SAVING HARRIET MIERS

Michael J. Gaynor
SAVING HARRIET MIERS
By Michael J. Gaynor
www.MichNews.com
Oct 24, 2005

President Clinton appointed two United States Supreme Court Justices, Ruth Bader Ginsburg and Stephen Breyer.

Justice Ginsburg, a Jewish secular extremist female and a former ACLU attorney with some outrageous opinions, was confirmed as an Associate Justice of the United States Supreme Court, 96 to 3.

Justice Breyer, a Jewish secular extremist male and Ted Kennedy protégé, was confirmed as an Associate Justice of the United States Supreme Court, 87 to 9.

One result: the Ten Commandments were banned from courthouses, 5 to 4, with the votes of Justices Ginsburg and Breyer being decisive.

Another result: the original narrow public purpose requirement of the Constitution's eminent domain clause was eliminated, not by a duly adopted constitutional amendment, but by amendment under the guise of judicial interpretation, 5 to 4, with the votes of Justices Ginsburg and Breyer being decisive and the property of religious organizations as well as individuals being put in jeopardy.

White House Counsel Harriet Miers, the first evangelical Christian Supreme Court nominee since 1931 and a female whom I believe would have voted for Ten Commandments displays and against the Supremes essentially rewriting the eminent domain clause, surely has not been received nearly as well as Justices Ginsburg and Breyer.

And what good is the prior judicial experience of Justices Ginsburg and Breyer when they are judicial activists who disrespect the Constitution they have sworn to support?

Oh yes, I find Ms. Miers immensely preferable to these two secular extremist judicial activists, their regular ally among the Supremes (Justice John Paul Stevens) and their sometimes ally among the Supremes (Justice Anthony Kennedy).

Do I think only graduates of Ivy League colleges and top tier law schools are qualified for the Supremes?

Certainly not.

I think that there are qualified people in every one of America's 50 states, male and female.

I think there are four Supremes who would do America a favor by resigning.

And I think that much of the opposition to Ms. Miers is based upon the realization by secular extremists and pro-abortion people that she is not one of them, resentment and envy among elitists on the right who are determined to force President Bush to pick a person on their list (an excellent list), and residual sexism on the part of those who sincerely, but wrongly, believe that only men are the best qualified.

Would Ms. Miers have had a friendlier reception is she were Harry Meyers, a Jewish man, instead of Harriet Miers, an evangelical Christian woman who is pro-life?

Secular extremists loathe, and fear, evangelical Christians. They blame them for President Bush's elections in 2000 and 2004 over Democrats who capitulated to and cooperated with secular extremism and championed abortion as a civil right instead of opposing it as a tragic wrong. For example, Senator Diane Feinstein would not even vote to confirm now Chief Justice John Roberts (whom elitists could not criticize, because he a Harvard Law School valedictorian), because he would not assure her he would uphold Roe v. Wade.

I have no problem with the notion of legal nerds on the United States Supreme Court. Certainly prior judicial experience is a plus for Supreme Court nominees. But it hardly should be the be all and end all in nominating United States Supreme Court Justices. Especially when there are plenty of Supremes with such experience.

Pior real world experience and service in elective office and in local, state and federal government in executive or legislative capacities are important pluses too. Pluses that a number of United States Supreme Court Justices lacked. Some Chiefs Justices of the United States (e.g. John Marshall and Earl Warren) had no prior judicial experience. (They were men, of course.)

Ms. Miers has served throughout the Bush presidency in increasingly responsible appointive positions. Prior to that, she head the Texas Lottery Commission and her own law firm, having been the first female lawyer hired by the firm, and served a term on the Dallas City Council representing the entire city instead of a particular councilmanic district.

Ms. Miers is a particularly good choice, given the deficiencies of the current Supremes and the appropriateness of having more than one woman among them. At 60, she is neither too old nor to young. As a pioneer for lawyers lacking a Y chromosome who chose to study, work and live in her native Texas until President Bush brought her to Washington, D.C., she will bring a perspective sorely lacking among the Supremes. She should not be considered disqualified because she studied and worked in her native Texas instead of traveling to an Ivy League college in the Northeast.

I suspect that Harriet Miers would face much less opposition if she were Harry Meyers and state with the same firm conviction that I believe she will demonstrate among the Supremes that Harriet Miers is no Harold Carswell.

George Harrold "Harold" Carswell (1919-1992) was a federal judge and an unsuccessful United States Supreme Court nominee in 1970. He was born in Georgia and graduated from the United States Naval Academy and the University of Georgia School of Law. He served as an attorney, the United States Attorney for the Northern District of Florida., and Carswell a judge on the United States District Court for the Northern District of Florida beginning in 1958, and a federal appellate court judge on the Fifth Circuit Court of Appeals beginning in 1969. President Nixon nominated him to the Supreme Court on January 19, 1970. His reversal rate on appealed decision was 58%. Civil-rights advocates criticized her civil rights records, which included vocal support of white supremacy in 1948 while running for office in Georgia. His nomination was rejected by the Senate, by a vote of 51-45.

The unabashedly elitist, utterly unsound, pro-"nerd" and anti-Miers position as enunciated by the articulate and witty, but arrogant and sometimes nasty Ann Coulter:

Ms. Miers is unfit to be a Supreme because she "went to Southern Methodist University Law School, which is not ranked at all by the serious law school reports and ranked No. 52 by US News and World Report"; the job of Supreme Court justice is "a mind-numbingly tedious job suitable only for super-nerds trained in legal reasoning like John Roberts" (whose nomination Ann also chose to oppose); and "some jobs [like Supreme Court justice] are so dirty, you can only send in someone who has the finely honed hatred of liberals acquired at elite universities to do them."

This inane argument calls to mind this inarticulate argument made by the late Senator Roman Hruska, Republican of Nebraska, in defense of President Bush's unsuccessful nomination of Harold Carswell as an Associate Justice of the United States Supreme Court in answering charges that he was "mediocre": "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?"

Senator Hruska had a valid point, but mangled it: America is based on the idea of government of the people, by the people, and for the people. Not of the nerds, by the nerds, and for the people.

Former Senator Dan Coats has defended the Miers nomination in words reminiscent of Senator Hruska's well-intentioned, but unhelpful Carswell defense: "If a great intellectual powerhouse is a requirement to be a member of the court and represent the American people and the wishes of the American people and to interpret the Constitution, then I think we have a court so skewed on the intellectual side that we may not be getting representation of America as a whole."

The point is that IQ tests and degrees alone do not qualify anyone for the Supremes and anyone with Ms. Miers' background is more than qualified intellectually and temperamentally, even though there are others even more intellectually and temperamentally gifted.

The White House's fact-filled position statement on Ms. Miers and my comments:

"MIERS' QUALIFICATIONS

Harriet Miers is not well known outside the White House and Texas legal circles, but as Americans learn more about her in the confirmation process they will see that Miers is qualified by experience, intellect, integrity and temperament to serve on the Supreme Court."

Comment: That's why every effort is being made to induce Ms. Miers to withdraw her nomination. Those opposing her don't want to be proven wrong.

"MIERS QUALIFIED BY EXPERIENCE

"As White House Counsel, Miers regularly faces Constitutional issues. Miers advises the President of the United States on presidential prerogatives, separation of powers, Executive authority, and the constitutionality of proposed regulations and statutes.

"Miers has served at the highest levels of this White House. Before becoming Counsel to the President, Miers was Deputy Chief of Staff for Policy and before that Staff Secretary to the President (a job that controls the flow of information to the President in the decision-making process).

"In private practice Miers handled hundreds of cases, litigating at least eight trials to verdict and handling six appeals. Her commercial practice represented a broad range of issues in antitrust, securities, intellectual property and product liability cases, among others (see "Miers' Case Highlights" for case summaries). Miers' clients have included a wide variety of businesses, including Microsoft, Disney, Schering Plough Corporation, Lomas Financial, Chase Manhattan Bank, and Sears Mortgage Corporation. Miers has litigated cases involving millions of dollars in potential exposure.

"Miers clerked for Federal District Judge Joe Estes, and as a lawyer argued in the U.S. Court of Appeals Fifth Circuit.

"Like five of the nine justices sitting on the court last year, Miers has never litigated a U.S. Supreme Court case, but Miers handled litigation in three cases that were petitioned to the Supreme Court (see "Miers' Case Highlights" for case summaries).

"Miers believes in lawyers giving back to the community. Miers strongly advocated voluntary pro bono work while in bar leadership, often flying across the state of Texas to advance pro bono work. Miers also has done significant pro bono work herself.

"Miers' time on the Dallas City Council gave her first-hand experience with Constitutional issues at the local level. If confirmed, Miers would be the only Supreme Court justice who has actually had to comply with the Voting Rights Act and the Constitution in drawing a redistricting map. And as head of the Texas Lottery Commission, Miers dealt with issues of Indian tribal sovereignty that remain relevant today.

"During the consultation process, numerous Senators from both parties encouraged the President to consider potential nominees who were not serving on the Federal Bench. Some encouraged the President to consider people who hold or have held elected office.

"Miers' kind of real-world legal experience would be an asset on the Supreme Court, as Justice Scalia has noted. More than half the cases considered by the Supreme Court in the last term were not constitutional in nature, but other litigation relating to the interpretation of statutes and regulations, among other things, that has risen through the legal system to the highest court in the land.

"It's not surprising, then, that more than one-third of Supreme Court Justices in our nation's history were not sitting judges when nominated to the Court. In fact, the late Chief Justice William Rehnquist had not served on the bench before his appointment to the Supreme Court. Six of the nine justices who ruled unanimously in the historic Brown v. Board of Education had not been judges before being named to the Supreme Court."

Comment: Ms. Miers' resume doesn't need to be padded. The Supremes need her and/or others like her.

"MIERS QUALIFIED BY INTELLECT

"Harriet Miers was a pioneer in the Texas legal community, becoming the first woman to join her prestigious firm, the first woman to run a firm of significant size in Texas, the first woman to head the Dallas Bar Association and the first to be elected to head the State Bar Association of Texas.

"At SMU Law School, Miers was an editor of the Law Journal.

"When the Dallas Court of Appeals found itself in need of legal representation, it turned to three of the city's best lawyers and its judges asked Harriet Miers to be lead counsel.

"Miers has been named one of the '100 most influential lawyers in America' by the National Law Journal and been recognized with numerous professional awards, including the Anti-Defamation League's Jurisprudence Award and the Sandra Day O'Connor Award for Professional Excellence.

"Miers' ability to tackle the most complicated legal issues is demonstrated by her role as lead counsel in cases involving issues such as class action RICO allegations, judicial estoppel in Chapter 7 bankruptcy cases, and public policy considerations in insurance indemnification disputes.

"Miers has also repeatedly dealt with constitutional issues involving the Due Process Clause of the Fourteenth Amendment and right to a jury trial in the Seventh Amendment. Miers also handled one of the only modern cases to address the Habitation Clause of the Twelfth Amendment."

Comment: See prior comment. The American people should be offended by the obnoxiousness of Ms. Miers' elitist opponents.

"MIERS QUALIFIED BY TEMPERAMENT

"Harriet Miers understands the proper role of the judicial branch in our system of government, and shares the President's philosophy of judicial restraint. As a Supreme Court Justice, Miers would, like Chief Justice John Roberts, apply the laws as written based on the facts of a case, not seek to make new laws from the bench based on her personal views.

"Miers is known for her strong work ethic and command of facts, as well as an 'innate sense of fairness,' as one opposing attorney described her.

"Every living former Chief Justice of the Texas State Supreme Court-Republican, Independent and Democrat alike-have urged that Miers be confirmed. Her calm demeanor, reasoned approach and attention to detail would serve her well as a Justice.

"As White House Counsel, Miers was a key member of the President's team to nominate judicial nominees who would strictly interpret the constitution and not legislate from the bench. Miers oversaw the nomination and confirmation of United States Chief Justice John G. Roberts. Miers also served as Counsel when Janice Rogers Brown and Pricilla Owen were resubmitted and eventually confirmed by the U.S. Senate."

Comment: See prior comment. Those people who says Ms. Miers lacks a judicial philosophy remind me of those who say that President Bush does not have a plan for the War on Terror. Like President Roosevelt during World War II, President Bush has a plan: to win by destroying the enemy or securing the enemy's unconditional surrender and to take the fight to the enemy instead of waiting to be attacked in order to have the so-called home field advantage. Likewise Ms. Miers has a judicial philosophy: to support the Constitution instead of to twist it to serve the ends of secular extremism and to respect the prerogatives of the people's elected representatives at both the state and federal level to the fullest extent permitted by the Constitution.

"MIERS QUALIFIED BY INTEGRITY

"Throughout her career in local, state and Federal governments, Harriet Miers has held herself to the highest ethical standards. This has made Miers highly sought after for public service — both elected and appointed. Her public service includes:

White House Counsel to the President of the United States
Deputy Chief of Staff to the President of the United States
Staff Secretary for the President of the United States
Elected at-large to the Dallas City Council
Appointed Chair of the Texas Lottery Commission (5 years)
City of Dallas Judicial Nomination Committee — (makes recommendations to the City Council of potential nominees for municipal judgeships)
Appointed Dallas Ad Hoc Public Housing Committee
Trustee on the Dallas Police and Fire Pension Board
Appointed to serve on the City of Dallas Ethics Review Task Force charged with reviewing the city's ethics rules)

Comment: Ms. Miers' elitist opponents should be ashamed.

"MIERS' CASE HIGHLIGHTS LITIGATION

"The Senate questionnaire asks the nominee to describe in detail 10 of the most significant cases Miers has handled. The following are 9 summaries of cases Miers listed in her questionnaire (the tenth case is listed below under Supreme Court experience):

Microsoft Corp. v. Manning

Miers represented Microsoft against a large class of plaintiffs claiming that Microsoft's DOS program erased data.
Plaintiffs sought over $100 million in damages on behalf of a nationwide class of 10.4 million users of Microsoft's DOS 6.0 program.
Plaintiffs advanced a novel theory of Texas law. They asserted a claim for "diminution in fair market value" of the product, on the basis that there was some risk that in some instances a data-compression feature in the program might lose data. Yet, none of the named plaintiffs had actually lost data, and the plaintiffs' lawyers sought to recover approximately $10 per class member regardless of whether any of them had actually lost data.
Microsoft lost in the trial court and the court of appeals, which certified the class and allowed the case to move forward.
Miers then filed a brief in the Texas Supreme Court, explaining why this was wrong.

First, Miers demonstrated how the legal theory endorsed by the lower courts omitted two essential elements of a tort, causation and injury.
Second, Miers showed that the certified class was itself internally conflicted, and therefore improper, as the interests of anyone who actually had lost data would be forfeited under principles of res judicata.
Third, Miers argued that applying this theory to a nationwide class of 10.4 million people, most of whom had no contacts with the Texas county where the lawsuit was filed, would violate Microsoft's and some of the unknowing class members' rights under the due process clause and the Full Faith and Credit clauses of the Federal constitution.

In an extremely unusual move, the trial court without being asked to by the parties vacated its own class certification ruling.
The trial judge said that Miers did so after having read and been convinced by Microsoft's Supreme Court brief.
The suit was ultimately dismissed.

Disney Enterprises, Inc. v. Esprit Finance, Inc.

Disney Enterprises was a repeat client of Harriet Miers'.
This case involve whether the Texas court could exercise personal jurisdiction over Disney, implicating issues under the Due Process Clause of the Constitution.
Some Disney subsidiaries had contact with the State of Texas, but Disney Enterprises itself did not.
Miers successfully argued that subjecting Disney to the jurisdiction of the Texas State Courts would violate Disney's rights under the Due Process clause of the Fourteenth Amendment.
In order to be subject to the jurisdiction of a foreign court, a corporation must have "minimum contacts" with that jurisdiction, and doing so must be fundamentally fair.
Miers demonstrated that it would not be constitutional to do so.

Westinghouse Electric Corporation v. Rio Algum Ltd.

Miers successfully represented Pioneer Nuclear, a company engaged in the business of mining, milling, and selling uranium in the United States.
Pioneer (along with nearly every other company involved in the nuclear energy business) was sued by Westinghouse on the claim that the defendants had all conspired to rig the Uranium market.
Miers handled settlement negotiations for Pioneer. The result was a dismissal of all claims against Pioneer Nuclear without it paying any money or providing any other consideration to Westinghouse.

Pollner v. Former Directors and Officers of the Lomas Financial Corporation/Lomas Mortgage USA

Miers served as lead counsel representing the Lomas Financial Corporation/Lomas Mortgage USA ("Lomas") and over thirty individuals named as defendants, ranging from the CEO to an administrative assistant. Miers also served as lead counsel to Lomas in settlement negotiations.
Pollner (litigation trustee of Lomas) filed a Directors' and Officers' Liability Case against former officers and directors of Lomas.
The case raised issues regarding the relationship and duties owed between officers and directors of a corporation and the corporation, and whether interest swap transactions violated a state "business judgment rule." The case required extensive analysis of Delaware corporations law.
After months of pretrial activity and negotiations a settlement was reached prior to trial.

Southwest Securities, Inc. v. SunGard Financial Systems Inc. and SunGard Data Systems, Inc v. Southwest Securities, Inc.

Miers represented SunGard Financial Systems, participating at the trial and arguing the appeal.
The case arose when SunGard developed plans to invest in a business to be started by two former employees of Barre & Co. SunGard previously had entered a data services agreement with Barre and agreed not to hire any of Barre's employees for two years. When Barre announced its intention to merge with Southwest, two of its employees approached SunGard to discuss working for, or providing services to, SunGard.
Southwest alleged breach of contract, among other claims, and sought $20 million in actual damages, as well as punitive damages, injunctive relief and fees. SunGard made counterclaims.
The judge directed verdicts for SunGard on all of Southwest's claims except breach of contract which went to the jury. But, the jury found that Southwest suffered no damages. SunGard was awarded damages and attorney's fees on its breach of contract counterclaim. The parties agreed to a "walk-away" settlement after the appeals court remanded the case for another trial.

Perry v. Stewart Title Co.

Miers served as lead counsel for Fannie Mae at trial and argued and briefed the case in the U.S. Fifth Circuit Court of Appeals for Fannie Mae.
After purchasing their home the plaintiffs in the case discovered that the builder had placed the garage and driveway over a local utility's easement. The plaintiffs attempted to rescind the contract for purchase. They brought over 70 different claims at trial.
In addition to a review of real property issues, the case involved several important issues of Federal law, including issues of statutory construction. These included whether the Fair Debt Collection Practices Act applies to the consumer's creditors, Fannie Mae and mortgage servicing companies and interpretation of the term "debt collector" as used in the act. The case also involved issues of state real estate, usury and debt collection laws.

Most Reverend Charles V. Graham v. Interstate Fire & Casualty Co.

Miers was lead defense counsel for Interstate Fire & Casualty Co. in an insurance indemnification law suit.
The Catholic Church was seeking coverage after a jury returned a $101.6 million verdict against the Church based upon eleven separate incidents of sexual abuse and child molestation by Father Kos (Father Kos was indicted and convicted for his acts).
Interstate Fire & Casualty denied coverage because Father Kos's actions were intentional acts that were not covered by the Catholic Church's insurance policies.
One issue in the case was whether Texas public policy precluded insurance coverage for acts of sexual abuse and child molestation.
The case settled prior to trial.

Lomas Mortgage USA, Inc. and Maria Zacharjasz and Jan Zacharjasz v. The Lomas and Nettleton Co.

Miers was lead counsel for The Lomas and Nettleton Co.
Separately, private plaintiff's sought to bring a class action against Lomas and recover punitive damages, alleging a myriad of claims, involving RICO, fraud, misrepresentation, negligence, intentional wrongdoing, breach of fiduciary duty, and breach of an implied covenant of good faith and fair dealing.
Although Lomas faced significant exposure, the case was settled after a favorable ruling on the class action status by the Federal district court.

Truitt v. Manufacturers Hanover Trust Co.

Miers served as lead counsel for Manufactures Hanover Trust Co ("MHTC").
The case involved a fraudulent transfer arising out of the Chapter 7 bankruptcy of Hunt International Resources Corporation ("HIRCO"). The Trustee alleged that certain payments received by "MHTC" on a $37 million loan it made to Planet Investment were constructive fraudulent transfers.
After approximately four years of contested pre-trial proceedings, the case was settled on the eve of trial.
The various pre-trial issues litigated involved the right to a jury trial in bankruptcy court under Supreme Court precedent (Granfinanciera, S.A. v. Nordberg, 109 S.Ct. 2782 (1989)); the appropriate grounds for withdrawal of the reference of jurisdiction form the bankruptcy court to the Federal district court; HIRCO's solvency; whether the contributions of capital to HIRCO by affiliates, releases of collateral by MHTC, and financial accommodations provided to HIRCO's affiliates constituted fair consideration under Federal and state fraudulent conveyance law; judicial estoppel arising from pleading admissions by a party, alter ego; the appropriate credit for co-defendant settlements; expert witness qualifications; and the legal basis, if any, for an award of interest or attorney's fees in a fraudulent transfer action.

"U.S. SUPREME COURT

"The Questionnaire for Supreme Court nominees asks the nominee to describe any litigation Miers has had before the Supreme Court. Like five of the nine justices sitting on the court last year, Miers has never litigated a Supreme Court case, but Miers handled litigation in three cases that were petitioned to the Supreme Court.

Ware v. Schweiker

In this pro bono case, Miers represented Caroline Ware, an indigent mother supporting six children seeking Social Security disability benefits and Social Security supplemental income.
Ware had been denied benefits by HHS after a hearing at which Miers had no lawyer.
Miers handled the appeal to the Fifth Circuit.
The Court of Appeals agreed that the Administrative Law Judge had erred in failing to consider Ms. Ware's subjective complaints of pain in considering whether Miers was entitled to disability benefits, but decided that in light of the record no findings could be made that would change the outcome.
Miers filed a certiorari petition, but the Court denied certiorari.

Popeko v. United States

Miers served as the court-appointed attorney for a prisoner on a habeas petition.
He had been convicted on two counts of transporting forged checks in the mail. The two checks had been forged separately, but he had sent them through the mail in the same envelope.

Miers argued that he should have been convicted of only one charge, which would have significantly reduced his sentence. The Fifth Circuit Court of Appeals disagreed, and because there was a split in the federal courts of appeals Miers appealed to the Supreme Court, which declined to hear the case.

Comment: Those who take the time to study the record will respect Ms. Miers and her accomplishments and President Bush and his good judgment in nominating her.

Unfortunately, the disgruntled continue to do their damage and demand the Miers nomination go away.

Charles Krauthammer, a Miers opponent, concedes that much of the opposition is mistaken:

"[W]hile I remain as exercised as anyone by the lack of wisdom of this choice, I part company from those who see the Miers nomination as a betrayal of conservative principles. The idea that Bush is looking to appoint some kind of closet liberal David Souter or even some rudderless Sandra Day O'Connor clone is wildly off the mark. The president's mistake was thinking he could sneak a reliable conservative past the liberal litmus tests (on abortion, above all) by nominating a candidate at once exceptionally obscure and yet exceptionally well known to him."

Ms. Miers IS exceptionally well known to President Bush AND well qualified.

But Mr. Krauthammer is looking for an easy out, not for the truth about Ms. Miers to come out:

"[T]he perfectly honorable way to solve the conundrum: Miers withdraws out of respect for both the Senate and the executive's prerogatives, the Senate expresses appreciation for this gracious acknowledgment of its needs and responsibilities, and the White House accepts her decision with the deepest regret and with gratitude for Miers' putting preservation of executive prerogative above personal ambition.

"Faces saved. And we start again."

Forget it!

Ms. Miers should testify and receive an up-or-down vote.

If she is confirmed, HURRAY!

If not, another non-Ivy league, non-top tier law school, qualified woman should be nominated. To show that elitism and sexism will not be rewarded.

To increase the likelihood that Ms. Miers will be confirmed, President Bush might signal that: (1) he might ask Justice O'Connor to continue; (2) he might appoint another Harvard Law School Professor and constitutional law specialist, Laurence Tribe, who represented Vice President Gore unsuccessfully in an attempt to keep President Bush from becoming President Bush, has the law schools qualifications elitists want and is a Jewish man (albeit with judicial experience) [Note: just liking about nominating Lovable Larry]; and (3), if Ms. Miers is not confirmed, under no circumstances will he nominate anyone on that list from which the elitists on the right insist he chose, for if he does, he and America lose, and their thoughts on the nominations he will make during the rest of his Presidency will be of no more significant to him that those of the ACLU!

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Email: GaynorMike@aol.com