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You are correct regarding friendly fire. The following is a letter from an attorney written to Hugh Hewitt, and he makes some excellent observations.

Mr. Hewitt:

I am a practicing commercial litigator who thus far supports the nominee (although I am reserving final judgment until the hearings). I am also flummoxed by the rush among the Washington DC Conservative Establishment both to condemn this nomination and to dictate to the President of the United States that he must chose a nominee from a list of "pre-approved" names of probably 20 or so acceptable jurists.

Just for fun, I compared Miers' qualifications with that of another potential nominee, Judge Edith Brown Clement on the 5th Circuit, and found them to be very similar -- almost eerily similar. Actually, I would say "Creepy Similar." Like, "These Two Could Be Twins" similar.

By way of background, Judge Clement was one of the judges that Peggy Noonan described in her WS Journal article as being an acceptable alternative to Miers. Others have dropped her name as well (according to Mona Charen's most recent article, David Frum also cited her as a good choice, but I could not confirm this independently). Also, Clement was leaked as the early pick for the seat that ultimately went to Roberts. Based on the fact that Miers lead the search, I am not surprised that, considering their similarities in age and experience, Clement rose to the top of the list. (There's a scoop there for someone to follow and report on!)

Consider the following:

1. Both Miers and Clement went to regional Southern schools -- well respected locally, but without real national profile. (Clement: B.A. Univ of Alabama '69 and J.D. Tulane Law '73; Miers B.S. SMU '67 and J.D. SMU Law '70). I know Miers was Law Review, honors, etc, and I assume Clement was as well.

2. Both clerked for federal district court judges in the South in the early '70s (trial court judges, not the typical federal appellate clerkships for SCOTUS nominees). Clement clerked for Judge Christenberry, E.D. La. from 1973-75; Miers clerked for Judge Estes, N.D. Tex. from 1970-72.

3. Both enjoyed long, successful careers in large Southern law firms. From 1975 to 1991, Clement practiced principally maritime litigation at Jones Walker -- a well respected firm of about 200 lawyers with offices throughout Louisiana (Baton Rouge, New Orleans) and in Texas (mainly Houston). From 1972 through 1996, Miers practiced commercial and business litigation with Locke Purnell -- again, a well respected firm of about 200 lawyers with offices throughout north Texas (Austin, Fort Worth, Dallas).

4. In the early to mid 1990s, both obtained some of the highest levels of success in their profession. In 1991, Bush I appointed Clement to a district court judge position in the E. D. La. (the same place she clerked almost 20 years prior). Miers did not receive a trial court appointment, but in 1992 was elected President of the State Bar of Texas (she was President of the Dallas State Bar in '84). In 1996, Miers' partners voted her president of Locke Purnell. Locke Purnell then merged with another large Texas firm (based in Houston), became Locke Liddell, and Miers was elected co-managing partner of this new firm by her new and old partners -- the firm was by then one of the largest in Texas. This type of prominent position gave Miers access to very important people, and Miers impressed the newly elected Governor and received some legal appointments that sound a little silly now (counsel to gubernatorial transition team, Lottery Commission chair, etc).

5. In 2001, Bush appointed Clement to a seat on the 5th Circuit Court of Appeals and she was confirmed immediately 99-0 (not considered too controversial). Miers, however, went with Bush to DC and moved from WH staff secretary to WH deputy chief of staff to WH counsel -- all assistant to pres/ policy positions. (Note: I am tired of people describing staff secretary as a "paper shuffling" position -- the position is currently held by Brett Kavanaugh, a lawyer who is a former Supreme Court clerk, a Ken Starr protégé, and a Presidential nominee for a seat on the DC Circuit Court of Appeals. The fact that Miers has been dismissed as a "secretary" is the one place where I would say sexism has entered this debate. Nobody has ever dismissed Kavanaugh as a secretary.)

Considering their similarities in age and background, it does not surprise me one bit that Clement rose to the top of Miers' list. In fact, it actually surprises me a lot that Clement did not get the first SCOTUS nod (according to a Wash Post story, Clement came pretty close, but she and Bush did not hit it off in the interview whereas Bush and Roberts did). But I think this demonstrates pretty clearly that Miers possesses almost identical qualifications as Clement. But Clement is being suggested as an alternative by the same people who are suggesting that Miers is unqualified?

In fact, I would go one better -- I have, in my law practice, encountered some federal trial judges in some rural areas who are pretty dense (I'm not speaking of Clement -- I don't know her at all). But I have never, ever met a managing partner of a firm the size of Locke Liddell that I did not consider to be real bright. DC folk may not see this, but I am convinced that Bush sees Miers as an extremely successful Texas lawyer who is comparable or even interchangeable experientially with someone like Clement. (Or, for that matter, other "big firm Texas types" like Priscilla Owens who received her J.D. from Baylor in '77 before spending 17 years at Andrews & Kurth or Gonzalez who spent 12 years at Vinson & Elkins (he did go to Harvard)).

I bet Bush is hearing about this bugaboo from others, turning to Laura and saying -- what's the fuss?

I think two things are going on here. First, some independent minded/ con law bloggers (like Glen Reynolds) really want a SCOTUS nominee who is a "public intellectual" -- Professor/Judge McConnell is probably the most mentioned and I really cannot think of another on the radar (Posner?). There aren't many. Second, most prominent conservative opinion writers -- people who spent their whole lives writing opinions in and out of government -- want a judge who has spent his or her whole life writing opinions in and out of government. Luttig, Wilkinson, Rogers Brown all fit this mold. There's a fair amount of "self identification as qualification" going on here.

Me, I am a practitioner and I want someone who has practiced for a long time, and who has achieved the highest level of success in practice. I would be fine with Clement or Owens, but the President decided Miers was his pick and I really cannot quibble. He makes judgment calls on jurisprudence and temperament (subject to consent of the Senate), not me -- if there's any place he's earned my trust, it's on this.

If Miers was denied confirmation in place of someone in the "public intellectual/ judge for life" mold it is quite possible that for the first time in this nation's history the Supreme Court of the United States would consist of no one who has either (a) tried a case or (b) spent a significant portion of his or her life not in academia, in government or on the bench (with the exception of the 10 year appellate practice that C.J. Roberts engaged in). I do not think that would be a good thing.

In any event, I enjoy your analysis and, again, feel free to use as much of this as you deem appropriate. I do think the comparison between the careers of Miers and Clement is an original take and is worth posting.

Regards,

--Bob