October 06, 2005

Et tu, Ilsa: It's hard to oppose the Miers nomination when she's even getting dissed by the Brownshirts:
Harriet Miers 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. Her greatest legal accomplishment is being the first woman commissioner of the Texas Lottery.

I know conservatives have been trained to hate people who went to elite universities, and generally that's a good rule of thumb. But not when it comes to the Supreme Court. First, Bush has no right to say "Trust me." He was elected to represent the American people, not to be dictator for eight years.

Among the coalitions that elected Bush are people who have been laboring in the trenches for a quarter-century to change the legal order in America. While Bush was still boozing it up in the early '80s, Ed Meese, Antonin Scalia, Robert Bork and all
the founders of the Federalist Society began creating a farm team of massive legal talent on the right. To casually spurn the people who have been taking slings and arrows all these years and instead reward the former commissioner of the Texas Lottery with a Supreme Court appointment is like pinning a medal of honor on some flunky paper-pusher with a desk job at the Pentagon — or on John Kerry — while ignoring your infantrymen doing the fighting and dying.

Second, even if you take seriously William F. Buckley's line about preferring to be governed by the first 200 names in the Boston telephone book than by the Harvard faculty, the Supreme Court is not supposed to govern us. Being a Supreme Court justice ought to be a mind-numbingly tedious job suitable only for super-nerds trained in legal reasoning like John Roberts. Being on the Supreme Court isn't like winning a "Best Employee of the Month" award. It's a real job.
Of all the reasons that may exist to oppose Harriet Miers, the fact that she graduated from a non-prestigious law school thirty years ago is perhaps the weakest, and the one least likely to garner sympathy from the public. If anything, lawyers who reach the top of their profession, as Ms. Miers surely has, after attending such a school is all the more reason to judge her credentials positively. The Supreme Court is not a law review, thank god. It should have a diverse representation of members, representing the broad sweep of America, limited only by achievement and knowledge of law.

Notwithstanding her positions on the constitutionality of abortion or of civil rights for homosexuals, she has accomplished a great deal in her legal career, a career not limited to running the Texas State Lottery, as Ann of a Thousand Lays so condescendingly mentions. She broke the barrier against her sex at a major law firm in Texas, ran the Bar Association in Dallas, then later in the whole state of Texas, and served on the Dallas City Council, before becoming White House Counsel. It may not be unfair to label her a "crony" of the President, but Byron White was no less a "crony" of JFK when he got tabbed, and his credentials were every bit as similar as Miers'. If Bush's other crony appointments were akin to Harriet Miers, the issue probably wouldn't come up, just as it didn't with President Kennedy. Even if I choose to oppose her nomination, her accomplishments entitle her to my respect.

UPDATE: Greetings and salutations to the people joining us from Reason. Some interesting critiques in the comments section over there, but one I'd like to address concerns a number of posters who took exception with my comparison of the qualifications of Harriet Miers and Byron White. One person noted, somewhat ironically, that White, unlike Miers, was a Rhodes Scholar, the top graduate in his class at Yale Law School, and clerked for the Supreme Court. That indeed is an impressive track record, and I might also add that he finished second in balloting for the Heisman Trophy and played a bit for the Detroit Lions and Pittsburgh Steelers.

What any of that has to do with his qualifications to sit on the Supreme Court two decades later escapes me, except showing that Whizzer White did very well in school. So did Harriet Miers; although her law school grades haven't been released, as far as I know, we do know that she clerked for a U.S. District Court judge after graduating, and was the first woman to be hired as an associate by one of the more prestigious firms in her state. Remembering that she doesn't come from one of the prominent families in the Lone Star State, those credentials suggest that someone back then thought she exhibited talent. SMU wasn't Yale Law School, obviously, but it should be noted that during the period Byron White matriculated there, and on through to Ms. Miers' final year of law school (1969), Yale was a mens-only college. It took an Act of Parliament in 1977 to open the selection criteria for the Rhodes Scholarship to include women. Being a Rhodes Scholar or finishing first at Yale simply wasn't going to be in the cards for her.

When JFK nominated his WWII buddy (White had been an investigator for the Navy looking into the future President's PT-boat mishap), his legal career was remarkeably similar to Harriet Miers. Both had spent most of their time in private practice in Flyover Country before hooking up with a future President. Both worked in the White House for the new President (White as an Assistant-AG; Miers in a number of positions, including White House counsel) before being nominated to the Supreme Court. Neither had exhibited much professional inclination to constitutional law before being nominated. I stand by my comparison.
Doodoodoodoodoo, today is my birthday.
Doodoodoodoodoo, I'm goin' have a good time...

In the meantime, check out this column from Slate, on "guilty pleasures" at the cinema. He's right about Denise Richards, by the way....

October 05, 2005

YBK [Part 23]: What was foreseen back on June 1 has come to pass. From today's Washington Post:
Two weeks before a new, more restrictive national bankruptcy law goes into effect, financially strapped Americans are rushing to file for protection from their creditors, with filings climbing to an unprecedented average of 13,000 a day last week.

Week after week records are toppled. Last week's 68,287 filings surpassed the record set the week before by 24 percent, and this week's total is likely to be higher, according to data released yesterday by Lundquist Consulting Inc., a financial research firm. Daily filings averaged 10,367 in September, compared with an average of 6,079 in September 2004.

The surge is in anticipation of the new bankruptcy law, long sought by the financial industry, which takes effect Oct. 17. The law will make it harder and more expensive for people to completely wipe out their debts under Chapter 7 bankruptcy.

"We are seeing a rush, mainly from people we saw a year ago," Northern Virginia bankruptcy lawyer Robert Weed said. A year ago his clients thought they would be able to work their way out of debt without filing for bankruptcy, he said, "but now they're in a panic to get in before the law is changed."

That is what prompted Samantha Gordon, 28, of Woodbridge to file. "I was putting it off and putting it off," the single mother of three said. Gordon, a patient-care coordinator, said she kept hoping to pay off her debts, but every time she had thought she was close, "a new bill, mostly medical, came up." She decided to take action after her father alerted her about the new law.
Along with using the "P-word" (as in "panic"), the Post did report some good news today: the office of the U.S. Trustee, the branch of the Justice Department that administers the Bankruptcy Court, agreed to temporarily waive enforcement of the provisions of the new law that mandate credit counseling to residents in Louisiana and the Southern District in Mississippi due to this season's hurricanes. Since none of the approved credit counseling agencies is physically located in the state (in fact, the new law specifically permits "credit counseling" to be done over the internet), this may have been done, as Prof. Robert Lawless suggests, to alleviate some of the pressure now on Congress to suspend the effective date of the bill by tossing a bone to hurricane survivors.

In the meantime, other provisions of the new law are set to further the devastation started by the Furies named Rita and Katrina. With homes and businesses still underwater, the local courts out of operation, trained professionals in the bankruptcy field having to relocate their offices, and the paperwork necessary under the new law now part of the debris rimming the Gulf Coast, victims of the storms are now placed in a predicament. Without any time to prepare for the traumatic experience of filing a bankruptcy petition (most of my clients struggle through their debts for years before finally succumbing to the inevitable), and now without the means of proving hardship that Congress, in its infinite wisdom, demanded when it passed the Bankruptcy Reform Act last spring, residents of the Gulf Coast now have nine days to decide whether to take this step, or risk the onerous provisions when the Bankruptcy Code changes on October 17.

Proponents of the new law point to 11 U.S.C. §707(b)(2)(B), which states that "...the presumption of abuse may only be rebutted by demonstrating special circumstances, such as a serious medical condition or a call or order to active duty in the Armed Forces, to the extent such special circumstances that justify additional expenses or adjustments of current monthly income for which there is no reasonable alternative." Thus, the argument goes, all a filer will have to do is explain to the judge that Hurricane Katrina destroyed his home, removed his livelihood, and all will be hunky-dory in the end. Former Bush Administration appointee Todd Zywicki observes:
The legislation simply requires high-income filers who can repay some or all of their debts to do so as a condition for filing bankruptcy. If a person has lost his job and income because of the hurricane, then the legislation permits that person to file bankruptcy just like under the current rules. The means-testing provisions of the legislation specifically allow for "special circumstances" that mean that those provisions of the legislation should not apply to a given bankruptcy filer--clearly the destruction of a person's house and job easily fit within those provisions of the legislation.
Assuming that a debtor, defined by Prof. Zywicki as being "upper income" because he earns over the median income for his state, which in Louisiana was $35,523 per year last year, will be able to retain a lawyer, dredge up the tax returns and credit card invoices and submit the proper paperwork that will be necessary to prove "special circumstances", there remains one tiny problem: Congress already explicitly rejected an attempt to include natural disasters, such as hurricanes, tornadoes and earthquakes, as "special circumstances". As Professor Elizabeth Warren points out,
Indeed, the "special circumstances" provision doesn't come close to doing the work the Congressman claims. In one of the many ironies that mark the amendments to the bankruptcy bill, any adjustment requires additional documentation, and, for those whose papers are somewhere in the Gulf of Mexico, the plain language of the statute seems to provide no relief. For hundreds of other blows inflicted by the bankruptcy amendments, such as the increased rights of landlords to toss out tenants or the new risks facing someone who has drawn down a cash advance on a credit card, there is no pretense of relief of any kind....
Of course, there are some judges who will gladly rule that Hurricane Katrina is a "special circumstance"; as I pointed out back in March, there will be judges who will pretty much carve out a "special circumstances" exception to any vicissitude of life, while other judges will limit themselves to the examples specifically enumerated in the statute (ie., "a serious medical condition" or "order to active duty"). The fact that Congress voted down an attempt to include natural disasters as an enumerated exception will be a powerful aid to those judges who are willing to follow the more draconian course; it may be years before any of the appellate courts has a chance to spell out what the provision means, and provide some degree of consistency in how it is interpreted. In the meantime, without Congressional intervention at this late stage, we are set to witness pandemonium the likes of which haven't been seen in the federal courts in our nation's history, all of which will create many losers, but only one small class of winners: Lawyers. Special circumstances? Laissez les bons temps rouler !!

October 03, 2005

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.