Strengthening Constitutional Self-Government

No Left Turns

Miers as constitutional lawyer

Steve Hayward calls our attention to this excursion through Harriet Miers’s record as a litigator.

One of the highlights is her participation in Jones v. Bush, a 12th Amendment challenge to the results of the 2000 election, based upon the claim that George W. Bush and Dick Cheney were allegedly both inhabitants of Texas. As Beldar notes, Miers’s opposing counsel was the formidable
Sanford Levinson, who would make anyone’s short list of distinguished liberal con law types. Here’s Beldar’s summary of the result:

Well, the short answer, friends and neighbors, is that Harriet Miers just flat out kicked the distinguished Prof. Levinson’s butt in court. On just about every issue, too. And she did it not once, not twice, but three times: federal district court, then again on appeal in the Fifth Circuit, and then again in the U.S. Supreme Court — another one of those "cert. denied" notations.


You ask breathlessly: "But is that ’cert. denied’ really a win?" Why yes, friends, it surely is. Because, you see, when you’ve won in the lower courts, then your job as a lawyer is to persuade the Supreme Court not to take the case. Which is exactly what Harriet Miers did here — after first winning so convincingly in the federal district court that the Fifth Circuit, on the way up, didn’t even bother to write an opinion of its own.

There are some who would minimize the significance of this case, arguing that "[t]he Jones case seems pretty straightforward, and it’s hard to draw much of a conclusion about Miers’ legal skills from the opinions that were filed and the decisions that were reached."
Others remind us of the stakes and argue that the issues were far from clear. Among them is the aforementioned Professor Levinson, who co-authored a law review article on the subject.

I don’t have time at the moment to evaluate Levinson’s lengthy argument, other than to note that it’s not implausible, suggesting that the case was not a slam-dunk for Miers and Bush. For more, you might consult this article, which suggests a certain inventiveness and lawyerly plasticity on Miers’s part.

In general,Hugh Hewitt’s brief on Miers’s behalf is worth reading.

Update: This article reports Levinson’s comments on the case and on Miers:

Levinson, who described the case as a "law professor’s dream," said that part of what made the case fun for him was that he could argue the case like a Republican, meaning that he and his colleagues based the case on a narrow reading of the Constitution going back to the Framers’ original intent. Miers took the opposite tack, sounding more like a liberal, arguing in her brief to the court for a "broad and inclusive" interpretation of the Constitution based on the belief that the clause makes no sense in today’s world. She simultaneously focused on technicalities -- Cheney had forwarded his mail to Wyoming from his Dallas home and canceled his Texas driver’s license.

Levinson said that to extrapolate from this case that Miers was a closet liberal would be a mistake. "This is a person who has almost no experience doing constitutional law, and the one case she is involved with is on a subject almost no one has talked about, at a time of extraordinary partisan interest," he said. "The only thing to infer from this is that she’s a good lawyer." A federal judge dismissed the case on Dec. 1, 2000, the day it was filed.

Discussions - 1 Comment

Perhaps an important distinction is lost here. There is a difference between being an effective lawyer, and being a conservative supreme court justice (conservative being the key word here). I am not aware of anyone who is saying Miers’s is not a good, if not "outstanding" lawyer. I would be surprised if she was not a good lawyer, for she did rise to her current position. How does this mitigate the fact that she simply is not a nominee in the same vein as a Thomas or Scalia? This post seems to be saying "yep, she is not a complete idiot - she is in fact a good lawyer"...

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