Monday, October 03, 2005

Harriet Miers: Even Better than O'Connor

President George W. Bush today tapped White House Counsel Harriet Miers to succeed retiring Justice Sandra Day O’Connor. Miers, who has been a trailblazer of sorts for women in the legal profession, would bring to the bench nearly thirty-five years of diverse legal, political and human experiences which few of her Supreme Court predecessors have possessed, including the woman she will replace on the Court. Disappointingly, many conservatives have already adopted a different standard for judging her qualifications than they applied to the newly appointed Chief Justice John Roberts. Let's take a closer look at why they are wrong about Miers.

After receiving a public school education, Miers attended Southern Methodist University in Dallas, Texas where she earned an undergraduate degree in mathematics and got her law degree. She was a good enough law school student to make law review and obtained a clerkship with Federal District Court Judge Joe Estes after she graduated. Upon completing her clerkship, she headed into private practice, which was not an easy task for a woman lawyer in the earlier 1970s. Through her perseverance, she became the first female partner at her law firm, and later became managing partner of the 200 person-firm, Locke Liddell & Sapps, which was quite an accomplishment for any female attorney let alone one in conservative Texas.

For nearly 30 years, Miers spread her wings as a well-accomplished and successful business litigator and anti-trust specialist, representing such heavy weight clients as Microsoft and Disney. A source personally familiar with Miers’ work as a Texas attorney told Advance Indiana that “she is even, compassionate, fair and perhaps the hardest working lawyer I’ve even known.” He added, “Her competence and character are beyond reproach.” Texas Supreme Court Justice Nathan Hecht, who hired her to work at his firm tells TIME magazine of her tireless work ethic and describes her as a conservative. Hecht said, “She's there at the office before anybody, and she's at her desk long after everyone leaves. She was known at the firm for being available to her clients, no matter what—early mornings, late nights, or last-minute cross country trips."

Along the way Miers, who has never married, maintained an active role in local, state and national bar associations. She became the first female president of both the Dallas and Texas Bar Associations. Again, in a state with a long history of discriminating against women, that is no small accomplishment.

As president of the Texas Bar Association, she urged the American Bar Association in 1993 to put its pro-abortion stance to a referendum of its members. This action on her part has been cited as evidence she opposes abortion, but that may be an unfair interpretation of her action. For many years, the non-partisan ABA took no view on the controversial abortion issue, but in 1992 it went on record in support of the constitutional right to an abortion. Thousands of conservative members across the country were outraged by the ABA abandoning its position of neutrality and adopting what they perceived as an increasingly liberal agenda. Miers’ request for a referendum may have been more of a reflection of Texas bar members’, regardless of political ideology, to have the ABA restore its position of neutrality on the politically divisive issue.

On the other side of the political spectrum, Miers is credited with supporting an ABA resolution supporting adoption by gay parents. Specifically the resolution read: Supports the enactment of laws and public policy which provide that sexual orientation shall not be a bar to adoption when the adoption is determined to be in the best interest of the child. That is not likely to make conservatives too happy who are already finding every excuse possible for not supporting her, but it may be an indication that she truly believes in the compassionate conservativism her boss is famous for espousing.

Miers also started her political career as a Democrat, which she maintained during the 1980s. It should be pointed out that the Republican Party did not become a viable party in the State of Texas until the 1980s. It had been a one-party Democratic state since Reconstruction. It is true that Miers contributed to Al Gore’s 1988 presidential campaign and a few other Democrats. But to put it into perspective, Republican Governor Rick Perry, then a Texas Democrat, served as chairman of Gore’s Texas campaign in 1988 before he switched parties and ran as George W. Bush’s lieutenant governor candidate in 1994.

Miers also ran and won one term as an at-large city councilor in Dallas in 1989. Not a lot has been made public about her views while serving on the council. However, a candidate questionnaire she purportedly completed for the Lesbian/Gay Political Coalition of Dallas states that she supported civil rights for gays and lesbians. She also indicated that she supported increased funding for AIDS and a legislative solution to address discrimination in housing and public accommodations based on a person’s HIV/AIDS status. According to her responses, Miers did not support a repeal of Texas’ sodomy law, which was eventually struck down by the U.S. Supreme Court in Lawrence v. Texas. She also stated in the questionnaire that she did not seek the endorsement of the organization, but she agreed to attend the organization’s steering committee screening session for council candidates nonetheless.

The interviewer’s notes from the meeting on March 28, 1989 may raise some more issues in that regard, but they are difficult to decipher. Further interpretation by the author would be needed to construe anything at this point. The Associated Press, which is touting Miers as supporting gay civil rights, quotes Louise Young, one of the persons who interviewed Miers as saying "Usually, if you bothered to come, you wanted our endorsement . . . She came to talk to us anyway. I thought that was very odd." Young added, "She didn't seem like a right-wing nut or anything like that."

Miers switched to the Republican Party in the 1990s after becoming a campaign advisor to George W. Bush during his 2004 gubernatorial campaign. Bush became familiar with Miers as a result of personal legal work she performed on his behalf. After becoming governor, Bush appointed her to the Texas Lottery Commission, where she received high marks for her 5-year tenure as a “tough, no-nonsense administrator.” When Bush was elected President, he tapped her first as Presidential secretary, a job which entailed screening all of his correspondence. She was later promoted to Deputy White House Chief of Staff and eventually as White House Counsel, the position she now holds. By all accounts, she has served in those roles very capably and undisputably with the full confidence and support of the President, with whom she has worked very closely.

In sharp contrast to Bush’s announcement of Roberts’ appointment, conservative activists, for the most part, have derided her appointment. The Daily Standard’s William Kristol said he was “disappointed”, “depressed” and “demoralized" by her appointment. Kristol said, “She has no constitutional credentials that I know of.” Pat Buchanan said he didn’t mean to “disparage” Miers,who he understood to be “a gracious lady who has spent decades in the law and served ably as Bush’s lawyer in Texas and, for a year, as White House counsel. But he added, “[H]er qualifications for the Supreme Court are non-existent.” The National Review’s Rich Lowry writes on a blog that he spoke to a Bush legal type who said of Miers: “Miers was with an undistinguished law firm; never practiced constitutional law; never argued any big cases; never was on law review; has never written on any of the important legal issues. Says she's not even second rate, but is third rate. Dozens and dozens of women would have been better qualified.”

The obviously different standard by which Roberts and Miers are being judged by conservatives is unmistakable. Because she didn’t attend prestigious prep schools or Harvard, somehow her education is not as worthy, no matter how well she exceeded as a student. While she hasn’t spent her entire adult life inside the beltway hobnobbing with the conservative elites and practicing only appellate law as has Roberts, Miers toiled away doing real lawyer’s work, as a business litigator, day in and day out. She knows what it's like to draft a complaint, interview and depose witnesses, conduct discovery, prepare for trial and actually try real cases, none of which Roberts has ever done. No, she hasn’t argued cases before the Supreme Court, be she has argued plenty of cases before state courts in Texas.

By all accounts, Miers rose to the top of her profession in Texas. And, unlike Roberts, she had to overcome discrimination to obtain her well-earned status as a top-flight litigator. When you compare the obstacles she faced in getting ahead in the legal profession dominated by the good ole boy network to the cake-walk Roberts had as a white, male graduate of Harvard, it is beneath reproach to suggest that she is somehow less prepared or less-qualified than Roberts to serve on the Supreme Court.

Unlike Roberts, she has stood election before the voters where she had to take public positions on potentially controversial issues, and where there’s no hiding behind Roberts’ often repeated refrain that his past controversial writings reflected the views of the President he served and were not necessarily his personal opinions.

No, she has never been a judge. But that is not a requirement for the job. What she lacks in judicial experience, she more than makes up for in practical and substantive experience practicing law for more than three decades, which is more than can be said of most of the current members of the Court. And conservatives never complained that Chief Justice William Rehnquist had also never served as a judge prior to joining the Court.

Let’s face it, conservatives in the Republican Party are scared to death of an independent 60-year old woman who has never been married. Anyone who doesn’t conform to their narrow-minded stereotypes of how a person should lead their life is automatically suspect. Harriet Miers’ qualifications are every bit as equal to those of Roberts’, and her qualifications are, without doubt, greater than those of Sandra Day O’Connor, who has served respectably and ably as the nation’s first woman Supreme Court justice. Advance Indiana does not doubt that Sandra Day O’Connor is smiling tonight about her replacement, and so should the American people.


Anonymous said...

Thanks for your insightful information on Miers. You have definitely presented a different view than is being presented in the main stream media.


Kay said...


As you pointed out, Miers’ has significant professional credentials. And, the mere hint that she may be opened minded regarding queer issues is certainly encouraging.

However, my greater concern is her lifetime career as a big business litigator. Can you give us any insight concerning her judicial philosophy on the subject of, say, privatization?

Advance Indiana said...


I don't follow your inquiry about her position on privatization. It's probably a better question to address to Mayor Peterson, who turned the keys of our water department over to some French company that doesn't seem entirely concerned about water quality. As a practice, it's permissible under federal, state and local laws in varying degrees depending upon the government service in question. The only constitutional limitation that comes to mind is turning a government service over to a religious group.

Kay said...


Yes, I see now how my inquiry concerning privatization was way too broad. So far-reaching, in fact, it provided the perfect setup for your deflective dig on Peterson. And, of course, my back-at-ya reminder that it was Goldsmith who first initiated the ‘practice’ using the city’s wastewater treatment facility; some would say, a real stinker.

Back to Miers’ nomination and any known position she may have taken on the practice of privatization. For example, the 2002 Supreme Court ruling on education vouchers (Selma v.Simmons-Harris)?

Advance Indiana said...


You knew I couldn't pass that one up. Any way--I assume you are referring to the Zelman decision that upheld public school vouchers for religious schools in Cleveland. I'm assuming Miers would probably have voted with O'Connor and the majority on that one. I don't like the idea of public funds going to religious groups (by the way--it is specifically prohibited by the Indiana Constiution so the decision didn't affect us). But in this case, I wouldn't think the religious folks would have liked it either. That particular program subjected the religious schools to all the prohibitions that apply to public schools. As crafted, it was purely a secular purpose. By participating, the religious schools give up their freedom to indoctrinate their students at will, and can't discriminate among who attends the school as they otherwise can. I remember when the issue was before the Illinois legislature when I worked there, several very conservative members opposed school voucher programs for this very reason--they didn't want any government regulation of their religious schools. I see why people would oppose the program as a violation of the Establishment Clause, but in this case, the schools in effect stripped themselves of their religious stripes in order to get the money.

Kay said...


(Yes, I did mean to type Zelman. Thank you for the correction.)

Briefly, (and because I’m so hugely unskilled, lol) I’ll use excerpts from a respectable source/article to clarify:

"In key 5-4 church-state rulings by the Court over the past two decades, O'Connor provided that critical swing vote. O'Connor drew the line at government endorsement of religion. And she consistently warned that any direct funding of religion by government was a serious violation of religious liberty.

By contrast, Rehnquist had a hard time finding "separation of church and state" anywhere in the First Amendment. Among other things, this (his) interpretation would mean that the government could aid religion - as long as it didn't discriminate among religions.

If a Roberts Court does adopt the Rehnquist view of the establishment clause, what remains of Jefferson's wall - already battered and full of holes - may crumble entirely. Current limits on government-sponsored religious expression will probably be weakened or removed."

This was written prior to the Miers nomination; however, I would think the argument is as applicable to Miers—that both Roberts and Miers will adopt Rehnquist’s view of the establishment clause—supported (imuo) with the fact that faith-based-initiative Bush nominated them both.

Further, while opining that you “wouldn't think the religious folks would have liked it either,” I disagree, having read that when the oral arguments were heard it was shown that 46 of the 56 participating schools were church-affiliated. That 33% of the students were previously enrolled in private schools; 21% were previously enrolled in Cleveland city schools; and the remaining students were newly enrolled kindergartners or came from outside the district. (Policy Matters Ohio)

In short, what I should have asked: Just how closely do you think Miers judicial philosophy (read: discriminating values) agree with Bush’s (form of capitalism and political ideology)?