Thursday, October 27, 2005

The Answers, part 2.

This is from the 10/27/5 answers. Part of one paragraph has spaces between letters. That is how it was. Hopefully I will get a better source later.

The approach is simple. Put these in the middle. Make it seem as dull as possible. Withdraw before they are read.

17. Mortenson v. Locke Liddell & Sapp LLP, No. 99-12003 (126 th Judicial District, Travis County, Texas) (1999). This class action was filed by the receiver of Austin Forex International, L.L.C. (“Austin Forex”), a former client of the firm and its predecessor, Locke Purnell Rain Harrell, P.C., on behalf of itself and other named and unnamed class members who had invested in Austin Forex and related companies. The action alleged that Locke Liddell, various other law firms and accounting firms, and individuals at those firms knowingly assisted Russell Erxleben, the founder of Austin Forex, in perpetrating a complex fraudulent scheme involving foreign currency trading. The complaint alleged that Locke Liddell had assisted Erxleben in perpetrating his scheme and asserted causes of action for fraud, negligent misrepresentation, and other violations of state securities and common law. The firm denied liability, but settled the case out of court for a sum of $23,696,000. To the best of my recollection, I did not participate in the firm’s representation of clients in the matters which are the basis for the allegations set forth by plaintiffs’ counsel in this complaint. During my tenures as Co-Managing Partner of Locke Liddell and President of Locke Purnell Rain Harrell, the firm improved its precautionary ethics measures, which included ethics briefings for all incoming lawyers, periodic (generally annual) ethics training for all lawyers, and distribution of written ethics materials. The firm also instituted tighter restrictions on client intake, including approval of new clients by senior lawyers in the firm, a Dunn & Bradstreet fraud check on new clients, mandatory engagement letters, and use of a new file opening form that specifically inquires about whether the client manages investments on behalf of others. The firm also has a conflicts/risk management committee with easy “walk-in” access comprised of partners in each city, and across varying practice areas, to which lawyers are encouraged to report concerns about ethics issues.

1 8 . I v o r W o l f s o n C o r p o r a t i o n S A v . L o c k e L i d d e l l & S a p p L L P , P h i l l i p W y l i e , R e f c o S e c u r i t i e s , I n c . a n d J o n a t h a n S l a v i n ' N o . 9 9 - C I V - 1 1 4 7 1 ( U n i t e d S t a t e s D i s t r i c t C o u r t f o r t h e S o u t h e r n D i s t r i c t o f N e w Y o r k ) ( 1 9 9 9 ) . T h i s c a s e c o n c e r n e d a l a w s u i t s e e k i n g $ 4 8 . 6 m i l l i o n i n d a m a g e s o w e d t o p l a i n t i f f s b y B r i a n S t e a r n s , a f o r m e r c l i e n t o f L o c k e L i d d e l l . P l a i n t i f f s a l l e g e d t h a t a f o r m e r p a r t n e r a t t h e f i r m , P h i l l i p W y l i e , h e l p e d S t e a r n s d e f r a u d t h e m . S t e a r n s a l l e g e d f r a u d c o n s i s t e d o f o b t a i n i n g l o a n s o f $ 2 0 m i l l i o n f r o m I v o r W o l f s o n a n d $ 6 m i l l i o n f r o m T r e m m e r o n a p r o m i s e t o r e p a y t h e m $ 4 0 m i l l i o n a n d $ 8 . 4 m i l l i o n , r e s p e c t i v e l y , a n d t o s e c u r e t h e f u l l a m o u n t s d u e w i t h a m a r k e t a b l e s e c u r i t y , w h e n S t e a r n s k n e w t h a t h e h a d n o s e c u r i t y t o p o s t . P l a i n t i f f s s o u g h t t o r e c o v e r t h e f u n d s f r o m L o c k e L i d d e l l , a l l e g i n g t h a t t h e f i r m k n o w i n g l y a n d a c t i v e l y a s s i s t e d S t e a r n s i n t h e
commission of his fraud. Locke Liddell denied these allegations in court. This matter was resolved by confidential settlement. To the best of my recollection, I did not participate in the firm’s representation of clients in the matters which are the basis for the allegations set forth by plaintiffs’ counsel in this complaint. (For a description of the precautionary ethics measures in place at Locke Liddell, see above description of Mortenson v. Locke Liddell, case 17.)

19. Janet Mortenson, Permanent Receiver for Trans-Global Asset Management, Brian Stearns, v. Locke Liddell & Sapp, LLP & Phillip Wylie, No. GN-002674 (53rd Judicial District Court, Travis County) (2000). This class action suit was filed by Janet Mortenson, in her capacity as the court-appointed permanent receiver of several companies owned by Brian Stearns, the former Locke Liddell client mentioned above (see case 18, above) who, prior to his arrest in the fall of 1999, held himself out as a successful trader of medium-term notes. The suit also represented a class of investors who were defrauded by Stearns with the alleged assistance of Locke Liddell. Plaintiffs alleged that Locke Liddell engaged in securities fraud, sale of unregistered securities, aiding a breach of fiduciary duty, conspiracy, and negligent misrepresentation, in violation of Texas law. It was alleged that Phillip Wylie, the former Locke Liddell partner, took money from investors and placed it in the firm’s IOLTA account, as a conduit to transfer the money back to Stearns, rather than using the funds to purchase legitimate securities, as had been promised. Locke Liddell denied the allegations, and the litigation was settled out of court for $8.5 million. A subsequent intervention in this case (captioned Brady National Bank v. Locke Liddell & Sapp LLP) was resolved by confidential settlement. To the best of my recollection, I did not participate in the firm’s representation of clients in the matters that are the basis for the allegations set forth by plaintiffs’ counsel in this complaint. (For a description of the precautionary ethics measures in place at Locke Liddell, see above description of Mortenson v. Locke Liddell, case 17.)

The mandatory withdrawal.

Miers could not fully answer the questionnaire without disaster. The Locke suit could not be explained.

It was not ignored.

She could not respond.

She withdrew.


Miers did respond very late on the due date, just after the decision to withdraw was finalized but before it was announced. Why? I wonder if anyone really knows. It was probably for a variety of reasons. My primary guess is that it provided a kind of cover. If she had not responded, people might look at those questions and speculate that she could not, or would not, answer. The actual answers would give rise to more detailed questions, but the withdrawal means that there will be no more questions. Miers can say she answered. Still, there is some interesting information in the answers. I will post excerpts separately.

Wednesday, October 26, 2005

Harriet Miers Hearings

Hearings will, for the Democrats, be a chance to discuss:

Bush and Miers


lottery, national guard, and corruption

tax cuts and tax shelters for the rich

negligent misrepresentations that enable a Ponzi scheme & stealing from the middle class

negligent misrepresentations that enable another Ponzi scheme & stealing from the middle class

trust accounts used too facilitate crime, in violation of a zillion rules

The Cs. Crony. Corruption. inCompetence.

It will basically be about Bush. Miers will be the hammer.

Democrats are salivating.

That is why, if Republicans have any sense at all, there will be no hearings.

This is not new, but some of you are new to this blog.

Tuesday, October 25, 2005

"Get me out of here."

Does Senator Sessions write the script for Harriet Miers? If not, he should.

New York Times
October 26, 2005

Asked if the debate had become "one-sided," with too few defending Ms. Miers, Senator Sessions, the Alabama Republican, struggled for words, then pushed a button for a nearby elevator in the Capitol building and told an aide, "Get me out of here."

Does Professor Bainbridge Still Think it was a Malpractice Claim?

The blogosphere, having discovered the Chicago Tribune article on the Locke settlement
has two misconceptions:

(1) sealed files means that no information is available and the facts cannot be found outside those files
(2) it was a malpractice case.

Neither is true.

It was about the Texas Chicken Feed Tort of Negligent Misrepresentation.

Juicy facts can be found. Easily.

And they will be found.

When will the good professor find them and announce them to the world?

Maybe we should bet him a glass of wine. Find it by Halloween and he wins. If not, he treats. Must he know about the bet for it to be binding?

Monday, October 24, 2005

The revised Questionnaire answers of Harriet Miers

Have you seen the revised answers to the Senate questions?


Will she ever provide them?

What if they would hurt her chances?

Will she withdraw without answering?

She needs to do so.

Sunday, October 23, 2005

Status Without Substance

Can we say that for most of her adult life, Miers sought roles that had status without substance, such as bar president and lots of groups that talk, announce, and tell others what they should do.

Harriet Miers, attorney

Would you hire Miers to represent you?

Do you want her as the attorney for the President?

Harriet Miers Writes Wrong

The Miers writings are bad prose, but my overall reaction is that she is generally wrong on the substance.


She does not use the right wording for a will. (See prior post.)

She says she is writing in, and only in, her capacity as a former bar president. But there is no capacity of that sort. It is history, not capacity. She might have written only in her individual capacity, but her language excluded that. Her specific language was specifically wrong. (I think I said more on this in a prior post.

She says her Microsoft case was about the interplay between Texas and Federal class action rules. But Texas rules follow Federal rules. Interplay? No. This is either a poor understanding, poor writing, or a disingenuous effort to portray her record as having experience suitable for SCOTUS. The truth, that it was about a Texas rule that is the construed as the same as the Federal rule would suffice. But interplay? Not the right concept.

Item after item, important or not, she just keeps getting the substance wrong.

How can a SCOTUS nominee be wrong, and we can be right, about her history and cases? Amazing.

Harriet Miers Should Not Have This Job

Miers should not be in charge of selection or screening of Judges and Justices.

She is not up to understanding the substance.

She can judge based on her personal preferences.

She is completely unqualified.

Roberts was good because he was good. He was supported by great fans, such as the then Chief Justice.

Other than Roberts, Miers apparently was involved in very few selections.

Everything she did should be ignored. If she rated a candidate poorly, get out the file, redo the interviews, and do it over.

Were the other SCOTUS candidates rejected because they did not think and write and have background like Miers?

Do Over!

Short Term Politics And The Supreme Court Pick

Assume Miers withdraws now.

Assume a new nominee is named October 29.

What is the interesting political move?

Luttig or Alito.



There are two major elections in November.

State officials are elected in Virginia and New Jersey.

Governors and legislatures.

Luttig went to college and law school in Virginia, and is based in Virginia.

Alito was raised in, went to college in, and has chambers in New Jersey.

Both are A list candidates.

Virginia has a very close governorship election. A toss up.

New Jersey is close, with the Democrat ahead by perhaps 5% to 10%.

If politics is a factor, appoint a Justice - elect a Governor!

What do you think?

Update 10/23/5

Are there others from Va. and N.J.? Sure. Substitute as you desire. Wilkinson is one with ties to a newspaper. Not bad:


Judge Wilkinson was appointed to the Fourth Circuit by President Reagan in 1984. Before his appointment he was the Deputy Assistant Attorney General, Civil Rights Division from 1982-1983. From 1978-1982, he worked as the editorial page editor of the Virginian-Pilot in Norfolk, Virginia. From 1973-1978, he was a professor at the University of Virginia School of Law. Prior to law school, he served in the army from 1968-1969.

Judge Wilkinson attended Yale College and the University of Virginia School of Law. After law school, he clerked for Justice Powell.

Judge Wilkinson is 60 years old. He and his wife have two children.

Saturday, October 22, 2005

Good Characteristics of a Supreme Court Justice Nominee

Diversity? Sure. A good thing, if we are not carried away.

So, these are some good things to consider, among many, when choosing a Justice:

(In no particular order.)

1. Geography. Two seats held by Justices who experienced life in the western states both opened this year. A westerner would be good. Texas is fine, or Colorado, Utah, Washington state, Alaska, or Hawaii. There are differences if outlook and attitude in different areas. Justices spend most of their time in the D.C. world. A justice from Cody Wyoming might bring insights and balance. And what about the South? Would a Southern Bell from South Carolina have different experiences? Sure.

2. Schools. Harvard and Yale are overrepresented on courts at all levels and in the D.C. power elite. Enough already! SMU is good, as would be Auburn or Arizona, Baylor or Brigham Young, Carolina or California, Drake or Duke, Eureka or Eastern Kentucky, and the list goes on. Endlessly. The two departing justices were classmates at Stanford. Good enough, because it is not too common among the D.C. elite. But it would be better if one had gone to Arizona.

3. Sex. Another woman is better than another man.

4. Race/religion/cultural/nationality background. Add in any other factors along this line. An immigrant from Cuba, Vietnam, or Mexico? Why not? I like that idea. But, they would have to be very serious about this country, our history, and law. Immigrants or the next generation would be good element to mix into the court. Black, oriental, Hispanic, or whatever. Differences are good. Religious diversity is good too. An evangelical would be good to have on the court. But there are many religions that are not represented on the court. Atheist, Hindu, Muslim, Buddhist. . . The list is long, and it is hard to know how to assess religion as a factor. There is the Constitutional religious test prohibition, but religion has been a factor. Some variety is good.

6. Age. Another younun like the Chief would be good. Maybe one younger. But, maybe the lifetime term makes their tenure too long. Would it be nice to have a 45 year old with one 15 year term? I think so. As it is, we must go young for the youth or old to prevent extreme tenure. Not a perfect choice.

7. Experience. There are many paths. But perhaps they should all go through the federal court of appeals, just for practice. Roberts had two years on the D.C. Circuit. That seems perfect. A newly elected President can appoint SCOTUS candidates to courts of appeals, not just to see how they do, but to get their feet wet. It may not give enough time for much of a record, but they will learn a great deal. That experience is a huge plus. But if it is too long, there were not enough years for other experience. Experience in law is good. Here the example that impresses me is the Justice from Arizona. She practiced in a small office representing regular folks with regular problems. That is the pinnacle of law practice, and far better experience that practice in a huge firm. A general practice would be ideal. Some family law, contracts, wills, estates, criminal prosecution and defense, and civil disputes, trials, and appeals. Few get that varied experience now. That is too bad. Is writing a will for Walt Smith less impressive than repeatedly representing Walt Disney in Texas by claiming that it is not a Texan? I think not. I like lawyers representing people, not just entities. Teaching law would be a plus, with a variety of courses ldeal. But, also teaching first grade, high school government, or Sunday school. We learn from our experiences. Writing for a newspaper, or a high school newspaper can allow us to learn the skill of writing, thinking, and organizing thoughts. How do you describe the pass the quarterback threw that won the game? Do you use the word cabin, saying the defense cabined the quarterback? If so you write like many of the current justices. Is your writing designed to communicate, or to impress? Is it about you, or the substance? Too often the elites write to impress others with their sophistication. Cabined? Nuts! If you can write a good newspaper story, you might be able to write a good opinion. Can the same be said for a law review article? What about farming and practicing law at the same time, preparing income taxes, appraising houses, flying an airplane, prosecuting and advising local government. One lawyer can do all that at the same time. I have known one who did.

Just 7 factors. Among 100s to consider. Worth pondering.

Friday, October 21, 2005

The Harriet Miers Dream Job, after more reflection

Harriet Miers has a history of achievement.

Look at the history to see what she is good at doing, and how she uses her ability.

From her history, her questionnaire answers, reading about her cases and her reported interview failures on Capital Hill, we can see the pattern.

She appeared to be a fine lawyer. A big time trial lawyer.

But she is not, and was not, a great lawyer. She was not a big time trial lawyer.

She had barely any trial history, barely any appellate lawyer history, and barely any success in those settings.

What does that tell us? She is a wonderful salesman. Although she was not much of a lawyer, she convinced people that she was a fine lawyer.

What did she do at her law firm? She was a rainmaker. She was a salesman. She brought clients in the door. Others did the legal work. She was a gladhander.

What does a law firm do with a lawyer like that? One option is to give them a big title and a big office, with tasks that are suited to their ability. And tasks that keep them out of the way while the lawyers practice law.

Miers was head of the firm.

What did she do? She represented the firm in the legal social world. She went to ABA meetings and was an ABA activist. She went to DBA meetings and was a DBA activist. She went to SBOT meetings and was an SBOT activist. She spoke to people in person, and on the telephone. She wrote letters and birthday cards. She was a well wisher, wishing people well. She was a superb politician in bar activities. She moved up the ranks.

She was the contact person for clients, organizations, and causes. Causes that were not controversial, that is.

She never said a bad word about anyone. She avoided controversy in all areas.

She should do what she does well and likes.

She should not take a job that requires reading, writing, researching, and thinking, away from the public.

She should not be on the Supreme Court, which is a classic mismatch for her talents.

She should be head of the Bush Presidential Library, based at SMU, with minor branches at Baylor, the University of Dallas, and Midland College.

That is the job that fits her like a glove.

Fundraiser, gladhander, head of the organization.

Based in Dallas, but traveling the world as needed, and as desired.

Hanging out with the important people who are important in her world.

Avoiding the people who are important in the very different world of the Supreme Court.

Going with the Bushes to Rangers games, not going with Justice Souter to Nationals games.

And for her, probably the dream job, and far better than being on the Supreme Court.

Thursday, October 20, 2005

A Bush Presidential Library Proposal

Someone will be the head of the Bush Presidential Library, which may be at SMU.

This is the ideal job for Harriet Miers.

A long winter for Harriet Miers

"If the questions are not answered or their answer is incomplete, as they have been, then it's going to be a long hearing indeed," Mr. Leahy said.

Knowing more than Harriet Miers

I also wondered why I knew more about her cases than she did. I guess everyone who reads a bit, and has background, does.

Washington Post:

At yesterday's news conference, Specter appeared to be annoyed with Miers on several points. He said his staff gave him a "big binder" of legal cases she had handled in private practice, but "she gave us a skimpy little group" of material describing those cases in response to the questionnaire's request for details of her most important cases. "No reason we should know more about her cases than she does," he said.

Specter said he remained perplexed by a disagreement Monday stemming from his meeting with Miers in his office, after which their accounts differed on what the nominee had said about Supreme Court rulings that preceded Roe .

In dealing with 11 Supreme Court nominees, Specter said, "I've never walked out of a room and had a disagreement as to what was said." He smiled politely as Leahy said, "I've never known him to make a mistake on what he heard."

Meanwhile, several constitutional law scholars said they were surprised and puzzled by Miers's response to the committee's request for information on cases she has handled dealing with constitutional issues. In describing one matter on the Dallas City Council, Miers referred to "the proportional representation requirement of the Equal Protection Clause" as it relates to the Voting Rights Act.

"There is no proportional representation requirement in the Equal Protection Clause," said Cass R. Sunstein, a constitutional law professor at the University of Chicago. He and several other scholars said it appeared that Miers was confusing proportional representation -- which typically deals with ethnic groups having members on elected bodies -- with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations.

An Easy way Out for Harriet Miers

The Senate wants White House documents.


But, because of the natural institutional clash, withdraw.

Then it is not about Miers.

She puts the country ahead of herself.

Wednesday, October 19, 2005


A powerful court has been a friend to the liberals.

What happens if hearings and charges of crooked corrupt judges hurt the image of the court and it loses power?

The court has no power other than the power to influence.

Without respect and obedience, it is impotent.

Will liberals hurt their cause if they destroy Miers?

Will they back off and just defeat her, without a full attack?

Get ready, A Team

If you are one of the A Team prospects for the Supreme Court, Get your answers to the questionnaire ready now.

Great Minds Think Alike

Three minutes after posting my prior post, I saw this. The White House and Senate Republicans do not yet get it. Novak is on the trail. He has not yet found the Texas Chicken Feed Tort of Negligent Misrepresentation, but he probably will.

The vulnerable nominee
By Robert Novak

Oct 20, 2005
Syndicated columnist

WASHINGTON -- George W. Bush's agents have convinced conservative Republican senators who were heartsick over his nomination of Harriet Miers to the Supreme Court that they must support her to save his presidency. But that does not guarantee her confirmation. Ahead are hearings of unspeakable ugliness that can be prevented only if Democratic senators exercise unaccustomed restraint.

Yet, Novak only has part of the story. Still he presents an interesting concept. Does he say, under oath? He does.

 Will the Judiciary Committee Democrats insist on putting under oath two Texas judges who are alleged to have guaranteed during a conference call of Christian conservatives that Miers would vote to overturn Roe v. Wade? Will the Democrats dig into Miers's alleged interference nine years ago as Texas Lottery Commission chairman intended to save then Gov. Bush from political embarrassment?

 Officials charged with winning Miers's confirmation told me neither of these issues is troublesome, but in fact they suggest incompetence and neglect by the White House. To permit a conference call with scores of participants hearing close associates of the nominee predict her vote on abortion is incompetent. To nominate somebody implicated in a state lottery dispute in the past without carefully considering the consequences goes beyond incompetence to arrogant neglect.

The clueless ones are still clueless.

 President Bush was not originally prepared for the negative reaction from the Republican base when he nominated White House Counsel Miers, his longtime personal attorney. Former Republican National Chairman Ed Gillespie, leading the confirmation campaign, over two weeks convinced skeptics that Miers is conservative enough. Whatever her qualifications, dubious Republican senators after hearing from Gillespie decided they could not deny his chosen court nominee to a president on the ropes. Bush has solidified Republican support not because he is strong but because he looks weak.

 Miers remains so shaky, however, that she may not be able to survive confirmation hearings that go beyond sparring over how much of her judicial philosophy she will reveal. That is why John Fund's column in Monday's Wall Street Journal chilled the president's backers. He reported a conference call with religious conservatives Oct. 3, the day the Miers nomination was announced, that indicated a lack of White House control over the process.

 Fund wrote that Texas Supreme Court Justice Nathan Hecht and U.S. District Judge Ed Kinkeade, on the conference call, flatly predicted that their friend Miers would rule against Roe v. Wade. Although the two jurists deny that, I checked with two sources on the conference call who confirmed Fund's version. That raises the possibility of bringing two judges under oath before the Senate committee to grill them on what they said and what Miers told them.

But, that is the easy part.

 The possibility of the Lottery Commission controversy being the subject of confirmation hearings is even more daunting for the White House. The story now is only being printed in alternative publications, such as the Dallas Observer of Oct. 13. These reports recalled the lawsuit brought by Lawrence Littwin alleging that Chairman Miers fired him as the Lottery Commission's executive director because he had uncovered corruption involving Gtech, the lottery management firm.

 Littwin's federal suit claimed Miers protected Gtech because its lobbyist, former Lt. Gov. Ben Barnes, as Texas House Speaker had pushed Bush ahead of other applicants for the Texas Air National Guard during the Vietnam War. Democrat Barnes had been silent until a 1999 deposition by him said he had pushed young Bush to the head of the line. Barnes, who received from Gtech $3 million a year and $23 million in separation pay, told me that the Bush Air National Guard story has "absolutely nothing" to do with his settlement. Littwin is silent under terms of a $300,000 settlement ending his suit. Former Texas Chief Justice John Hill, a member of the Lottery Commission at the time, told me: "There is no substance at all to these charges." Miers handled the case "with care and judiciousness," Hill added.

 Whether Barnes and Littwin will be subpoenaed to rehash these charges is in the hands of Judiciary Chairman Arlen Specter. The White House saved him from defeat in the 2004 Pennsylvania Republican primary and did not try to keep him from becoming chairman this year. But nobody expects Specter to grant forbearance for the president's lawyer.

As of today, it is still up to the Democrats. While the conservatives focused on abortion, the Democrats quietly prepared to use the hearings to label Miers, Texas lawyers, and President Bush crooks.

If the Republicans do not clean this up with a withdrawal, followed by the nomination of someone as qualified, experienced, and squeaky clean as the Chief Justice, they are depending on the kindliness of the Democrats.

Even if the Democratic Senators want to cover up for Miers, the left wing blogosphere is unlikely to make that easy.

Not after the Bush/Miers Christian and Abortion public relations campaign.

The problem for the Democrats was that Miers is a woman. It is not nice to attack a woman.

But, after the last two weeks, and more, it may be easy.

Must Harriet Miers Withdraw by Monday?

Harriet Miers can withdraw with good grace and dignity.

Soon it may be too late.

The general public still has a good impression of her as a person.

After the hearings that may not be true.

Before hearings there are issues of disclosure, and refusing to disclose.

There are lots of little things, and some big things.

There is still time to choose to withdraw, before withdrawal must occur.

How long?

Crazy 8s Harriet Miers Strikes Senate Staffers

The real Miers problems are starting to surface.

She is hiding stuff.

Is she really inept, or is it a strategy to divert people from the big stuff?

Will the hearings consist of the theme: not a crook, merely inept?

Senate Judiciary Committee asks Miers for more details
Chicago Tribune

Staffers . . . were struck by the cases she listed because the questionnaire had asked her to include all litigation in which she had participated. Senior Republican aides on the Judiciary Committee did a quick search on the Internet and found a page and a half of additional cases.

"In a good hour's work, they found a couple pages of stuff that had not been listed - and it wasn't like an in-depth investigative search. It was just your normal, `Hey, let's see what we can find,'" said one senior Republican committee aide.

The Miers answers listed 8 cases. We had already reported our thoughts on cases that were not listed. Weird, huh? The Senate committee had the same reaction.

Why did Miers leave out cases?

Was she hiding them?

Not possible, you say?

She clearly was hiding things like the civil suits against Locke that were settled for millions, which had been reported in newspapers, and formed part of the basis for a Texas CLE course on The Texas Chicken Feed Tort of Negligent Misrepresentation that has been available on the internet for years.

She was on an advisory board for Martindale Hubbell Lexis/Nexis.

Did she believe no one would ask about her missing cases or The Texas Chicken Feed Tort of Negligent Misrepresentation?

Perhaps she is an optimist.

She was thought to be:

a very good trial lawyer

very ethical

a detail person

picky about punctuation, grammar, writing, form


In two weeks, she has convinced the Senate committee that:

she is not truthful when they talk to her

the chairman now wants a recording of conversations

Specter, a former prosecutor, said Wednesday that in his years of meeting with Supreme Court nominees, he'd "never walked out of a room and had a disagreement as to what was said."
"The sooner we get into a hearing room where there's a stenographer and public record, the better off the process is," Specter said.

she is not a detail person
she cannot write well
she is not good with punctuation or grammar
she misunderstands law
she lacks substantive background in the stuff the Supreme Court deals with
she is not complete, truthful, or respectful when asked to file complete answers to questions

"On the balance of her answers, they're incomplete," said Specter, noting she had only provided a "skimpy little group" of cases she had handled.

Wednesday's letter to Miers went far beyond the routine follow-up questions often put to nominees by individual senators. It asked for a wholesale re-examination of the questionnaire, noting that committee staffers already had identified additional cases she had neglected to include.

Leahy said reactions to the questionnaire by senators on the Judiciary Committee ranged from "insulting" to "incomplete."

"Certainly it was inadequate and did not give us enough to prepare for a hearing," Leahy said.

Specter said he agreed.

The things she did list were seriously exaggerated and puffed.

Miers can now try to convince the Senate and the public that she is honest competent, and not responsible for the misrepresentation that her firm paid multimillions to settle; the tax shelter work for which the firm charged $50,000 per letter and with respect to which investigations are ongoing; the fees paid to her firm by a lottery contractor when she was head of the lottery commission; or the trauma caused to hundreds of small town Texans in the Heart of Texas who lost their savings to Ponzi scheme promoters who ran the money through the IOLTA trust account of the firm she ran.

She can tell them that she is great because she is the First Woman President of the State Bar of Texas who was elected after being suspended for nonpayment of dues, and who practiced law with a suspended license, while not knowing that it was suspended. She is a trailblazer.

As the President said, when announcing her nomination:

A Justice must be a person of accomplishment and sound legal judgment. A Justice must be a person of fairness and unparalleled integrity. . . .

It is now my duty to select a nominee to fill the seat that will be left vacant by the retirement of Justice Sandra Day O'Connor. Once again, I considered a wide variety of distinguished Americans from different walks of life. Once again, we consulted with Democrats and Republicans in the United States Senate. We received good advice from more than 80 senators. And once again, one person stood out as exceptionally well suited to sit on the Highest Court of our nation.

... Harriet has built a reputation for fairness and integrity. When I came to office as the governor of Texas, the Lottery Commission needed a leader of unquestioned integrity. I chose Harriet because I knew she would earn the confidence of the people of Texas....

... In selecting a nominee, I've sought to find an American of grace, judgment and unwavering devotion to the Constitution and laws of our country. Harriet Miers is just such a person.

I've known Harriet for more than a decade. I know her heart, I know her character. I know that Harriet's mother is proud of her today, and I know her father would be proud of her, too. I'm confident that Harriet Miers will add to the wisdom and character of our judiciary when she is confirmed as the 110th Justice of the Supreme Court...

If you were the Presidential speechwriter, is there anything in those remarks that you would change?

The Capacity of Harriet Miers

On June 11, 1995, Miers wrote to Governor Bush:

I write in one capacity only, a former President of the State Bar of Texas

What is the capacity of a former SBOT President?

What are the duties?

What is the authority?

What did Miers mean?

Does it make sense?

Is it proper?

Her letter avocated a veto of a bill.

What was her capacity and authority?

This is a serious question. It says a great deal about Miers. Was she acting properly within the scope of authority?

Did she say what she meant? What was she thinking?

Harriet Miers and the Flu

Did the White House fact checkers and proof readers call in sick?

Did they all get the flu?

Does that explain her answers?

Harriet Miers Writing Style

The substance is poor, but what about her writing style?


Does it matter?


Clear thinking and writing matter at the SCOTUS.

All they do is vote and write.

Votes are not enough.

What they write matters.

I read their opinions.

Short is good.

Clear is good.

Entertaining is good.

Pretentious is bad.

It appears that Miers is not up to clear short entertaining writing.

I can imagine 4-4-1 decisions with Miers as the deciding one, and no one knowing what her opinion means.

There have been some decisions like that. They are not helpful. Sometimes, for decades, no one knows what the law is because the Supreme Court split decisions are a mess. We might know who won and what each group of four thought, but have years of arguing over what Miers said, meant to say, and will say next time.

It matters. It matters to me.

Harriet Miers - There is humor too.

Set aside your serious side for a while. Read the Harriet Miers questionnaire for the humor it contains. I have not laughed out loud this much in ages.Harriet Miers There is humor too. Really. I can envision it as the lines in a one act play. A comedy. Laugh until you cry.


18. Legal Activities: Describe the most significant legal activities you have pursued, including significant litigation which did not progress to trial or legal matters that did not involve litigation. Describe fully the nature of your participation in these activities. Please list any client(s) or organization(s) for whom you performed lobbying activities and describe the lobbying activities you performed on behalf of such client(s) or organizations(s).

(191 words omitted)

In addition to my practice of law, my experience includes running and holding public office. As an at-large city council member, I dealt with city issues from supporting the police and firemen to paving issues.

But, you say, there must be more - what did you omit?

Well, you asked.

I omitted things like her first (and most worthy?) experience.

My legal experience is broad ranging, representing individuals and corporations in cases that cut across areas of local, state, and Federal law. For example, I have been called to a deathbed to make sure the individual had a valid, enforceable will...

Yes, that is how she begins. A will? No. A valid will? No. A valid, enforceable will! Not a mere will, or an invalid will, or an unenforceable will. No. A valid, enforceable will!

No wonder she leads off with that.

(By the way, a will is valid. (It is enforceable, although that is not the proper word.) If it is not valid, it is not a will. If it is a will, it is valid. So, wills and estate lawyers know that she does not know about wills, but she does know about puffery. For fun, lawyer ask a lawyer how much they charge for a will. Then ask them how much they charge if you get a valid enforceable will instead. Watch their face. Then ask the cost of a will that is not valid or enforceable. Watch their face.)

Of course, Miers does not say she wrote the will, or how she made sure. Made sure? Huh?

This if the first legal experience. It even rated above paving streets.

Below is the whole question and answer. As you read the answer, it helps to go back frequently and reread the question.

And remember to read it for the humor.

18. Legal Activities: Describe the most significant legal activities you have pursued, including significant litigation which did not progress to trial or legal matters that did not involve litigation. Describe fully the nature of your participation in these activities. Please list any client(s) or organization(s) for whom you performed lobbying activities and describe the lobbying activities you performed on behalf of such client(s) or organizations(s).

My legal experience is broad ranging, representing individuals and corporations in cases that cut across areas of local, state, and Federal law. For example, I have been called to a deathbed to make sure the individual had a valid, enforceable will; I have represented parents in contentious custody battles; I have represented a woman facing deportation to a country where she and her son would be ostracized; I have represented a well-reputed individual accused of securities fraud; and I have represented an array of corporate interests.

In commercial litigation, many matters are resolved by negotiation prior to suit, settlement before trial or are disposed of by the court on summary judgment. These results and outcomes are as important to the clients as jury verdicts. Many of the matters in my practice have been resolved in this fashion and I have described some in response to Question 16.

Much of my legal experience dealt with contracts and similar everyday matters. Sometimes, because of jurisdictional issues, concepts of due process would loom large. In representing a media client, I was involved in First Amendment matters concerning libel allegations, prepublication review, and sourcing issues.

In addition to my practice of law, my experience includes running and holding public office. As an at-large city council member, I dealt with city issues from supporting the police and firemen to paving issues. I also was called upon by the Mayor to be the Council’s principal representative in responding to a suit in which a Dallas Federal judge found that the city had discriminated in Federally funded housing. Additionally, the city faced a legal challenge under Section 2 of the Voting Rights Act.

My experience on the City Council helps me understand the interplay between serving on a policy making board and serving as a judge. An example, of this distinction can be seen in a vote of the council to ban flag burning. The Council was free to state its policy position, we were against flag burning. The Supreme Court’s role was to determine whether our Constitution allows such a ban. The City Council was anxious to encourage minority and women-owned businesses, but our processes had to conform to equal protection requirements, as well.

My City Council service and working in economic development activities afforded me with special insight into the importance of a stable, respected, and fair judiciary in which the public can have confidence. A factor in persuading companies to consider relocation or location in Texas was the state of our judiciary. Allegations of “justice for sale” or inflated jury verdicts impaired efforts to attract employers to our State. Companies making location decisions look for a fair, balanced court system.

My experience in leadership positions with the Dallas Bar and the State Bar of Texas is detailed to some extent in articles I wrote at the time. Lawyer advertising, regulation of lawyers by the Federal Trade Commission, the importance of pro bono work, and education about the legal system and the courts were just some of the topics with which the bar associations were involved. My work with these professional associations provided me with valuable experience in dealing with the challenges facing our justice system. My involvement with the American Bar Association was similarly valuable. Serving as a member of the Board of the ABA Journal for six years and then as Chair of the Board provided me with a wealth of experience with the issues that face the profession and our courts, such as the importance of an independent judiciary and proper funding for the judiciary. Likewise, serving on committees such as the Election Law Committee provided an understanding of the balance between the appropriate regulation of electioneering and the protection of free speech as guaranteed in the First Amendment.

In addition to the professional work I have done, I have had the opportunity to work in the community with a variety of organizations. That work has included easing the transition for inmates into the community, helping ensure that young people receive education about our legal system, working with organizations to assist underprivileged children, working with Goodwill, and lending my time and efforts to a number of other charitable organizations.

I have also had the opportunity to serve in the White House in three separate positions. This experience has given me a thorough view of how the Executive Branch functions. Likewise, in my current job, I have had an increased opportunity to work with members of the Congress in connection with a number of issues, and that opportunity has given me a greater insight into the role of the Legislative Branch.

A critical role of my current job is to assist in the formulation of recommendations for individuals to fill judicial vacancies. I also participated in such activities as Deputy Chief of Staff. My work in this area confirmed my view that judges must limit their role to interpreting and applying the law, leaving policy making and legislating to others.

Misoverestimating Harriet Miers

Why is her trial lawyer record her stong suit?

The alternatives:

Law firm manager.


Reliable and never changes.


Friend of President.

What do you pick?

She is misoverestimated in many areas.

Did John Podhoretz and I Misoverestimate Harriet Miers?

Podhoretz notices the 8 cases claimed by Miers. But he thinks they were jury trials with 8 separate appellate cases, for a total of 16. Not so. It is 8 total trials to verdict, jury and non-jury combined. But, we already had reviewed the Texas cases and found that there were not even 8 verdicts in the sense that the question asked.

First, what John said today:

Having read through the Miers questionnaire supplied to the Senate Judiciary Committee, I note with shock that in a legal career that lasted more than 25 years, she argued 8 cases before juries: "I have identified eight cases that were tried to verdict. I was lead counsel or sole counsel in four, lead local counsel in one, and associate counsel in three." That number again: 8. Eight. E-I-G-H-T. Turns out that the number is pretty important in Miers's career, since it's exactly the same number of cases she dealt with at the appellate level as well.

Her entire combined courtroom experience in the course of her long career: 16 cases. Thus does the last prong in the Miers defense -- that she will bring real-world lawyering experience to the bench -- collapse like a house of cards.

Second - our own second thoughts.

Miers is slick, but confusing. Clearly she is puffing her experiences. But, by not being clear, we can be mislead. Indeed, it is clear that she either intends to mislead or is totally incapable of clear thinking and writing.

Here is the question:

d. State the number of cases in courts of record you tried to verdict or judgment (rather than settled), indicating whether you were sole counsel, chief counsel, or associate counsel. For any appellate cases, state whether you made oral arguments, and supply four (4) copies of any briefs that were filed for those cases.

i. What percentage of these trials were:

1. jury;

2. non-jury.

Here is what Miers said:

While it is difficult to approximate these percentages, I have identified eight cases that were tried to verdict. I was lead counsel or sole counsel in four, lead local counsel in one, and associate counsel in three.

I recall arguing the following appellate cases: Jones v. Bush, 244 F.3d 144 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001); Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25 (Tex.App.-San Antonio, 1998); Microsoft Corp. v. Manning, 914 S.W.2d 602 (Tex.App.-Texarkana 1995); Thanksgiving Tower Partners, et al. v. Anros Thanksgiving Partners, 64 F.3d 227 (5th Cir. 1995); Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir. 1985); In re Grand Jury Proceedings, Misc. No. 1331, 712 F.2d 973 (5th Cir. 1983); Southwest Securities, Inc. v. Sungard Data Systems, Inc., 2000 WL 1196338 (Tex.App.-Dallas 2000). I may have argued at the appellate level in other cases that I cannot recall and for which I have no records.

What does she really say?

1. Clearly, 8 is total cases tried to verdict rather than settling. Clearly, non-jury and jury are combined. Miers does not specify or respond to the request for percentages. Miers was a math major. She did not do the math. If she did not know the number of cases or the number of jury or non-jury cases, it is impossible to do the math. But, Miers says it is difficult to approximate these percentages. Wow! If there were 2 jury trials out of 8 total trials, 2/8 or 25% are jury and 75% are non-jury. I was not a math major, nor did I take college math. Maybe that is why I did it in my head. I bet you did it in your head too. Why is it difficult? Why does she try to approximate, rather than calculate, but not succeed? Is she ducking the question? Is the answer, for example, 12.5% jury verdicts, counting reversed verdicts and 0% verdicts that were not reversed? Or is it that 8 includes cases without verdicts and the actual number is too low to mention. Maybe zero cases in Texas courts, for example. Would she confuse the answer to avoid division of zero by zero if jury verdicts are zero and total verdicts are zero? But even if there are no Texas cases, there certainly are Federal court case, are there not! Are there not? Surely there are! There must be!

2. Clearly she has been misread as saying she was in 8 jury trials, when it was 8 total trials. But did I also misread her? Miers blends her answer. She says 8 cases verdict. Then she lists 8 cases in appellate courts. Are there 16 cases, as Podhoretz says, or 8 total cases as I thought yesterday? Are the 8 cases she counted the 8 she listed, or did she mention 8 and list 8 others? Or did she mean to say 8 jury trials and not say it? We are forced to guess. She is not clear. She does not write clearly. Is this too hard for her? No, I do not intend to be snarky. That is a real question. She says it is difficult. Is this too hard for her? Really.

3. My current guess about what she meant to say: 8 total cases including the appeals. She was involved to some extent in the trial and appellate phases of 8 cases. Of the three cases tried in Texas courts that I reviewed perviously (See post: Harriet Miers in pathfinding Texas case. Or not.) two were resolved without a trial and the third included a jury trial and verdict that was reversed before the parties got fed up with the lawyers and courts and quit without retrial. I have not yet read the 5 Federal cases. The Jones v. Bush cases seems to have been resolved on a motion, since the plaintiffs lacked standing to claim that Dick Cheney was an inhabitant of Texas. No jury. No trial. Apparently. I suppose I will have to read the silly thing.

The underlying problem is simple. Miers exaggerates. She is not comfortable with the truth about herself, so she embellishes. But this may not be purely a trait in this setting. If she says she is a top trial lawyer who tried tough big cases, but also says the President is the Smartest Man She Ever Met, and was the Best Governor Ever and Laura Bush is the Best Fellow SMU Student and the weather today is the Best Day in History, is it just that she sees the half full glass as 110% full? Does she know she is exaggerating, or does she lack discernment?

Did we misoverestimate Harriet Miers?

Tuesday, October 18, 2005

8 Harriet Miers Trials? Not so.

The Harriet Miers questionaire recites 8 cases tried to verdict.

I updated my previous post which reviews the Texas state court cases.

Her answer is not correct.

She said:

I have identified eight cases that were tried to verdict.

She lists 8 cases. That math is right. It is the verdict part that is a bit weak.

My updated post below is:

Harriet Miers in pathfinding Texas case. Or not.

Harriet Miers, First Woman

The White House includes the First Woman tag on the list of accomplishments.


They do not explain.

We are left to assume that it shows Harriet Miers to be more accomplished.


Most famous is State Bar of Texas First Woman President, Harriet Miers.

Is that a greater accomplishment than, State Bar of Texas President, Harriet Miers, or Third Woman President?

I have not seen this addressed.

Who did she defeat? A man? A woman?

How was she selected? By the powers that run the SBOT? If not, by whom? If so, did they choose her because she was a woman, or despite her being a woman?

How many ran for the job?

Was there a vote? What percentage voted? What percentage voted for her? What percentage of the membership knew her? What did members know about her. Did they vote for her, or against her opponent? Did they vote for her because she was a woman? Did some vote against her because she was a woman? Were votes the result of a campaign? How does it work? Do lawyers vote for someone they know, or for someone recommended by someone else?

Is the White House claiming that Texas lawyers are sexist pigs who would not support a woman until they met Harriet Miers, saw her litigate in court, read her briefs, and were blown away?

Was she selected by a bar elite because they wanted a Big Firm Dallas Woman Trial Lawyer, and it was the turn for her firm?

What is the White House saying?

They are just saying: Harrier Miers, First Woman President, State Bar of Texas.

What are we to make of that? Would someone please explain?

And while you are at it, consider whether she was President instead of another first. Had there already been a black, hispanic, oriental or muslim? Was she the one more White Christian President?

Consider a point system. How many points for being the President? How many points for being the First Woman? How many points for being another white big firm trial lawyer from Dallas? How many if she ran against a man, or two men, or a woman, or a black, oriental, or hispanic, or if it was an all woman field? Feel free to deduct points if something is a negative.

Video podcasting the Blue White game and

On Saturday, Duke plays the Blue-White game. Will it be podcast so guys like Ken Starr and Walter Dellinger can watch it on a device they can carry in a pocket?

Maybe next year.

No ads. No timeout delay. No half time break. Just the game. Call your own time out. Choose your own replays.

When will it happen?

The Spin of Harriet Miers

In her questionnaire, the description of the cases includes spin. If you know the case and the law you can recognize it. If not, you get an exaggerated impression.

There is nothing wrong with being a lawyer who represented clients in routine matters, or handling state court litigation. Harriet Miers should be proud of what she did.

But she exaggerates. She tries to make the routine matter seem special, and the state law issue seem to be a Federal Constitutional issue.

The whole White House campaign has been an exaggeration. Now Harriet Miers personally exaggerates.

Details later...

Omission in the Harriet Miers Questionaire

The Harriet Miers Questionaire is full of spin, but the key item is what is not said.

The key question in the the Harriet Miers Questionaire:

"20. Party to Civil Legal or Administrative Proceedings: State whether you, or any business of which you are or were an officer or any partnership, trust or other business entity with which you are or were involved, have ever been a party or otherwise involved as a party in any civil, legal or administrative proceedings. If so, please describe in detail the nature of your participation in the litigation and the final disposition of the case."

The answer:

"As is the case with any major law firm, my firm was a party to a number of law suits over my thirty years of practice. However, in none of these was I, or my work, the subject of complaint."

Yes, this is the key. The key is what she did not include. She may think no one will notice. But some will. Enough will. Left wing folks will. Her hope is misplaced.

Miss Miers should remember this news account of one item she omitted:

Harriet Miers, co-managing partner of Locke Liddell, says the firm denies liability in connection with its representation of Erxleben.

"Obviously, we evaluated that this was the right time to settle and to resolve this matter and that it was in the best interest of the firm to do so," Miers says.

Perhaps no one will raise the issue, but is it better to mention it? Perhaps people will think she is hiding something. Perhaps they will think this is the tip of the iceberg. Perhaps they know how to search the internet and newspaper data bases.

The White House may not know. She may not have mentioned it. Perhaps no one mentioned it. Perhaps no one googles.

If they do not know, what will they say when they find out? What will Senators say if it is kept from them? Is it in the FBI report? Should it be there?

The omission may indicate that Miers is concerned, and unwilling to reveal it. Or, does she really think it is not worth mentioning?

And what about Stearns?

Is it a big deal? Yes. If it was big enough to omit, it was big enough to include and explain.

Republican Senators may now have a perfect reason to quietly request withdrawal.

The underlying actions are troubling. Failure to disclose may be the reason/excuse to request withdrawal.

If so, she did it to herself. She knew. She omitted.

(Update 10/19 They noticed. They asked. Q20 is Restated, and Miers is given help by telling her that they really would like the information about civil actions against her firm involving multi-million dollar settlements when she was managing it. Picky, picky, picky.

This issue is getting some attention, as it does at but it is mostly being missed by the media and the blogosphere. Will the chickens come home to roost? Will the Texas Chicken Feed Tort of Negligent Misrepresentation achieve worldwide fame? We shall see.

The Dallas Morning News, the hometown paper that Miers represented, today reported:

The committee also asked for more information about lawsuits she mentioned involving the Dallas law firm she headed. "There have been press reports of civil actions against your firm involving multi-million dollar settlements that occurred during the time you were either managing partner or president of the firm, about which the Committee would like to have more information."

In November 2001, The Dallas Morning News reported that Miers' firm, Locke, Liddell & Sapp and its insurance carrier had paid out more than $30 million to settle claims that the firm had helped defraud investors in two unrelated investment schemes. The transactions occurred during Miers' tenure as managing partner of Locke Purnell Rain Harrell, the firm's name before its merger with a Houston firm.

Locke, Liddell & Sapp has acknowledged the payouts as an effort to rid itself of potentially costly litigation. Miers was not implicated personally in either case. )

Monday, October 17, 2005

Draft of Harriet Miers opinion on abortion.

The others split 4 to 4.

Justice Miers concurs and dissents.

Her controlling opinion:

Oh, what a good question. And I get to decide! How cool!

Well, life is good. So very good!

And, privacy is good. So important!

And it is a woman.

And a baby.

Thank you for giving me the opportunity to be here and give my opinion.

Remand for further action consistent with this opinion.

Miers judicial activism.

Harriet Miers is for judicial pacifism.
A compilation of my comments from another forum.

If you think Miers expressed an opinion, you took attentive listening and a question as the expresion of an opinion.

Beware of any claims that she expressed an opinion.


What will a person who has not had an opinion in 60 years decide?

Who knows.

(She does not know either. Why does anyone think she does know.)

The President and Judge Hecht do not know either. They just think her silence is agreement.

Anticipated Miers Hearing Transcript

Hearing transcript:

Q. 5 minute question by pompous Senator.

A. That is a very good question Senator.

Q. 5 minute question by pompous Senator.

A. That is another very good question Senator.

Harriet Miers and the other Texas Supreme Court Justices

There is probably a better way to do this, but I am new to blogging, here it is. Orin Kerr posted this at The Volohk Conspiracy, and I posted a comment responding. It seems worthwhile so I post both for context.

[Orin Kerr, October 17, 2005 at 4:39pm] 0 Trackbacks / Possibly More Trackbacks
Texas Judges on Miers (Sort Of):

President Bush met with six former Texas state court judges today about the Miers nomination. Reports from last week predicted that the judges would detail the cases that Miers had argued before them, and explain why she did a good job and why they thought she was qualified for the Supreme Court. If today's press event is all that has been planned, however, it looks like we're going to be left disappointed: The entire event was about one minute long, and most of that time was taken by the President (video and transcript here).

 The only statement other than Bush's was by John Hill, Chief Justice of the Texas Supreme Court in the 1980s. Hill is a personal friend of Miers who was appointed by Bush to the Texas Lottery Commission in 1997. Here is Hill's statement in its entirety:
"Mr. President, we just all want to thank you for this nomination. We’re excited about it, and we’re here to try to let the people of America know what we all know, that she is an absolutely fantastic person and a great lawyer and will make a great judge."
  Does anyone know if we're going to hear more from these judges? That seems like a rather short quote for such a long trip.

  I hunted around Google News for additional statements, and found another news report that offers two more quotes. In it, Hill adds "I'd trust her with my wife and with my life." Former Texas Supreme Court Justice Craig Enoch says, "I think this is an excellent choice by the president of the United States and I think when people get to know her and understand her like we do, they'll find her an excellent choice. And she'll be a legend on that court before her career is finished." But I haven't been able to find anything else.


My response:

I may be able to help. I posted several items on my new blog. Included is my take on her four - yes four - Texas appellate cases. All were at the intermediate court of appeals. None were heard by the Texas Supreme Court. All involved other counsel representing her client. I do not know if she presented any oral argument. I do not know if she wrote any brief. She did make the list of attorneys, and she may have done everything for her clients, or almost nothing. I look forward to seeing your reaction to her cases.

If the White House said the Texas Supreme Court Justices would recount her sucessful oral arguments in the Texas Supreme Court, one can only be in awe of the public relations operation behind this nomination.

In other words, this is a transcript of all of her oral arguments in the Texas Supreme Court:



Maybe the Justices did tell all there was to tell about them.

Is this snarky? Maybe so. It is hard to be precise and correct without being a bit harsh.

It was not Harriet Miers who said she argued in the Texas Supreme Court. The article you linked does not say what she did. The AP writter assumes that she did something important and the justices know about it. I think the White House press office thought so too.

Senator Cornyn was also on the Texas Supreme Court. Hill, Phillips, and Enoch were on the court. They knew Miers socially and from Bar and Court functions. That is what they know. They are doing what they can for the Texan who is nominated to the court. And, some of them practice law, and do not want to offend people who matter to their practice.

Yes, they are doing as much as they can do, and saying as much as they can say.

Actually, I am impressed. They have to say nice things and be supportive, but they avoided saying too much. A sound bite. Stop. The best they can do.

Links to the cases are at my blog. There are Federal cases too. Do not expect too much.

The White House may have made a mistake by puffing her history. It is sometimes better to understate and have people pleasantly surprised. They did not leave much for a pleasant surprise.

But, she was involved in the selection process. Do we feel sorry for her? I am not sure how to feel about her being in this position. She has been hung out to dry.
10.17.2005 6:15pm

Roe and the Judicial Philosophy of Harriet Miers

Did Harriet Miers discuss Roe over the years? Will she give her opinion now?



It is against her judicial philosophy. Someone might not agree. Someone might be offended. It is off limits.

The Harriet Miers Judicial Philosophy Revealed

There was a family owned rural bank that had the fixed rule that employees could not talk with customers or others about anything except the weather. Not in the bank. Not at home. Never.

That way, they would never offend anyone.

Yes, that is a true story.

Now, consider the philosophy and rules of Harriet Miers.

Never be critical of anyone. Make no enemies. Offend nobody.

Compliment profusely. Make friends. Many friends. Help them. Build a network.

Work hard. Become known for hard work.

Make the right friends and patrons. Be sure they like you and think you are the best.

The Harriet Miers Philosophy.

And now it is the Harriet Miers Judicial Philosophy.

It is not what you know, but who you know, and what they feel about you.

The Harriet Miers Accomplishment Phase

Time says:

Get ready for a whole new Harriet. After a disastrous two weeks,White House officials say they hope to relaunch the nomination of HarrietMiers for the Supreme Court by moving from what they call a "biographicalphase" to an "accomplishment phase." In other words, stop debating her religionand personality and start focusing on her résumé as a pioneering female lawyerof the Southwest. "We got a little wrapped around the axle," an exhaustedWhite House official said. "As the focus becomes less on who she's not andmore on who she is, that's a better place to be."

So, as the WhiteHouse counsel begins her formal prep sessions this week for a confirmationhearing that's likely to start in early November, President Bush will holda photo op with former chief justices of the Texas Supreme Court who willtestify to Miers' qualifications and legal mind. The White House's 20-person"confirmation team" will line up news conferences, opinion pieces and letters to the editor by professors and former colleagues who can talk about Miers'experience dealing with such real-world issues...,8816,1118366,00.html

Maybe the White House will talk about the cases she litigated. We did. See our prior post.

We invite the law professors, judges and others to comment on those cases and on our take on them.

The Miers conference call.

Scott at says:

The conference call recounted in John Fund's Wall Street Journal column on Harriet Miers is itself bound to become a factor in the confirmation process...


The issue of promises made could be decisive, not just because it is important, but because it is an excuse for opponents to oppose. It is both. It is important. And those looking for an excuse to oppose can use it. There are reasons to oppose that some would not like to recite as their reasons. Thus, excuses are important. For many, the story itself need not be true. The possibility is enough. Others will choose to reject the promises claim and reject the issue. A few may care if it is true.

I raise the ethical issues and identify the players in other posts.

The Fund story is:

Miers Hecht Kinkeade and Ethics

Beldar, at said:

It's unusual, but not unethical or improper, for sitting judges to make guesses about how someone else who might be confirmed to a different judgeship might possibly vote if a particular matter possibly comes up in the future.

Let us consider - is this a:

1. statement of fact
2. opinion
3. WAG

(In the same post, Beldar defines WAG as WAGs = "wild-ass guesses," a trial lawyer term of art... )

For those who take the topic seriously:

1. What rules of ethics or propriety are implicated?

2. Rules of propriety? Huh?

3. Rules of ethics for lawyers, judges, or both? What applies? How does it apply? What is the effect of the White case? What is the answer under prior cases in which the abortion issue was raised in the campaign? What is the effect of the White case on those decisions?

Yes, this is a teaching moment.

Bush and teenage children

Children need to grow up. They need to go out on their own. Parents may think they are not ready. Parents may hold them back.

The solution - teen behavior.

After a dose of teen behavior, parents may pack the bags for their children, wave goodbye, and sigh with relief.

A good result from bad behavior.

President Bush is threatening his parents, the conservative grass roots - those people who supported him and gave him the presidency. Support Miers or else.

That is good for the parents. They now can look forward to the days after Bush with pleasure, not fear.

The Bush years will be over one day. People might as well feel good about it.

Oh, and the fear inspired by the threats. Not much. About like threats by teenagers. Irritating. Humorous. Not taken seriously.

Sunday, October 16, 2005

The Harriet Miers Cases

This is one set of material and links.

Judge Ed Kinkeade and Harriet Miers

Ed Kinkeade made the news again. Who is he? He is covered in the post below.

He is a Federal Judge in Texas. Consider the Hecht question below. How do the statements made by Judge Kinkeade square with the Texas ethics rules?

Hecht and judicial campaign speech.

Nathan Hecht has made statements about his friend, Harriet Miers. How do these statements square with the Texas rules governing speech by lawyers and judges involved judicial campaigns of candidates other than themselves? Any thoughts?

Harriet Miers - The Real Problems

Yes, there are some that I know about. Serious. Substantive. Very hard to explain in a Senate hearing context. The conservatives who are irate have not looked. You are too busy venting and defending. Hugh has not assigned boxes. Some liberals have found. Hidden in plain site. Will you look? Will you find? What will I do if you do not look and find? I do not know.


If you see any substantive errors, please let me know. My intention is to be factually accurate.

Harriet Miers and the law.

Today I began this blog with posts about the Texas appellate cases which establish the legal prowess of Harriet Miers; some of the links between the people who appear in some of the Miers stories; and a tidbit on the SMU connection. From time to time, I will add to the postings with a focus on substantive discussions that cover matters that have not been covered in the media and blogs I read.


This is a new blog. I am new to blogging. Feel free to offer suggestions.

Harriet Miers in pathfinding Texas case. Or not.

The White house says Miss Miers practiced trial and appellate law for 30 years. She handled big cases for big clients, and litigated groundbreaking issues such as whether certification of a class is proper, an issue she litigated on behalf of Microsoft. Big stuff. Hard stuff.

Lists are now available. I reviewed all of the Texas state court cases. All four. Yes, four. Thirty years. Four big hard cases. They are:

1. Microsoft. 914 S.W.2d 602 (Tex.App.-Texarkana 1995) Said to be a real trailblazer case. Not quite. It was an appeal of an interlocutory order that certified a class of plaintiffs suing Microsoft. Texas allows this appeal right away, before trial and before most pretrial activity. Miers represented Microsoft. Microsoft lost (a class was certified) at the trial court, and appealed. The issues were routine class certification issues. (Were the requirements of the rule met? Was there Constitutional Due Process? Was there a Full Faith and Credit violation?) The court of appeals affirmed. Microsoft and Miss Miers lost again. The court of appeals wrote a fairly long opinion which was issued two weeks after submission. That is fast, and suggests that the case was easy. Generally oral argument and submission occur on the same day. There was one unanimous opinion. Miss Miers is the only lawyer listed for Locke, but Max Sandlin, Jr. also represented Microsoft. (For Appellant: Hon. Harriet E. Miers, Locke Purnell Rain Harrell, Dallas, TX. Hon. Max A. Sandlin, Jr., Sandlin & Buckner, Marshall, TX.) Later, Max Sandlin, Jr. was a Democratic member of congress. It is a small world. What will he say about Miss Miers and this hard case that they shared? Locke Liddell's PAC contributed to a campaign of Max Sandlin, as well as to an opponent of Tom Delay. Delay won. Delay pushed through redistricting. Sandlin was defeated. Delay was indicted. It is a small world.
Comments: Was it worth an appeal? Probably, even if the result was almost certain. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that some first year lawyers could handle. A routine dull case for the court of appeals. A claim that it was a big trailblazing case is foolishness. And Miss Miers lost. And her attempts to have it reheard or considered by the Texas Supreme Court failed. Microsoft dismissed by the plaintiffs without prejudice. No verdict or judgment.

(Update: Her questionaire explains: She lost at the trial court, lost at the court of appeals in which she gave the losing oral argument, sought review at the Texas Supreme Court, and while that request was pending, won at the trial court when the trial court judge decided to decertify the class. This was all about the issue of whether the class should be certified. The trial judge could decertify any time. Miers questionaire suggests that she does not understand the issues in the case or that she is spinning them by claiming interplay between state and federal class action laws. Generally the class action rules of Texas are construed the same was as the Federal rules, so Federal cases are authority for state courts. Yet she stresses the interplay. What interplay? This was just a plain vanilla state class action issue. She also claims federal constitutional issues of due process and full faith and credit were involved. Not really.

1. Due process is just a distraction from examining compliance with the rule. Generallt the process required by the rule is what is required. The court is not going to read the constitution, it is going to read the rule. But, in the court of appeals Miers also claimed a due process violation related to the class notice. The court of appeal was not impressed. It said:

As for the adequacy of notice, the trial court has made no ruling on notice. That is a decision that will be made later, and it will be subject to review. This court cannot tell if class notice violates due process because no class notice has been given.

The class certification does not violate constitutional due process or the Full Faith and Credit Clause.

2. Full faith and credit seems to be a total misunderstanding. There was a choice of law issue. Does Texas law cover all members of the class? That does not strike me as a full faith and credit issue.

My reaction to the questionnaire is off the cuff. Maybe I missed it.

Overall: The White House and Miers are spinning. This case is no great accomplishment. Most trial lawyers would not want it to be their signature accomplishment.)

2. Disney. 981 S.W.2d 25 (Tex.App. - San Antonio 1998) Disney was sued. Disney said it could not be sued in Texas. It was not a Texan, and had done nothing to give Texas jurisdiction over it. Disney filed affidavit but the trial court denied their claim. Disney appealed the denial. This was an interlocutory appeal before trial, and before much pretrial activity. The plaintiff failed to offer any proof as required to support jurisdiction. Thus, plaintiff loses. Unanimous. Easy case! Plaintiff failed to make an adequate record. It would be hard for Disney to lose this appeal. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that some first year lawyers could handle. A routine dull case for the court of appeals. ATTORNEYS FOR APPELLANT: Harriet E. Miers, Thomas A. Connop, Thomas F. Loose, Kirsten M. Castaneda, LOCKE, PURNELL, RAIN, HARRELL, P.C., Dallas, TX. Arnulfo Gonzalez, Jr., LAW OFFICES OF ARNULFO GONZALEZ, Laredo, TX. Yes, four locke attorneys, and one local lawyer. One should be plenty.

(Update: Her questionaire claims this as a case in which she litigated constitutional issues. Huh? I quote the first two sentences of the opinion:

This is an accelerated appeal froman interlocutory order denying Disney Enterprises, Inc.'s ("Disney") Rule 120a special appearance. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (a)(7) (Vernon Supp. 1998). Because we find that Disney is not amenable to suit in Texas, we reverse the trial court's order and order the cause dismissed for lack of personal jurisdiction. of Disney.

Miers was asked the number of cases she tried to verdict or judgment, not settled cases. (Question 15d.) Some, including the Republican National Committee, claimed that Miers said she tried 8 jury cases. ( In private practice she handled hundreds of cases, litigating at least eight jury trials to verdict and handling six appeals. Quoted by Erick at


Disney and Microsoft are among the 8. Deduct them. Now, down to 6. In Microsoft and Disney, there was no jury trial or other trial. Microsoft was dismissed by the plaintiffs without prejudice. No verdict. No judgment. Disney case thrown out of the Texas court because it was the wrong state in which to sue. (Who is in charge of getting the facts right at the White House and RNC?) Miers puffed her answer. The RNC bought the puffery. This is not helping her.


Miers does not mention McClure or Perkins in her questionaire. Why? I have no idea.


3. McClure. 560 S.W.2d 457 (Tex.App. - Beaumont 1977) Dispute arising from a foreclosure. Jury trial. The jury answers conflicted with one another. Trial judge disregarded some jury answers. Miers appeals. Reversed and remanded for new trial. Unanimous. Short opinion. Somewhat messy case. Messed up in trial court. Sent back to do over. Nothing accomplished so far. Try Again. Joe H. Staley, Jr., Harriet E. Miers, Dallas, for appellants. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that some first year lawyers could handle. A mundane case for the court of appeals.

4. Perkins. 545 S.W.2d 494 (Tex.App. - San Antonio 1976) Does a lien relate back? Contractor lien validity and priority. Vague land description. Is it too vague? Jury trial. Multiple parties. I would need to know more to know the players, and how it all works out. Miss Miers is the Dallas lawyer, the third firm listed for the appellee. Two San Antonio firms with lawyers Pepos Dounson and Luther Soules also represented her client. One may have handled the appeal. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that a few first year lawyers could handle. A mundane case for the court of appeals.

Overall. Four cases in 30 years. Routine cases. Miss Miers was never the only lawyer for her client. All opinions by the intermediate court of appeals. The Supreme Court did not take any of them. None in Dallas or Ft. Worth. Two in San Antonio. One in Texarkana. One in Beaumont. At least a few hundred Texas lawyers had more cases during those years. Maybe a few thousand lawyers did this much or more.

The only thing this record shows is that her Texas appellate court experience was minimal and mundane.

There are also cases in Federal courts, cases in trial courts, and possibly cases with unpublished opinions. Those are saved for another day.


In her questionnaire, another of the 8 cases Miers tried to verdict or judgment (not settled) is Southwest Securities v. SunGard. I have not read it. She describes it. She, representing SunGard won about $50,000 plus $1,550,000 in legal fees. Southwest appealed. Miers and co-counsel argued in the court of appeals. The verdict was reversed in part, everything was sent back to the trial court, and the parties settled for a walk-away judgment. Apparently that means that they had their fill of litigation and quit. No verdict in favor of anyone, or should we say a verdict for no one. I am guessing that the opinion was designated as not for publication. It is 2000 WL 1196338 Tex.App.-Dallas 2000, but has no Southwest Reporter citation)

Overall, this post covers 3 of the 8 cases Miers said were tried to verdict, but 2 were not and 1 was reversed. I also cover 2 cases omitted by Miers. The other 5 of the 8 are Federal cases.)

(Updated again 10/18. Be sure to read this update. We may have misoverestimated.)

Will you Give SMU A Supreme Court Justice?

Does an SMU board member and graduate receive this solicitation?

Some give football stadiums or museums.

What can you give SMU? How about:

1. A Presidential Library.

2. A Supreme Court appointment for a classmate.

If you cannot give them personally, maybe you know someone who can.

Harriet Miers - Dizzy


Some think President Bush has a small inner circle, and that Harriet Miers fans are not widespread.

Maybe not.

Her guy, Nathan Hecht, likes her. A Texas Supreme Court justice likes her. Well, that is the same guy, but still, he wears two hats, or robes, or whatever.

Her sister-in-law, Elizabeth Lang-Miers, likes her. A judge on the Texas Fifth District Court of Appeals (Dallas) likes her. Well, that is the same gal, Elizabeth Lang-Miers, but...

Another judge on the Texas Fifth District Court of Appeals (Dallas), David Lang, likes her. The brother of the judicial sister-in-law likes her. Well, that is the same guy, David Lang, the brother of Elizabeth Lang-Miers, but still...,

A Federal District Court Judge in Dallas, Ed Kinkeade, likes her. A former judge on the Texas Fifth District Court of Appeals (Dallas), Ed Kinkeade, likes her. Well, that is the same guy, but still....

President Bush likes her. Yes, this is the same President Bush who appointed Ed Kinkaede to the Federal District Court bench, which took him from the court on which David Lang served and opened the seat to which Elizabeth Lang-Miers was appointed by Governor Perry, who became Governor when President Bush became President.

Laura Bush likes her. Laura and Harriet went to SMU. Same time. Same place. Small world.

Law professor Linda Eads, of the Dedman School of Law at SMU, where Harriet was on the board, likes her. In July 2000, Laura Bush joined the SMU Board of Trustees, joining Dick Cheney who served from 1996 until August, 2000. SMU is seeking the Bush Presidential Library. The faculty advisor to the externship for one Dedman student with District Judge Ed Kinkeade likes her. Well, that is the same Linda Eads and the same Ed Kinkeade, but still....

Federal Court of Appeals Judge Priscilla Owen likes her. Former Texas Supreme Court Justice Owen likes her. Yes, they are the same. Judge Owen was nominated by President Bush while Miss Miers worked for him. Priscilla Owen served with Justice Nathan Hecht. Yes they dated - that is Hecht and Owen and Hecht and Miers dated. They are all friends. Rumors suggest that Judge Owen was the first choice of President Bush for the Supreme Court, but she withdrew because of either (1) poor vote count projections from the Senate, or (2) personal reasons. The withdrawal is said to have occurred a few days after President Bush asked Miss Miers if she would like the nomination herself. The conversations between Miss Miers, who was handling the selection process of Justice Hecht and Judge Owen must have been very interesting. How did the conversations change from the time when Owen was the only candidate to the time when Owen and Miers were competing? Did these three people engage in conversations that determined the nominee for the Supreme Court? Did they converse in pairs or did they have a conference call? Was it in person or by phone? Are they all still friends? How much would tapes of those conversations sell for on EBay? Did Miers tell the President that Judge Owen withdrew? Did Owen really withdraw? Did Miers leak a withdrawal story? If not, who did? (I heard the Owen withdrew rumor a few days before the announcement that Miers was chosen. I have also heard that the rumor was false.)

Recently, Miers advocates said that Miers supported renominating some court of appeals nominees who were not confirmed or rejected before the last election. One of those was Owen. Owen was serving as Justice of the Texas Supreme Court with Hecht. Owen is the friend of Hecht and Miers. I have not heard any discussion of whether some factor other than judicial philosophy was involved. If Miers had opposed renominating Owen, would that affect the relationships among the three?

It is so simple. Why am I dizzy?

Think about how Texas lawyers must feel, especially if they practice in front of the guy friend, sister-in-law, the brother of the sister-in-law, or predecessor of the sister-in-law and former bench mate of the brother of the sister-in-law. Are they dizzy too?

Contemplate how Judge Owen feels. The big guy chose her friend Harriet. Harriet was advising the big guy. Ouch!