Take my lawyer - please

So Bush nominated his personal White House lawyer, Harriet Miers, to take the O’Connor seat on the Supreme Court, asserting that she is a top notch lawyer and a conservative whose heart he knows, though he does not recall ever discussing the subject of abortion with her. I don’t believe anything Bush says, so will wait to see how much of her heart Miers reveals in her confirmation hearings. The only opposition to Miers so far comes from some conservatives who are mad as hell because she is not a card carrying member of the right wing reverse Roe bar association, and they feel Bush has reneged on a promise to them because he is afraid of naming someone the Democrats will fight.

After a little research on Miers, I look forward to watching her handle herself before the Senate Judiciary Committee. She has a background more similar to that of most lawyers than to the new Chief Justice. She practiced law for many years in the same firm, doing the everyday office and trial work lawyers do. She also has been active in the administration of the law firm and in the Texas State Bar Association, serving as its President in 1992.

My law career started five years before Harriet’s, but the opportunities for women in the law were about as limited in her early years as they were in mine. My law school class at the University of Washington started with about a half dozen women out of well over 100 students. In our first year, I was fortunate to be assigned an appellate moot court case to handle as a partner with one of those women. She did very impressive research and contributed much more to our cause than I did, yet she did not return for the second year of school. In fact, as I recall, I think our third year graduating class only included three women - and no minorities, the one black and one Asian having dropped out after the first year.

Miers did not attend a top tier law school, but instead got her Bachelor’s and Law degrees from Southern Methodist. Her Bachelor’s was in mathematics, a field in which at that time as I recall, there were even fewer women than in the law. As for her cognitive skills, I don’t think there are many dummies with math and law degrees. I agree with Senator Reid that having a lawyer with much practical experience as an advocate and litigator should be healthy for the Court. I am sorry that her litigation experience has been basically representing corporations, but that is what most law firms do and that is what you have to expect in a nomination from a Republican President. I also agree with Senator Reid that the lack of Judicial experience can be a plus, as it has been for many Justices in the past.

Where Harriet stands ideologically is not clear. She has always been a Christian and for the last several years has attended an evangelical church, but she has left no trail of pronouncements of her personal positions on issues. She seems to value her privacy, which may be part of the problem conservatives have with her - they want someone who shoves her religious views on other people like a Jehovah’s Witness. They also seem to want someone better looking according to Keith Olbermann on MSNBC, because the website of Progress for America doctored her picture to remove the bags under her eyes.

Miers personally demonstrated her commitment to term limits, not running for re-election after one term on the Dallas City Council. When she got hooked up with Bush through her law firm, she worked on going through his background to spot potential problems for his intended political career, which included advising him on keeping his Maine drunk driving arrest under wraps. [Check out this interesting Newsweek article on how Alberto Gonzales helped keep the secret].

After he was elected Governor, Bush put Miers in charge of the State Lottery Commission, supposedly to clean it up through purge, though as this NPR piece on Miers at the Commission says, some Democrats say it seemed more to purge Democrats than corruption. The Lottery job was on the side, while she continued to practice law, but when Bush went to the White House, Harriet joined his team full time. Since her long time law firm had just merged with another and doubled in size, with Harriet serving as one of the managing partners, I wonder if her decision to join Bush was as much a decision to get out of practicing law and managing the new firm as it was to be a part of White House politics.

There has been flap over Miers, as President of the Texas Bar, writing a letter to the American Bar Association in 1992, urging them to back off their position of support for Roe, but her letter should be considered in context. The ABA had been going through much controversy about to what extent it should endorse Roe, which was then under attack, and the ABA position had just gone from neutrality to one supporting Roe. The letter from Miers urged the ABA to go back to the neutral position and to take a member poll on the issue before purporting to speak for the membership. In the few years, well before 1992, when I was a member of the ABA, I often resented the organization purporting to speak for me without polling me on my opinion.

What is hard for many non-lawyers to grasp is that lawyers in general, and especially judges, in the performance of their duties cannot let their personal views on issues affect how they do their job. It is fine for a lawyer to personally believe in the righteousness of the view of the client, but even if a lawyer doesn’t agree with that view, the lawyer has an ethical duty to fully represent and put forth the view of that client. Likewise, a judge has a duty to fairly apply the law, regardless of whether the judge personally agrees with the law. I fully expect that Harriet Miers understands these duties quite well and will so demonstrate to the Senate.

Miers has never been married, causing some to speculate about her sexual preference. I expect such speculation is something Harriet has been overhearing for many years, so perhaps it may be cause for her to be particularly appreciative of personal privacy rights. The fact is Harriet Miers may have, in effect, been married to the law, which is understandable for a dedicated female lawyer with a career of her tenure.

As with Rogers, I doubt the Senate will learn much about the personal legal views of Harriet Miers on specific issues, but it will be interesting to see how sharp she is and how adept at fielding challenges, especially since, unlike John Roberts, she may also get some from the Republicans. From what I have read, she was a tough litigator, so I expect she will handle herself quite well. It will be interesting to follow the hearings and see the outcome of the votes in the Judiciary Committee and in the full Senate.