Miers: counsel of record in 22 cases that
were litigated.
NY Times
As a Private Lawyer, Miers Left Little for the Public Record
By JONATHAN D. GLATER
Published: October 10, 2005
IRVING, Tex., Oct. 7 - Harriet E. Miers, President Bush's nominee to the
Supreme Court, spent the bulk of her 30 years in private practice representing
clients in relatively mundane business deals and contract disputes. But most
cases heard by the court do not grab headlines.
Ms. Miers has come under fire from critics who say she lacks any substantive
experience with weighty constitutional issues. But she has plenty of practice
with the less provocative legal questions posed in most of the court's
cases.
Of the 80 cases before the Supreme Court last term, 25 involved questions
directly affecting businesses, according to data collected by Goldstein &
Howe, a Washington law firm specializing in Supreme Court litigation. While 33
cases raised questions of constitutional law, 45 involved the interpretation of
a law, one involved an interstate dispute and one involved a dispute between a
state and the federal government.
That was a typical year, said Thomas C. Goldstein, a partner at the firm.
The Supreme Court's caseload is made up of "relatively mundane questions of
federal law, mostly about statutes, not the Constitution, that are important to
little corners of the legal universe but are not on the hot-button social
issues of the day," Mr. Goldstein said.
"It may be that abortion is the most important question that the court
decides," he said, "but it's close to the least frequent."
Most of the cases Ms. Miers handled were settled out of court, leaving
little for the public record. According to the Congressional Research Service,
Ms. Miers has been counsel of record in 22 cases that were litigated.
In 1975, she was the court-appointed counsel for a man seeking to overturn
his 1960 conviction for transporting counterfeit securities across state lines.
She lost that appeal. In 1981, Ms. Miers advocated on behalf of a woman seeking
Social Security disability benefits. The court turned her down. In 2000, she
successfully represented Gov. George W. Bush when a group of Texas voters sued
to block the state's electoral college representatives from voting for both Mr.
Bush, then a presidential contender, and his vice presidential choice, Dick
Cheney.
But the majority of Ms. Miers's time as a lawyer with the Dallas law firm
Locke Liddell & Sapp was spent counseling clients in business matters. She
has represented the Walt Disney Company and SunGard in contract disputes,
Microsoft in a consumer class-action case, and investors in a real estate
transaction that soured.
In 1998, Ms. Miers represented Disney Enterprises in a dispute with Esprit
Finance, which had entered into a contract to promote a Disney concert tour in
Mexico. The financing fell through, and Esprit sued Disney in Texas state
court; Disney lost and appealed, arguing that Texas did not have jurisdiction
over Disney. The appeals court agreed.
One of Ms. Miers's most significant cases, according to lawyers who have
worked with her, was the Microsoft case, Microsoft v. Manning. The company
appealed the decision of a federal trial court to certify a class of
purchasers, who argued that Microsoft's MS-DOS 6.0 software was defective, said
Jerry Clements, a partner at Locke Liddell & Sapp who worked on the case
with Ms. Miers. The appeals court upheld the class certification, but the trial
judge reversed her own decision, Ms. Clements said.
"That was the beginning of a series of cases in Texas that really started
shifting the state into a position of not being so much of a plaintiff's haven
for class actions," Ms. Clements said.
In 1998, Ms. Miers was hired by SunGard, a technology company based in
Wayne, Pa. According to court documents, Southwest Securities sued after
SunGard began negotiating a business opportunity with two employees of a
company that Southwest later merged with. Southwest contended that the talks
violated the terms of an agreement between the predecessor company and SunGard.
The case was eventually settled.
"It was a pretty standard case, in terms of just run-of-the-mill commercial
litigation," said Joe B. Harrison, a lawyer at Gardere Wynne in Dallas, which
represented Southwest Securities. "There wasn't anything unique about the facts
or the law that I recall."
He added that Ms. Miers was "well prepared, very courteous."
Lewis T. LeClair, a partner at McKool Smith who faced Ms. Miers in another
contract case, said she was a "different kind of lawyer." "You can think of the
Mark Laniers, the Rusty Hardins," he said, referring to some of the more
flamboyant courtroom advocates in Texas. "Harriet's not cut from that
mold."
Until Ms. Miers appeared on the case, Mr. LeClair said he thought he had won
the dispute, which arose when one investor in a deal to buy the Thanksgiving
Tower in Dallas ultimately did not participate.
According to court documents, Ms. Miers's client, Anros Thanksgiving
Partners, agreed to invest in the purchase of the tower in 1988 and provided a
$5 million letter of credit, basically a check that could be cashed if Anros
did not provide the pledged financing at the closing. Anros requested multiple
postponements of the closing date, and eventually one of Anros's co-investors,
Bear Stearns Companies, drew on the letter of credit.
The purchase took place without Anros. Bear Stearns then sued Anros for
failing to help finance the investment and won a summary judgment motion on the
eve of trial, Mr. LeClair said, but not before Ms. Miers had brought the case
back from the brink.
"She did an excellent job," he said. "I wrote her a letter after it was
over, saying I never really worried about the case until she got into it."
Margaret Donahue Hall, a partner at Locke Liddell & Sapp, also offered
plaudits for Ms. Miers. "She is really a unique person, and she does not go
about things the way someone who rises typically does," Ms. Hall said. "In my
heart of hearts, I know she'd make a great Supreme Court justice, but it's hard
to put into words why."
And that is the biggest challenge for Ms. Miers's supporters, who can point
to competence, toughness and niceness but offer few signs that she has wrestled
with the sensitive topics that the public seems to care about most.
Chief Justice John G. Roberts Jr., who was confirmed by the Senate last
month, produced a rather spare paper trail that nonetheless looks exhaustive
when compared with the one left by Ms. Miers. Senators grilled him about his
thoughts on capital punishment, affirmative action and the right to die.
In all Ms. Miers's cases on soured contracts and other corporate matters,
there are scarcely even hints of what her thoughts on such issues might be.
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