I know more about her before making a judgment. When that time comes, I'll contact my Senators.
Where is the perspective in all of this? This woman hasn't even had the chance to speak for herself. The hearings haven't begun, and she hasn't been confirmed, yet persons of heretofore sound minds seem to have lost all sense of reasoning and proportion.
I frankly resent the fact that she has been treated so badly by Conservatives based on mere speculation. I think it is delighting the likes of Harry Reid, and other libs. They are probably laughing up their sleeves as they make "nice", "supportive" comments about Ms. Miers, knowing that they are fueling the fires of anger among some Conservatives to the point of rage and hatred toward the president. I believe the Left thinks it is hilarious, and that they are watching Conservatives do what they have tried five years to accomplish...destroy the president, and the Republican Party. They would be willing to confirm Miers, if she were the most conservative SCJ in US history, just to see that happen. If that destruction comes about, it will be because the "intellectuals" in the conservative movement cut off their noses to spite their faces and bled it to death. That won't be George W. Bush's fault. They'll have none to blame but themselves. I'm praying everyone comes to their senses before that happens.
It's distinguished law professor-and former Bush administration official-John Yoo.
It's Abigal Thernstrom, a Bush appointee to the CRC.
It's the lead attorney for the case that resulted in Bush's election to the presidency in 2000.
It's Robert Bork.
Robert Bork, for goodness sake!
If that doesn't send up a red flag...
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