The nomination of Harriet Miers has led to some predictable backsniping from lefty bloggers, as well as some unexpected opposition from our cohorts to the right. As the first nominee to the high court since Lewis Powell not to have had previous judicial experience, the "c-word" (as in "crony") has been getting a workout today, as well as some unnuanced criticism that she's a "third-rater", a "D-minus pick". More importantly, though, the endorsement of her nomination by Senators Harry Reid, Charles Schumer, and Patrick Leahy will deflate much of the partisan opposition (and TalkLeft's Jerralyn Merritt has kind words for Ms. Miers as well), and barring anything shocking that may turn up in the next few months, she should win confirmation easily.

In desperation, one avenue a number of bloggers from both sides are pursuing is a claim that she is not only a crony, but a crooked one at that. Conservative UCLA prof Bainbridge notes that Ms. Miers' firm paid a $22 million settlement in 2000 over their representation of a client, former U of T placekicker Russell Erxleben, who ran a ponzi scheme. From the left, Nathan Newman quotes the routine post-settlement denial of liability by Ms. Miers, who was the managing partner of the firm at that time, and compares her with Ken Lay: "Boy, no wonder Bush loves her. She never admits responsibility for actions by her underlings either.
But do we really want someone on the Supreme Court whose law firm is a poster child in Texas for lawyer malfeasance?"

Going even further, David Sirota attacks the nominee for having led a

...firm (that) represented the head of a "foreign currency trading company [that] was allegedly a Ponzi scheme. The lawfirm admitted that it 'knew in March 1998 that $ 8 million in [the company's] losses hadn't been reported to investors" but didn't tell regulators. This wasn't an isolated incident, either. The Austin American-Statesman reported in 2001 that Miers' lawfirm was forced to pay another $8 million for a similar scheme to defraud investors. The suit, which dealt with actions the firm took under Miers in the late 1990s, was again quite troubling. As the 9/20/00 Texas Lawyer reported, Miers' firm helped a now-convicted con man 'defraud investors and allowed the firm's [bank] account to be used as a 'conduit.' The suit said "money from investors that went into the firm's trust account was deposited into [the con man's] bank accounts and was used to pay for his 'expensive toys.'"

If you think Miers wasn't involved in any of this - think again. Miers wasn't just any old lawyer at the firm. She was the Managing Partner - the big cheese. True, she could claim she had no idea this was going on. But that would be as laughable/pathetic/transparent as the Enron executives who made the same ones after they ripped off investors.

Harriett Miers may be as crooked as the day is long, but the examples disingenuously cited above do not show that. She was the President, then Managing Partner, of an office which employed close to 400 attorneys. There was no evidence that she had any direct supervisorial role over the attorneys who were implicated, nor was she named as a defendant in any of the lawsuits. Far from running a crooked shell game, a la Enron, or laundering money, a number of lawyers at her firm were accused of committing legal malpractice, not against their clients, but by way of a novel Texas legal theory, against investors of their clients. The attorneys who were involved may or may not have had guilty knowledge of their clients' misdeeds, but the specific accusation against them dealt with whether they had an obligation to betray their clients' confidence, in potential violation of the attorney-client privilege, by informing investors of their suspicions.

Moreover, the operative term in this situation is that the cases settled. There was no admission of liability, simply an agreement by the parties not to litigate the matter further upon an exchange of money. There are numerous reasons a law firm may wish to settle a malpractice action, including some understandable arm-twisting by its insurers, that have nothing to do with its actual culpability. And any large firm is going to settle a legal malpractice claim at some point, regardless of its innocence.

Ms. Miers should no more be held accountable for the sleaziness of some of her firm's clients than public defenders or ACLU counsel are. Lawyers represent people who need legal counsel, and a lot of those people are, interestingly enough, criminals. Unlike Kenneth Lay, there is no evidence that Harriet Miers broke the law herself, or looked the other way while another lawyer at her office did.

We should remember that any chance of defeating the Roberts nomination died when one of the advocacy groups ran an ad exaggerating a legal argument he made in a case involving an abortion clinic bombing. After the ads aired, it was impossible to make a cogent ideological argument against the nomination without seeming to be hysterical, and Roberts breezed through. There will probably be enough legitimate reasons to question her nomination without making stuff up, or exaggerating alleged malfeasance on her part. Lets try to use an Indoor Voice this time.