Window Into Miers’ Legal Thinking in the 1990s Reflects a Glint of Liberalism
In the early 1990s, lawyer-bashing was all the rage. And Harriet Miers didn’t like it one bit.
Then the president of the State Bar of Texas, Miers used her monthly column in the Texas Bar Journal to condemn politicians who were trying to score points by disparaging the legal profession. She suggested the criticism was myopic, and noted that it was coming, by and large, from Republicans.
It was time, she wrote, to “fight back.”
The written record of President Bush’s nominee for the Supreme Court is meager. But her musings in the Texas Bar Journal in 1992 and 1993 offer a window into a different era for Miers.
At the time, she was perched atop a fractious organization of 55,000 lawyers that included law-and-order prosecutors, boardroom advisors and legal clinicians paid in chickens on the border. The crosscurrents were fierce, and Miers fought them by choosing a path that could safely be described as politically moderate and, at times, liberal -- by Texas standards anyway.
She called for increased funding for legal services for the poor and suggested that taxes might have to be raised to achieve the notion of “justice for all.”
She praised the benefits of diversity, called for measures that would send more minority students to law schools, and said that just because a woman was the head of the state bar did not mean that “all unfair barriers for women have been eradicated.”
She was upset that although poverty was rising in Texas, impoverished families received a disproportionately small share of welfare and Medicaid benefits.
And she was an unapologetic defender of her profession, even the oft-maligned “trial lawyer.”
“Lawyers are about seeking the truth, preserving a system to achieve fairness and justice and protecting the freedom of individuals against the tyranny of the majority view,” she wrote.
Miers is believed to have undergone something of a political evolution since then.
Still, her emerging record as a lawyer in Texas could foment concern among conservatives that she would not be a reliable ally -- and maybe it should, said Jim Parsons, a state district judge from Palestine, Texas, a friend of Miers’ and a self-described “dyed-in-the-wool Democrat” who supports her nomination.
Since Bush announced Miers’ nomination, some conservatives have voiced concerns about the “Souter factor” -- a reference to Supreme Court Justice David H. Souter, who was nominated to the court by Bush’s father but has regularly sided with the court’s liberal wing.
They have cited her contention while running for the Dallas City Council that gays deserved the same civil rights as anyone else and her financial contributions to former Vice President Al Gore and the Democratic National Committee.
But Parsons said the answer to Washington’s conundrum was simple. Miers, he said, does not fit into the tidy political paradigm of the Beltway, or at least she didn’t when she was president of the State Bar of Texas.
“I’ve never known her to be either a bra-burning Democrat or the comparable Republican,” said Parsons, who was president of the bar in 1990 and 1991. “She’s just not an ideologue.”
Dallas lawyer Mark Curriden said that although most lawyers in Texas agreed that Miers was “very smart,” conservatives for the most part disliked her work with the bar.
“They don’t trust the bar,” he said. “They don’t want anything to do with it.”
White House spokesman Scott McClellan said Thursday that the administration was in the process of turning over documents to the Senate Judiciary Committee that covered her years as a lawyer and her time as head of the Dallas and state bars.
McClellan sought to explain comments she made in a 1989 Dallas case in which she reportedly said she would not belong to an organization like the Federalist Society, which she characterized as “politically charged.” The society is a conservative legal group that has attracted many Bush administration officials. McClellan said Miers had been supportive of the society.
Miers’ most pointed Texas Bar Journal column came in 1993 in response to an effort by politicians -- including Bush and his father -- to seize upon the public’s distaste for lawyers. The campaign was the foundation of what is now known as tort reform, the effort by executives and conservatives to limit the civil court system and to tackle the perceived -- but disputed -- proliferation of litigation and costly class-action lawsuits.
“We all got painted with the same broad brush. And I think there was great cry and hue within the profession,” said Darrell E. Jordan, bar president in 1989 and 1990, managing partner of Godwin Gruber, a Texas trial and appellate firm, and a self-described moderate Republican. “Harriet was taking up for the fact that the whole profession was getting bashed by some sort of indiscriminate rhetoric.”
Miers, who is not forthcoming about her political views even with friends, cautioned that the bar could not “engage ... in partisan politics.” She did, however, call for a “counterattack” among lawyers who would educate the public -- speaking in front of groups and appearing on talk shows to explain why “the United States has the best legal system the world has ever known.”
In the column, she pointed readers to an opinion piece written by Steve Martin, then president of the Texas Young Lawyers Assn. Martin, she wrote, had “artfully assailed the Republican administration for seizing ‘the perceived low public regard for lawyers to fashion a campaign strategy.’ ”
Martin’s column had appeared in the October 1992 Texas Bar Journal. It criticized Bush’s father, who had denounced “sharp lawyers” in “tassled loafers,” and Vice President Dan Quayle, who had asked in an address: “Does America really need 70% of the world’s lawyers?”
At the time, statistics such as those were favorites of conservatives, who were blaming high-dollar lawyers for dragging down the economy and hurting corporations. Martin called the 70% figure a lie, citing a study showing that the U.S. had fewer than 10% of the world’s lawyers.
His column served as a fervent defense of the profession, citing studies showing a correlation between high numbers of lawyers and economic growth and high literacy rates -- arguments that ultimately lost out as the conservative movement blossomed and scores of tort reform measures were approved.
By 1995, Miers was lobbying then-Gov. George W. Bush -- while serving as one of his advisors -- to let the Texas Supreme Court decide whether to limit lawyers’ fees. She has fought in recent years for Bush’s efforts to restrict the court system, particularly in limiting damages in medical malpractice and product liability cases, and she has earned the endorsement of the American Tort Reform Assn.
“I’m sure she had trouble reconciling the way lawyers were perceived by the conservative forces and her own core beliefs,” Jordan said.
Victor Schwartz, a leading voice in Washington for proponents of tort reform and the general counsel of the American Tort Reform Assn., said he had not read Miers’ columns and conceded that she remained largely an “unknown” to conservative advocates.
But he said he did not necessarily think that conservatives should be put off by her criticism, however indirect, of some ideals that would be seen as traditionally conservative. He said he thought she was not defending all lawyers, but the legal profession, which he said was consistent with the tort reform association’s position.
“If she simply said that you are painting lawyers with too broad a brush -- as being money-grubbing, corruptible people -- that’s OK,” he said. “If she said all lawyers do a good job, that is of some concern. There are, unfortunately, a number of them who engage in practices that we’re not particularly happy with.”
Miers used the pulpit of the Texas bar largely to remind the state’s lawyers of their responsibility to assist the underprivileged and to promote diversity.
“Our Pledge of Allegiance promises equal justice for all,” she told an interviewer from the Texas Bar Journal at the start of her term. “We know that we have failed in fulfilling this promise to segments of our society.”
At times she spoke directly to those who questioned the value of increasing public assistance in the courts. She wrote: “Appeals even to lawyers and judges to help preserve and defend our justice system meet with some of the same responses we expect from those not familiar with the system or its needs: ‘throwing money at a problem is not the answer,’ ‘no new taxes,’ ‘we can and should make do with what we have, after all it has always worked before.’ These responses demonstrate an unawareness of the impending crisis for the judiciary.”
Such arguments were not new to colleagues who watched her persuade law firms to staff legal clinics in poor areas or establish alliances with Latino and African American legal groups.
Craig Enoch, a former Texas Supreme Court justice, recalled that Miers created an annual music revue at Southern Methodist University law school -- her alma mater -- to raise scholarship funds for minority students.
“She really believes that access to justice is as important to our freedoms and our liberties as really anything you can think of,” Enoch said.
Deanna Rodriguez, who worked as the state bar’s minority affairs liaison at the time, said Miers did not differentiate between efforts to achieve ethnic and racial equality and the push for gender equality. Those who worked with Miers were aware of her pioneering status -- she was the first woman hired at her law firm and the first woman to serve as president of the bar -- but Miers never talked about it, Rodriguez said.
“I think it’s very important to have another woman on the Supreme Court. But I don’t know that she would agree,” Rodriguez said. “Isn’t that funny?”