Fat Steve's Blatherings

Tuesday, October 04, 2005

Hysteria Over the Miers Nomination

        I may exaggerate, but only a touch.  Bloggers are up in arms because the Prez didn't nominate their preferred candidate.  Only a few have stayed calm.

        Me, I've never been very excited about the Supreme Court.  I don't expect judges to follow the Constitution as it is written, and if they really did, they'd probably be impeached, since the U.S. citizenry doesn't want the Constitution followed either.  Further, trying to predict ahead of time how a candidate for Supreme Court Justice will vote is notoriously difficult.

        That said, let's try a calm, impartial look at Miers resumé, and see what we get find.

        Miers got an undergraduate degree in mathematics, went to law school at Southern Methodist University (widely regarded as the number two law school in Texas, says Beldar), served on its law review, then clerked for federal judge Joe E. Estes for two years.  She was hired by the firm Locke, Purnell, Rain, & Harrell.  She made partner in 1978.  In 1979, she was honored as the Outstanding Young Lawyer of Dallas by fellow members of the Dallas Association of Young Lawyers.  In 1985, she became President of the Dallas Bar Association, in 1989 she ran for Dallas City Council, won, and served two years, in 1992 she became the President of the State Bar of Texas.  In the late '80s or early '90s (I've seen both on the Web), Miers became Bush's personal attorney.  She was counsel for his gubernatorial campaign and his transition team when he was elected.  Once he became governor, Bush appointed her to a rather scandal ridden Texas Lottery Commission, which she helped clean up.  In 1996 her partners at Locke, Purnell, Rain, & Harrell made her President of the firm, which then employed around 200 lawyers.  In 1998 her firm merged with another large Texas law partnership, and she became co-Managing Partner of the new firm.  She was a candidate for the number two spot in the American Bar Association when W. won, but chose to go to Washington with him instead.  In the Administration she was staff secretary and then deputy chief of staff, before becoming Counsel to the President.

        Beldar also weighs in with comments based on his personal experience as a Texas trial lawyer.  The firm Miers worked for, he said, is among the best regarded in Texas, and the client list is full of very large corporations that could afford to hire anyone in the state.  "By objective standards, Harriet Miers has been among the few dozen most successful lawyers in private practice in the United States."

        To me, this all sounds like very good technical qualification.  Not everyone thinks that way, though.  Since Miers has never been a judge or a law professor, they find her only dubiously qualified to be on the Supreme Court.  She hasn't dealt with Constitutional Law, they say.

        I doubt that.  All kinds of litigation raises constitutional issues.  For instance, Cohen vs. Cowles Media was a suit brought against two Twin Cities newspapers for betraying a promise of confidentiality.  The papers in question tried to get the suit dismissed on freedom of the press grounds.  The case went to the Supreme Court, and a Minneapolis lawyer of little experience, working on his own, beat down some of Minnesota's biggest firms (see Anonymous Source by Dan Cohen, the plaintiff, and The Taming of the Press by his attorney, Elliot C. Rothenberg).  The idea that Miers spent thirty years practicing law, and four running a major firm, and never had to consider constitutional issues, strikes me as highly unlikely.

  Also, I have a story that bears on this point.  I was talking with my lawyer at a party, some years ago, and he said that when someone graduates from law school, the only job they are really qualified for is appellate court judge.  Because what they've been doing in law school is what an appellate level judge does: examine cases and see if the law was correctly applied.  The preferred career path for lawyers, in his opinion, would be appellate judge, than maybe after a while trial judge, and then, if you worked out at that, private practice, counseling real people on real legal issues.

        Put this all together, and add in the fact that a lot of Supreme Court justices have never been judges, you end up with someone who I feel comfortable with as far as professional qualifications are concerned.

        But of course, professional qualifications are not the issue.  The Supreme Court has become a part-time legislature, and the everyone is worried about whether Miers will legislate-from-the-bench the way they would like her to.  As I said, I don't get very het up about this.  What little information that is available suggests she'll be what passes, (falsely) as a strict constructionist nowadays.  That's OK with me.

        Miers has a lot of expertise in actually accomplishing things, as President of bar associations, a City Councilwoman, and a state official.  She's also been deeply involved in a White House at war.  That's a valuable perspective she brings to the court, if, like me, you agree that "The Constitution is not a suicide pact.

        Finally, one might note that one of Miers specific skills, as a trial lawyer, politician, president of a firm and bar associations, and in the White House, has been to persuade people to agree with her.  The Supreme Court could use a bit friendlier atmosphere, in my arrogant opinion.

        So.  Based on what I know now, I'd vote for her were I a Senator.  Perhaps the hearings will reveal something that will change my mind, but I doubt it.  And I think she'll be confirmed, too.



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