Baseball Crank
Covering the Front and Back Pages of the Newspaper
October 11, 2005
LAW: Harriet Miers' Qualifications

Let's do a little Q&A on Harriet Miers:

Am I supporting or opposing confirmation of Miers?

For the moment, neither. As should be clear from my posts on this issue, I've been disappointed in the nomination, and I have serious concerns that might lead me to join the growing coalition of pundits and bloggers calling for the withdrawal or defeat of her nomination. But I could still be convinced that she has the right stuff to be a good Supreme Court Justice. For the moment, count me among the "show me" coalition.

Is Miers an unqualified hack?

Don't be ridiculous. Go read Beldar, who has been leading the effort to get the facts out in defense of Miers. This isn't Michael Brown here; Miers is a tremendously accomplished person. She had a long and successful career as a commercial litigator, representing numerous blue-chip clients and eventually being elected the managing partner of a 200+ lawyer firm and seeing it through a merger with another firm of similar size (Beldar well explains what this involves). She was also the president of the State Bar of Texas; as Beldar points out, membership in the State Bar is mandatory in Texas, and the bar and its presidency is a big deal within the state, even aside from the role it gave Miers in the ABA. And, of course, she's been a close advisor to the president for five years and White House Counsel for the past year. The staff secretary and White House Counsel jobs may not be glamorous, but they involve endless grueling hours; these are not jobs you give to a drinking buddy of the president. Miers' other experiences, heading the Texas Lottery Commission and being elected to the Dallas City Council, aren't big deals in political terms, but both involved real responsibility, and she juggled them while maintaining a full schedule as a practicing lawyer. And all this is particularly impressive when you consider that she was the first woman at her firm and, by all accounts, not someone who entered the profession with a lot of family or other connections.

So, yes, Miers has had an impressive career. She's hard-working and competent; she's unquestionably well-qualified to head a Cabinet department and clearly well-suited to be a district judge; and I wouldn't bat an eye if Bush appointed her to sit on a federal Court of Appeals. But the Supreme Court is different, and I do have real concerns that we haven't been given an adequate basis to conclude that Miers is qualified for a life-tenured position on a Court from which there is no appeal.

Aren't the objections to Miers just elitism?

First of all, if being an elitist means demanding excellence, I plead guilty. The "elitism" charge, to the extent it is backed up by any reasoning, comes from two quarters. Hugh Hewitt has argued that it's unnecessary to have Justices who have extensive constitutional law backgrounds, because Con Law isn't that hard; I address that below. And Beldar argues that people who sneer at Miers' resume are using an unduly constricted view of what experiences make up excellence in law practice - that there are plenty of great lawyers in private practice who didn't go to Harvard or Yale and haven't written law review articles.

I'd agree with that, in the abstract, but the debate here isn't about commercial litigators in the abstract, it's about one particular lawyer.

Let's make this clear:

I'm not bothered by the fact that Miers didn't go to an elite law school.

I'm not bothered by the fact that Miers didn't clerk for a prestigious judge.

I'm not bothered by the fact that Miers has never been a judge herself.

I'm not bothered by the fact that Miers has never written or said anything persuasive in public about the Constitution.

I'm not bothered by the fact that Miers' name shows up as counsel in barely more published opinions on Westlaw than mine, in three times as many years in practice.

I'm not bothered by the fact that Miers has, as far as I can tell, spent the vast majority of her time over the past decade away from the courtroom, doing things besides litigation.

But I am bothered quite a bit by all of those facts when taken together, and it's hard to think of too many examples of good Justices about whom all of those things were true. That's the source of unease here about Miers' qualifications - it's not one thing, it's the whole package taken together.

Doesn't Miers' experience as a successful commercial litigator qualify her for the Supreme Court?

This has been one of Beldar's big themes, but I just can't agree with him. As a securities and commercial litigator myself, of course, I have great respect for the complexity of a lot of commercial practice. And as I've stressed before, having a Justice experienced in practicing law at the ground level is a great thing. But just saying that she was a success in private practice doesn't answer the core question about her qualifications.

Beldar quotes people saying Miers was/is a sharp lawyer, good with juries and cool before judges. But what kind of sharp lawyer? You see, there are really three distinct skill sets involved in being a successful commercial litigator - being a "law" person, able to spot legal weaknesses in an adversary's position, make sense of complex or conflicting caselaw and assemble clear and concise arguments; being a "fact" person, good with live witnesses and juries; and being a good negotiator, skilled with the give and take that makes up the discovery and settlement processes.

But there are certainly plenty of people who succeeed as litigators without mastering all three. Any lawyer can tell you that they've been in a case with lawyers - as adversaries or co-counsel - who had big names, long track records of success, and big bank accounts, and discovered that their briefs or their arguments in court were sloppily reasoned and poorly presented.

We know Miers is said to be a good "fact" lawyer; the president and others have marveled at her skills in deposing witnesses. And the fact that she was named managing partner of her firm strongly testifies to her skills as a negotiator. But what we lack is proof of her skill at the legal reasoning and persuasion. A major part of a Supreme Court Justice's job is persuasion - persuading other Justices, persuading lower courts (who will decide how broadly or narrowly to read an opinion), persuading future Justices deciding to extend or overrule precedents. Where's the beef?

If Miers had been a judge or academic (or blogger) for ten years, we could read her stuff for ourselves and judge. And if she was a brilliant appellate advocate like John Roberts, we'd be hearing the same stories we heard about Roberts: his brilliance at oral advocacy, his ability to grasp complex cases with minimal preparation time, examples of great arguments he presented. But the simple fact that she's won a handful of complicated cases in 30+ years and moved up the professional ladder isn't proof enough by itself. I'm waiting for more.

Ultimately, where Beldar and I disagree is that I believe that not all successful attorneys who are good at trying cases and taking depositions are necessarily, simply by that fact, cut out for work as an appellate judge, any more than every appellate specialist is cut out to try cases. The best people can do both, yes, but that doesn't mean the skills involved are automatically transferrable.

That's why I would ask if we can learn more about Miers' private practice. Has she handled a large number of cases presenting complex legal issues, like nationwide class actions or antitrust cases? Was she regarded by colleagues and peers as an expert in particular areas of the law - i.e., was she interested in doing the work of making sense of bodies of law and keeping up on them and how they play out in different fact settings, rather than just grabbing the cases that help your position in today's case and then going her merry way? We don't know.

See here and here for more on Miers as a writer. More on Miers here (via Orin Kerr), here, here, here, and here.

Posted by Baseball Crank at 9:10 AM | Law 2005 | Comments (9) | TrackBack (0)
Comments

Well said. As Vincent Bugliosi has said, if most big time lawyers were to meet their reputations on the street, the two wouldn't recognize each other.

Posted by: PDS at October 11, 2005 11:43 AM

I agree that being a Supreme Court justice is just not the same as being a qualified lawyer...which is why I think her lack of judicial experience is the downfall, unlike what you say...I do have a problem with her not previously being a judge or a constitutional scholar...we do not know if she has the temperment or intelligence to handle the job...and given there are literally hundreds of qualified candidates, this seems like is a non starter...as much as I'd like to see a centrist and not an idealogue crazyperson, I would prefer someone with qualifications for the position at a minimum. Being a good lawyer is to supreme court justice what being a good college player is to major leagues...she doesn't have major league stuff...

Posted by: AstrosFan at October 11, 2005 1:27 PM

I don't trust anything George W. Bush has a hand in, but the real question here is What does this have to do with baseball?

Posted by: Lew Hartman at October 11, 2005 3:05 PM

Crank, I agree with pretty much everything you say, but I can't understand why you're still keeping an open mind. What could be shown that could change your assessment? Wouldn't we have seen it already?

I would add to your analysis that conservatives/originalists definitely DON'T want someone who's been a leader in the bar, either the state bar or the ABA. The legal establishment nowadays is solidly center-left and politically correct. Being a member is not disqualifying in my mind, but being a leader is.

Finally, I have a lot of respect for Hugh Hewitt, but I think he's beginning to lose it. Now he's relying on Lino Graglia's impressions of the conservative bona fides of Nathan Hecht for the conservative bona fides of Harriet Miers, whom he (Hecht, not Hewitt) has dated over the past decades. It pains me even to read that stuff.

Posted by: Attila (Pillage Idiot) at October 11, 2005 3:17 PM

Lew-
Over the last year or two, I'd venture there's more non-baseball than baseball around these parts.

Attila-
Crank seems to have momentarilly stopped sipping the Kool-Aid, but can't quite bring himself to put down the glass and walk away from the bar...

I'm kidding (sort of), there is really no reason to try and straddle on this in my opinion. In or out, Crank?

Posted by: Mr Furious at October 11, 2005 3:45 PM

Mr. F, be gentle with the man.

I forgot to mention, re Hugh Hewitt, that there seems to be a question about the meaning of "is" (or at least the meaning of "in the mold of Scalia and Thomas").

Here's the excerpt:

When Bush said "like Scalia or Thomas" many people heard many things. I think it is very safe to say that the vast majority of American voters did not hear "justices committed to a particular theory...of textualism or originalism." I think they heard "justices who aren't making stuff up," or "justices who aren't full of themselves," or "justices who will not impose same sex marriage or overturn every juvenille death penalty in the land or import EEC law on a whim."

I think they heard "results," and if I am right, Bush has not only not broken his promise, he may be well on his way to fulfilling it twice and hopefully more times over.

As I said, it's sad.

Posted by: Attila (Pillage Idiot) at October 11, 2005 3:55 PM

Has anyone pulled any briefs authored by her?

Posted by: Balasubramani at October 11, 2005 5:11 PM

At this point, Miers is going to need to start quoting Oliver Wendell Holmes when explaining her own judicial philosophy to convince me that she's the kind of person who belongs on the Supreme Court.

Posted by: Richard at October 11, 2005 10:26 PM

Cross-posted with the thread over at John Cole's:

Crank,

My apologies. My comment above [at Cole's] was probably too hasty and a bit harsh. It was based solely on your most recent post. I went back and refreshed myself on your earlier posts, and you have been pretty agitated over this—your Oct 6 post is particularly good.

OF course it makes your somewhat too accommodating position today (in my worthless opinion) all the more curious...

Anyway, it was wrong of me to bash you over here [at Cole's]. I did comment over at your place before here, but I try to temper my language a bit at your house, and it got the better of me here.

Posted by: Mr Furious at October 12, 2005 1:13 AM
Site Meter 250wde_2004WeblogAwards_BestSports.jpg