Why did Bush do it?

For FReepers, knowledge is power.
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?

21 posted on 10/08/2005 9:31:43 AM PDT by AliVeritas ("A Proud Member of the Water Bucket Brigade-Keeper of MOOSEMUSS".)

Most of the objections raised about Harriet Miers, have less to do with what we know about her, than what we DON'T know about her.

But it is not like she is a complete cipher. After all, she has some degree of expertise in the law, and philosophy that President George W. Bush seeks in his appointments to the Federal courts.

Texas jurisprudence goes back to the days of Judge Roy Bean, where court sessions were often carried out with dispatch and left little room for doubt about the decisions handed down. One does not quite picture Aunt Bea this way, but the same toughness lies beneath the surface.

We have had Justices on the Supreme Court who literally disrespected the law, plainly written, to find some hitherto undiscovered "right" in the nuances of the letter of the law, as reinterpreted in today's world. One of the things we may be sure of, with Harriet Miers, is that she has no agenda that would go LOOKING for these loopholes.

22 posted on 10/08/2005 9:38:19 AM PDT by alloysteel ("Master of the painfully obvious.....")

Felix Frankfurter, but he'd be about the only one.

Appt'd by FDR, strong liberal background, but once on the court was considered the strongest advocate of judicial restraint.

23 posted on 10/08/2005 9:52:20 AM PDT by Newtoidaho (Coulter:"Even with hindsight, liberals can't see straight")

"There is no evidence Harriet Miers possesses the judicial philosophy, strength of intellect, firmness of conviction or deep understanding of the gravity of the matters on which her vote would be decisive to be confirmed as associate justice of the Supreme Court"

I'm tired of listening and reading this false judgement. And it is a judgement.

I'll admit I have done no personal research on Harriet Miers, so I'm sure there will be some here in FR that will pooh-pooh my thoughts. Be that as it may, here goes ...

The charge that Harriet Miers has no evidence, is, in itself, evidence to the lack of the ones making the charge, that they, themselves have any comprehension of the American human thought processes.

If Harriet Miers is indeed an evangelical Christian, then there's an entire Bible's worth of understanding regarding the concept of being a judge

Jesus himself advised us to judge righteous judgement.

The Apostle Paul wished Christians could/would stay single, to be un-encumbered with a wife, to devote full time to the furtherance of the Gospel, but if they couldn't, then they should marry.

I don't know what kept Harriet Miers single, but as a widower, I know 21 years of being married and a year and a half being single. We so quickly rationalize what we think we think regarding such matters, but there are few words (at least I have few words) that describe any description of my life now as compared to before.

Suffice it to be true ... Paul is closer to correct than not.

Should Harriety Miers singleness be a choice, one must consider ... why.

If her life has been devoted to politics and service, than she has been able to better focus on her profession than most.

The Marxists hate "Born Again", so political correctness has deemed "Evangelical" a safer word, but to evangelize is to promote the gospel of Jesus Christ.
I think the conservatives that are voicing trepidation regarding President Bush's nomination may not have as clear an understanding of Scripture, or commitment to 'evangel' as the churches they attend, the preachers they 'Amen', or the life they (in this phrase .. we) attempt to live.

I think Harriet Miers, with nothing more than faith in these two areas ... being single and being Christian, is probably the best selection we could possibly have.

We can't afford a Porter Goss in the Supreme Court, but we MUST have a correct thinking person there.

The Senate inquisition is sure to reveal mach to us, and if I'm totally off-base here, I'll publically apologize.

24 posted on 10/08/2005 9:52:27 AM PDT by knarf (A place where anyone can learn anything ... especially that which promotes clear thinking.)

My mind did not go back that far. Will review him.

Have you ever reviewed Justice Owen ROBERTS?????

25 posted on 10/08/2005 9:55:30 AM PDT by cynicom

To: Crackingham; cynicom

I'm keeping an `open mind', though stopping my ears with gun-plugs until the hearings so my brain don't fall out, as often happens with our friends on the left.
I think the thing that bothers those of taking the "wait and see" position is that we've been burned on several appointments by Republicans. That's the obvious point.
More important, argument done right isn't a bad thing, again a fact that our lefty friends ignore every day & in every way. Proper argument leads to optimal decisions.

As the wisdom goes, the stakes (and bases) are hugh.

Will atty Miers just interpret the Constitution, and ignore penumbras and the like? Or will she transmogrify into another `me too' vote for the left.
President Bush gets the benefit of the doubt until she's heard, but like a liberal professor with tenure, once she's in if she's `stealthy', then we're faced with more of the same creative writing.
More FR light, less DU heat. Thanks for listening.
(And finally we're right--even they admit that!)

26 posted on 10/08/2005 9:56:06 AM PDT by tumblindice

One thing I can say about people on the right, they do question, trust me is not sufficent cause to join lockstep republicans.

27 posted on 10/08/2005 9:58:39 AM PDT by cynicom

Personally, I trust the president on this one. After all, he has had a working relationship with this person for many years. He would have a fairly accurate opinion on what is important to this person.

How much can he learn about a judicial canditate in a one or two hour interview? What supreme court justice had a long-standing working relationship with a president before?

I'm confident that she won't look to europe for ways to circumvent OUR constitution.

28 posted on 10/08/2005 10:00:20 AM PDT by stumpy

Why did he do it? I'm thinking maybe Karl Rove set one of these pods down by W's bed late one night.

29 posted on 10/08/2005 10:02:22 AM PDT by InvisibleChurch (The search for someone to blame is always successful. - Robert Half)

Bush has not earned the right to say, "trust me."

1) He didn't keep his word on embryonic stem cells and created a market in embryos, which is what the culture of death wants.

2) Bush signed McCain/Feingold. His conservative princpled stand rested on hoping the Supreme Court would do what he was afraid to do - kill it.

3) Bush has yet to oppose a dime in socialism.

4) Bush is proud of recruiting Kennedy to write his education bill.

5) Bush created a whole new entitlement - prescription drugs. It wasn't something he was pressured into, either. It's passed and signed but no one wants it.

Some argue that it is the president's choice to pick whomever he will nominate. Not true. He is there to represent the people who put him there and to uphold the constitution. Republicans never should've voted for Ginsberg based on her unconstitutional views, rather than voting for her in spite of her wacky leftist views.

Bush has created a disturbing precedent in choosing Roberts and Miers. He has sent the unmistakable message that known conservatives need not apply. Some will say, "...but look at his appellate appointments." Sure, he made excellent appellate appointments, but he left them to twist in the wind in his first term. I'm sure the stealthy nature of his SC nominations are not lost on his appellate appointments, either.

He's also damaged Christian conservatives with his behind the scenes re-assurances that, "...she's gonna vote the right way." In a way, confirming liberals fears that conservatives want a Christian activist judge. Thankfully, aside from Dobson selling out, Christian conservatives have not endorsed Miers.

Conservatives need to press Miers during the confirmation hearings instead of giving her a pass. She may or may not do well, but Bush, the Nixon Republican, has slighted conservatives for the last time.

30 posted on 10/08/2005 10:07:38 AM PDT by Nephi (The Bush Legacy: Known conservatives are ineligible for the Supreme Court.)

Agree. This site is for "independent grass roots conservatives". Nothing there I can see about catering to lock-step Republicans.
And there are a lot of people here who aren't even Republicans but, perhaps like myself, may have a framed photograph of President Bush on their wall. The Democrats took a lot of things for granted recently, and now they're on the outside looking in . . . ad populum, I know.
Gotta go, have a good one!

31 posted on 10/08/2005 10:19:30 AM PDT by tumblindice (Hey, that photo of Billary makes me want to hurl. Or donate. Oh, I see . . .)

The Miers pick is the fulfillment of a promise made to the CHRISTIAN CONSERVATIVE portion of W's base.
The fallout, therefrom, cleves along spiritual, not intellectual lines.

Your input is a case in point.

32 posted on 10/08/2005 10:21:12 AM PDT by Cedric

Good post.
Great tagline!

33 posted on 10/08/2005 10:34:49 AM PDT by dagnabbit (Vincente Fox's opening line at the Mexico-USA summit meeting: "Bring out the Gimp!")

Paddy's panties are really in a knot!!!

34 posted on 10/08/2005 10:38:45 AM PDT by Chi-townChief

One of the things we may be sure of, with Harriet Miers, is that she has no agenda that would go LOOKING for these loopholes.

But...depending on the people she selects for her staff...a whole new view of Constitutional Law may emerge. The justices are very much in need of qualified staff lawyers and can be swayed way off the line. Sometimes I think that the prospective staff members ought to be screened more than the judge.

35 posted on 10/08/2005 10:43:44 AM PDT by Don Corleone (Leave the gun..take the cannoli)

The neo-cons strike again! What's the problem? She didn't go to an Ivy League school? She's not Jewish? She's not an Easterner or Californian?

36 posted on 10/08/2005 11:39:13 AM PDT by expatpat

Senators are influenced by the lobbyist who provide the money to buy the votes.

Buchanan is influenced by controversy. If he is in the middle of it, he makes more money.

The Senate hearings are to determine whether her nomination should go forward. No where in the Constitution does it say that a nominee should be the best and brightest and most articulate jurist.

Section 2: "...and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

I do not see where the Constitution stipulates qualifications except in age, residency, national origin and lack of criminal background.

37 posted on 10/08/2005 11:56:13 AM PDT by Prost1 (New AG, Berger is still free, copped a plea! I still get my news from FR!)

I despise Pat Buchanan. But this time he's wrong.

38 posted on 10/08/2005 11:58:44 AM PDT by Lazamataz (Islam is merely Nazism without the snappy fashion sense.)

But this time he's wrong.

Correction: "But this time he's right."

39 posted on 10/08/2005 11:59:38 AM PDT by Lazamataz (Islam is merely Nazism without the snappy fashion sense.)

After Nixon named Blackmun, Ford named Stevens, Reagan gave us the malleable O'Connor and Tony Kennedy, and Bush's father gave us that textbook turncoat Souter, presidential assurances are not enough.

What makes this nominee different from the others is that Bush has known her for 20 years!

40 posted on 10/08/2005 12:03:29 PM PDT by operation clinton cleanup

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