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Beldar Defends Miers' Litigation Skills.--

Beldar has a long post defending Harriet Miers' career as a litigator, including her brief-writing skills. The last case he covers is a constitutional one, "Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex), aff'd mem., 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001)."

It appears that Harriet Miers, on behalf of candidate and President-Elect George W. Bush, became one of the country's exceedingly few lawyers ever to handle a case involving the Twelfth Amendment. (How many Twelfth Amendment cases have John Roberts, Larry Tribe, and David Boies collectively handled? Why, I believe that number would be ... zero!)

Twelfth Amendment to what, you ask? It definitely looks like they're talking about the U.S. Constitution.

You remember that one, doncha? "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves[.]" Gosh, that might have been embarrassing! Win in the Supreme Court in Bush v. Gore, then have another federal court rule it was all for naught if both Bush and Cheney were held to be inhabitants of Texas? Ouch.

I wonder: Who was on the other side of Ms. Miers in that case? Who was trying to undo the 2000 election with this Twelfth Amendment argument? Hmmm — hey, I recognize this guy too: Sandy Levinson. He's only the "W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law" at the University of Texas School of Law. (Translation: heap big professor-guy.) "[A]uthor of over 200 articles in professional and more popular journals." Been a visiting prof at some other pretty good law schools: Harvard, Yale, New York University, and Boston University law schools. Co-author of a leading constitutional law casebook. I actually sorta know Prof. Levinson. Had him for a class, and I edited a book review he wrote for the Texas Law Review; I liked him a lot, and he's definitely one of the national stars on the UT-Law faculty. (I think he blogs some too!)

I suppose that would also make him one of those grand constitutional scholars who spends pretty much all of his time thinking about questions of great pith and moment. You know, the kind of superior, intellectually powerful, big-leagues lawyer that Harriet Miers ... obviously just isn't.

"So tell us, Beldar," you plead, "How'd that case turn out? Did Prof. Levinson save the day for either Al Gore or Joe Lieberman by keeping the Texas electors from voting for both Bush and Cheney?"

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.

Further, though Beldar doesn't mention it specifically, in some cases Miers was the only lawyer in her firm listed as the counsel of record, so her involvement would have been central.

Related Posts (on one page):

  1. A Closer Look at Jones v. Bush:
  2. Beldar Defends Miers' Litigation Skills.--
A Closer Look at Jones v. Bush: Jim excerpts Beldar's post on Harriett Miers' victory in the Jones v. Bush litigation in 2000. I noticed that Beldar didn't dwell on the legal questions litigated in the case, so I decided to take a closer look. My tentative conclusion: The 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.

  In this case, three Texas residents tried to alter the outcome of the 2000 Presidential election on the theory that Dick Cheney was a Texan. Cheney was a Texan, they contended, because he had lived in Texas when he was the head of Halliburton. Texas electors could not vote for the combined Bush/Cheney ticket if Cheney was from Texas because the 12th Amendment states that "[t]he Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves[.]"

  The trial court easily and properly rejected the plaintiffs' claim. First, the three Texas residents lacked Article III standing to sue:
  Because plaintiffs have failed to demonstrate a specific and individualized injury from the impending alleged violation of the Twelfth Amendment and are unable to show personal injury through harm done to non-defendant candidates, the court holds that they do not have standing under Article III to bring this suit.
  Second, Cheney was an inhabitant of Wyoming, not Texas:
  The record shows that Secretary Cheney has both a physical presence within the state of Wyoming and the intent that Wyoming be his place of habitation. It is undisputed that he was born, raised, educated, and married in Wyoming and represented the state as a Member of Congress for six terms. After additional public service, he eventually moved to Dallas, Texas to become the Chief Executive Officer of Halliburton Corporation ("Halliburton").
  On or about July 21, 2000 Secretary Cheney declared his intent to return to his home state of Wyoming. On or after that date, and before today, he traveled to Wyoming and registered to vote there, requested withdrawal of his Texas voter registration, voted in Wyoming in two elections, obtained a Wyoming driver's license (which, in turn, resulted in the voiding of his Texas license), and sold his Texas house. He advised the United States Secret Service that his primary residence is his home in Jackson Hole, Wyoming, and he retired from employment with Halliburton.
  The Fifth Circuit then heard a very quick appeal. The district court decision had come out on December 1, 2000, and the Fifth Circuit heard argument and entered a one-line affirmance on December 7th: "All requested relief is DENIED." The plaintiffs filed an emergency petition asking for more time to file a cert petition just a few days before the Texas electors were to meet, but the Supreme Court denied it. A cert petition was eventually filed — I'm not sure exactly when — but it was denied after the electors had met on December 18th.

  Perhaps Beldar intends his post to be tongue-in-cheek, so maybe I'm just not getting the joke by looking at the merits. If so, my apologies. But I don't think the opinions in this case provide a lot of insight into Miers' skills in constitutional law. I haven't read the briefs, so maybe there was a lot more to the case than I can see from the opinions. (I tried, but can't get the briefs via my Westlaw subscription.) And to be clear, I have heard (and don't doubt) that Miers was a very solid litigator. But three random dudes were trying to overturn a Presidential election on the theory that Dick Cheney was a Texan, and it was pretty clear that Cheney just wasn't a Texan. If there were tricky legal issues in the case, they're not obvious to me; the lack of standing was pretty clear, and it's hard to imagine a legal definition of "inhabitant" under the Twelth Amendment that could have made Cheney a Texan given the factual record. Nor am I sure what legal issue could have been presented in a petition for certioriari, as the district court decision was pretty fact-specific.

  Based on the opinions that were filed, at least, it seems to me that Miers' victory in Jones v. Bush doesn't give us a lot of insight one way or the other. Maybe I'm missing something, but that's my tentative sense of things.

Related Posts (on one page):

  1. A Closer Look at Jones v. Bush:
  2. Beldar Defends Miers' Litigation Skills.--
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