Miers Hit on Letters and the Law ("Writings Both Personal and Official Have Critics Poking Fun")

Washington Post ^ | 10/15/2005 | Charles Babington

[KentTrappedInLiberalSeattle]

Supreme Court confirmation battles usually involve excavations of the nominee's judicial opinions, legal briefs and decades-old government memos. Harriet Miers is the first nominee to hit trouble because of thank-you letters.

Miers's paper trail may be relatively short, but it makes plain that her climb through Texas legal circles and into George W. Bush's inner circle was aided by a penchant for cheerful personal notes. Years later, even some of her supporters are cringing -- and her opponents are viciously making merry -- at the public disclosure of this correspondence and other writings from the 1990s.

Bush may have enjoyed being told by Miers in 1997, "You are the best governor ever -- deserving of great respect." But in 2005 such fawning remarks are contributing to suspicion among Bush's conservative allies and others that she was selected more for personal loyalty than her legal heft.

Combined with columns she wrote for an in-house publication while president of the Texas Bar Association -- critics have called them clumsily worded and empty of content -- Miers may be at risk of flunking the writing portion of the Supreme Court confirmation test, according to some opponents.

"The tipping point in Washington is when you go from being a subject of caricature to the subject of laughter," said Bruce Fein, a Miers critic who served in the Reagan administration's Justice Department and who often speaks on constitutional law. "She's in danger of becoming the subject of laughter."

[AmericaUnited]

"I know a few fantastic writers who are dumber than rocks."

You could pick just about any well syndicated liberal that has dysfunctional thinking.

[GraniteStateConservative]

Brilliant!

[pyx]

Over a twenty-year span in my profession of teaching both English composition and literature, I've taught thousands of students. To date, not ONE bright student failed to write coherently, even brilliantly, but, without exception, all of the poor thinkers invariably produced equally poor writing.

Simply put, as the mind works, so do the words tumbling out on paper (or on a word processor). Ms. Miers' mushy, unintelligible writing not only reveals a mushy, mediocre mind but also portends an embarrassing process. A "nice" woman does not an exceptionally qualified Supreme Court justice make. I, for one, hope she steps aside.

Regards . . . Penny

C-

You've used too many commas, mixed formal and informal verbiage and topped it off with unnecessary capitalization.

Learn the basics before throwing stones in a glass house.

[Wolfstar]

I presume that a number of the leading conservative candidates for the SC or on it are "weak in math." Almost every attorney I have know admits a failing in things technical. So what is the point?

The point is this:

(1) A great deal of the criticsm of Ms. Miers centers on her supposed lack of intellect, i.e., intelligence.

(2) Some things she wrote in social and organization contexts are being held up as examples of her supposedly weak intellect.

(3) IQ tests have long been used to measure at least two forms of intelligence: math and language skills.

(4) Ms. Miers has degrees in both math and law, which indicates that her IQ scores must be well above average.

(5) Conclusion: Ms. Miers cannot be as weak an intellect as her opponents wish to paint her.

[GraniteStateConservative]

Sir, I don't think you should go to this. You don't have time and it is not important. Let me know. XXXXXXXXXX

You'd make an awful cutesy secretary.

[mrsmith]

"Eunuchs complaining about being castrated "

Whoa, surely none of "the gang" are complaining Bush didn't put forth a proven conservative? I hope that power grab was roundly condemned by any conservative Senators who criticize this nominee.

Ironically here, any justice who sends abortion back to the states- and only a fool or idealogue wouldn't- will thus make it politically possible for even the most outspoken originalist to be confirmed. Which is what everyone wants.

[trubluolyguy]

"I am respectful of both of your great many time commitments and I realize you receive many, many requests," she wrote. "Of course, I would be very pleased if either of you is able to participate. However, I will be pleased with your judgment about whether participating in this event fits your schedule whatever your decision. . . . I feel honored even to be able to extend this invitation to such extraordinary people."

---

This, Lady 'bots and Gentle 'bots is what we mean by underqualified. No one...NO ONE who writes like this can possibly possess the mental accuity we were hoping for this nomination.

Most qualified my a$$ Mr. President.

[gpapa]

'dim view' on 'group think'

Liberals are addicted to group think. Conservatives can think for themselves. Some think Miers is qualified and some do not.

one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.

Especially compared to that supposedly "qualified" body of Senators.

[Racehorse]

We are looking for a smoking pen, and so far, and the only times we find her with ink on her fingers, she has been doodling love-notes to Bush and the bar association.

Wael, at least she didn't eschew them.

Can she write?  Does her bar journal column show a blunt intellect?

Sample comment from a trial lawyer's blog: 

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.

Why are the smoking pens so hard to find?  Visit the blogger's site:  A Westlaw Romp Through Harriet Miers Record

[SteveH]

I think everyone has made mistakes of this sort when they were preoccupied with more important matters.

Such as starting a women's studies program at one's alma mater? Yeah, right.

This is very common in those who are deep thinkers.

I would contend that we see who people really are -- insights into their true character-- at exactly the times when there is apparently little at stake.

I would want someone on the SC who is always hyper-aware of his or her legacy, and who pays attention to small details to ensure that everything is correct. Someone who is self-disciplined and shows it in spades in all of their work.

Whoever that may be, it evidently isn't HM.

Harriet Meirs-- please withdraw your nomination immediately. Thank you.

[SteveH]

Besides, after she's confirmed, she'll have a bevy of brilliant, eager beaver clerks to handle all that there stuff.

???

And so please remind me of your arguments why HM should be nominated if other, more brilliant people can handle "that there stuff" better than she can?

[GraniteStateConservative]

I know many, many very, very wealthy hedge fund managers that cannot write worth a darn. Same for several economists. Captians [sic] of industry.

Idiot savants are brilliant in their own way, too, but I wouldn't want them on the Court. Lawyers deal with words. Writing is a skill they must be superior at if they want to be considered superior in their field. Miers is a mediocrity who is superior at getting superiors to promote her.

[GraniteStateConservative]

Some of her comments are so juvenile, it's hard to believe the president fell for them.

Not really. I can easily see Bush as someone who enjoys the company of sycophants. He's very distrustful and having people like Miers around is comforting to him.

[GarySpFc]

The following email sent to Hugh Hewitt rebuts what some of you are stating. I have boldfaced the relevant part.

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

[GraniteStateConservative]

Exactly! Have the clerks do the details. Have the judge give a yea or nay.

Our bench is not so thin that we have to resort to nominating puppet-idiots.

[gpapa]

she'll have a bevy of brilliant, eager beaver clerks to handle all that there stuff

While she learns how to be a judge?

[GarySpFc]

Such as starting a women's studies program at one's alma mater? Yeah, right.
I would contend that we see who people really are -- insights into their true character-- at exactly the times when there is apparently little at stake.

I have news for you. My best friend teaches Greek at Perkins, and according to him Miers did not have one thing to do with setting up that program.

[TAdams8591]

I agree with you. The last reply was a subtle way of making the point.

The Miers nomination has revealed a number of traits most unbecoming to the president.

[AmericaUnited]

I would want someone on the SC who is always hyper-aware of his or her legacy,

Just what we need, some self-absorbed ego maniac... NOT!

and who pays attention to small details to ensure that everything is correct

Miers has been criticized for paying too much attention to make sure even the smallest details are correct. So... come again on that one.