October 08, 2005

Miers May Care About Black People

by PG

While the shortage of information about Harriet Miers makes determining her degree of conservatism difficult, possibly she has more liberal views on race and voting than Chief Justice Roberts does, based on one case in which she was neither a party nor an attorney*. It has been reported in several mainstream media outlets but drawn relatively little attention from bloggers. From the Dallas Observer:

Mike Daniel is one of a tiny coterie of tough activist lawyers who in the 1970s and '80s pushed through a series of federal anti-segregation, anti-housing discrimination, anti-disenfranchisement lawsuits that changed the city forever. Of that barrage of litigation, the piece that struck the deepest blow was a suit seeking the overthrow of the old city council system.
Daniel represented plaintiffs Marvin Crenshaw and Roy Williams, who argued that Dallas had used a series of tricky arrangements to prevent black people and Latinos from achieving power on the city council. When their lawsuit was coming to a head in 1991, Harriet Miers was nearing the end of her single two-year term as an at-large city council member.
Daniel and Roy Williams, his former client, remember Miers as a smart and thoughtful council member who eventually came to support a version of the all single-member-district "14-1" council system they were seeking.
"She's really not an ideologue," Daniel says. "She came over to 14-1 way sooner than the mayor."
The mayor at the time was Annette Strauss, nominally a Dallas liberal, sister-in-law to Robert ("Mr. Democrat") Strauss, who was a former chairman of the Democratic National Committee. Both Daniel and Williams remember Miers as far more interested in fair representation issues than Strauss or any of the other big Democrats still in town in those days.

The case, Williams v. City of Dallas (734 F.Supp. 1317, N.D.Tex., 1990), was a suit charging violations of Section 2 of the Voting Rights Act, stemming from the Dallas system in which the city was divided into eight districts that each elected a city councilmember, and then three at-large councilmembers were elected by the whole city. This was problematic for two reasons: African Americans and Latinos had difficult raising the hundreds of thousands of dollars necessary for an effective citywide campagin, which resulted in no African American or Latino person (except in a single rare instance) being elected at-large; and because the district lines had been drawn to pack African Americans into two districts in which they were 75+% of the population, with the remaining African American population split between two districts in which they could not make up a significant voting bloc. In other words, the system was the worst of both majority-minority districts and vote dilution. There also was an "Citizen's Charter Association ("CCA")," which controlled City Council elections as an all-white, "non-partisan slating group."

Judge Buchmeyer's opinion in the case is lengthy but occasionally entertaining; he writes the kind of footnotes to which I fear I would succumb if I were a judge. "Accordingly, the Findings of Fact in this opinion are exhaustive. [FN3] Because of their length, this Memorandum Opinion--for convenience [FN4]-- will begin with a brief discussion of the applicable law..."
"FN3. And exhausting.
"FN4. See footnote 3."

At the time, Miers was an at-large city councilmember, and she testified in the case.

Harriet Miers (Place 9, at-large) testified that the 8-3 system was unfair because the number of single-member districts needed to be increased so there would be additional black and Hispanic representation on the Council [...] Miers, TR. V (4-6). Again, the City's position that -- in these statements by Miers, she did not actually use the words "the 8-3 system was unfair" -- is disingenious, to say the least.
Harriet Miers testified she spent about $ 200,000 in 1989. For example, Harriet Miers testified that she would not be surprised to find that most of her contributions in the 1989 Place 9 race came from either North Dallas or "interests that are located or reside in North Dallas." [...] Harriet Miers testified that "in touring around during the campaign it was my impression that there were circumstances in the southern sector [of Dallas] that didn't appear to exist in the northern sector and it was troublesome to me."
While the problem of ensuring racial minorities' voting power is extremely complicated (and thus this post is titled somewhat facetiously), I contrast this with John Roberts because Sen. Russ Feingold questioned him during his confirmation hearings about Section 2 of the Voting Rights Act and the Reagan Administration memos Roberts wrote that advocated limiting its reach.

* Texas attorney Beldar makes a case for Miers's being a successful litigator, though here again shortage of information is a problem. In the absence of publicly-available detailed documentation of how cases went, he resorts to remarks like:

"Ms. Miers apparently persuaded that court"
"meaning, in all probability, that she filed a persuasive brief"
"although I don't know what ultimately happened after this appellate opinion against Microsoft was issued, my guess is that the case settled"

Also, viewing denials of cert as proof of Miers's ability when they were to her client's advantage (Jones v. Bush, a Twelfth Amendment challenge to Cheney's claim of Wyoming residency for the 2000 election, which was quickly dismissed, though without prejudice, by the lower courts for plaintiff's lack of standing), and as proof of the Supreme Court's short docket when they weren't (pro bono cases Ware v. Schweiker and Popeko v. United States) is superficially inconsistent.

Even when Beldar notes something I'd consider unquestionably positive -- Ms. Miers's pro bono work (which included time as a boardmember of the Legal Services Network of North Texas) -- he undercuts it slightly with his construals of the record: "'Now ably represented by volunteer private counsel, obtained through a community legal aid service...' [...] Judge Rubin still went out of his way to compliment Ms. Miers." [his emphasis]

What is left out of Beldar's ellipsis is "... an applicant for Social Security Disability Benefits and for Social Security Supplemental Income seeks reversal of the Secretary's decision, made after a hearing at which she was not represented, denying her those benefits." [my emphasis] Again, kudos to Ms. Miers for staying in the public interest trenches, which many bigfirm lawyers abandon after doing the necessary for law school graduation, but I don't think I'd consider Judge Rubin's statement to be a great compliment so much as it is an acknowledgment that people are generally better off in the byzantine administrative law world when they have representation of counsel, the majority opinion in Walters v. Nat. Assn. of Radiation Survivors (via 3YoH) notwithstanding. This reading of the phrase is further supported by the judge's statement,

The administrative process is often, and frequently properly, criticized because it moves too slowly. Now that Mrs. Ware has counsel, the objection is made that "at certain junctures" the system moved too quickly for her, that it was too complex for her to understand, and that she was overwhelmed by its difficulty. Counsel also contends that Mrs. Ware was prejudiced by her earlier lack of counsel. [...]
While hearings before the ALJ are not adversary in nature, a lawyer or other counsel may be of great service to claimants in administrative proceedings. See Goldberg v. Kelly. Mrs. Ware was plainly and unequivocally told that she had a right to be represented by "an attorney or any other qualified person." She elected to proceed without representation. Although the Social Security Act gives applicants a right to representation, counsel is not thrust upon claimants. The Secretary is not provided with funds to retain counsel and there is available neither a public prosecutor of claims nor an independent ombudsman to assist claimants. Absence of counsel does not of itself impugn the hearing. If, however, Mrs. Ware can prove unfairness at the hearing or clear prejudice as a result of the absence of counsel, she is entitled to remand.
We find no evidence of either unfairness or prejudice here. Counsel, we are told, might have called Dr. Chambers. Other than Mrs. Ware's written statement, however, there is no support for the thesis that this might have been helpful. Therefore, the absence of counsel at the hearing in August 1978 cannot be considered prejudicial.
Mrs. Ware contends, in the alternative to the arguments previously considered, that the ALJ failed in his duty to develop fully all relevant facts and that this was exacerbated by her lack of counsel.
As we have already pointed out, administrative hearings under the Social Security Act are not adversary proceedings. The hearing examiner has the duty, accentuated in the absence of counsel, to develop the facts fully and fairly and to probe conscientiously for all of the relevant information. It is his obligation to develop a full and fair record. Courts of appeals have found good cause to remand cases in which the ALJ has failed diligently to explore all relevant facts, especially where the claimant was uneducated and appeared without representation, if an adequate showing is made that the absence of counsel prejudiced the claimant.
Here we find no violation of the ALJ's duties. The first charge of dereliction does not relate to incompleteness of the record, but to the ALJ's failure to warn Mrs. Ware that she bore the burden of proof and to instruct her on the value of representation. That such advice would have been appropriate we agree. Absent a showing of prejudice resulting from failure to give it, a remand is not required.
Nor can I agree with Beldar's assessment of Miers's role in Popeko v. United States: "Interesting how these federal judges seem to be turning to her when they have an unusual or exceptional case that needs really creative lawyering, even if it's not going to produce a fee."

I quite likely am misreading it due to undereducation in criminal law, but when the judge's opinion says, "In the instant case Popeko reasserts the identical argument which he made in the Rule 35 proceeding," that doesn't sound particularly creative. Whereas if the judge said, "Popeko now asserts a new theory of procedural due process," I would have been impressed.

Beldar says in the comments to the post that Texas firms generally are not as promiscuous as East Coast firms about putting partners' names on work in which they haven't directly participated. However, Miers is listed as counsel to Microsoft in Shaw v. Broadcast.com, Inc. (2005), despite not having been involved in the case since 2000 at the latest (as she began working for the White House in January 2001).

October 8, 2005 03:15 PM | TrackBack

PG, thank you for the trackback ping and the link here. The cases I discussed are all part of the public record, and I certainly am content for the most part for folks to read them and to draw their own conclusions.

My opinion about Ms. Miers' qualities as a courtroom lawyer are based on second-hand information, but it is a wealth of second-hand information, and I've explained its various sources in other, adjacent posts on my own blog. It includes, for example, quotations about her from a trial judge before whom I've appeared and know to be excellent judge.

With particular respect to the Fifth Circuit comments: My clerkship with now-Chief Judge Carolyn D. King on the Fifth Circuit was during 1980-1981. Judge King (then in her second year on the bench and known as "Carolyn Randall"), Judge Rubin, and Judge Gee sat together on a so-called "screening panel" during that entire year, through which they jointly decided a large number of cases that for one reason or another had not been placed on the Fifth Circuit's oral argument calendar. Through Judge King and through my counterpart clerks in Judge Rubin's and Judge Gee's chambers (and two of Judge Gee's clerks had been co-editors with me the year before on the Texas Law Review), I felt as though I gained a pretty good appreciation for all three of those judges.

The Ware case was in fact decided during my clerkship, and Judge King was on the panel (as my post noted), but I didn't work on it. I did, however, read dozens and dozens of the late Judge Rubin's opinions during that year, and had some further, lesser dealings with him in the first few years after my clerkship (about which, more in a moment). It's quite likely that he might have noted in an opinion that the claimant had not been represented by counsel at her administrative hearing. It is entirely inconceivable to me that he would have gratuitously thrown in the word "capable," though, as a modifier unless he was specifically intending to make a compliment. The placement of the statement was also atypical if it were not intended as a compliment. I respectfully submit that your suggestion to the contrary strikes me as unlikely and, well, a little bit petty under the circumstances, but I may be over-reacting.

My belief — an inference, but one based on more than just a guess or a hunch — is that in the Popeko case, Ms. Myers was specifically asked by one of the judges of the Fifth Circuit to take the case on, which in turn would likely have been based on that judge's review either of pro se appeal papers, something unusual in the district court's record, a recommendation from a Fifth Circuit staff attorney, or a combination of those factors.

That's based both on my observation and understanding of the Fifth Circuit's practices during my clerkship, and my own participation in pro bono work in the next few years when I was an associate at Houston's Baker Botts. During my first year of practice there, through the efforts of Vinson & Elkins partner Scott Atlas, we set up an informal network of former Fifth Circuit clerks working at large Texas law firms that were supportive of pro bono efforts. We were regularizing, if you will, a practice that had gone on for many years on a more ad hoc basis. Each participating firm had a designated contact person; I was the contact at Baker Botts. The judges of the Fifth Circuit each had a list with the contact information, and would call upon us when they had particularly challenging cases — sometimes cases in which they feared that the Circuit's jurisprudence might otherwise suffer, others in which they thought the issues were particularly complex or the stakes especially high.

For example, I was asked to handle a capital murder case raising ineffective assistance of counsel issues that turned on the question of whether twenty-plus years of Fifth Circuit precedent had been overruled by an intervening case from the Supreme Court; it led to two separate Fifth Circuit opinions with an intervening evidentiary hearing back in district court. A colleague of mine at Baker Botts actually got a Supreme Court oral argument from another such assignment. Routine court appointments generally went on a rotating basis to a group of lawyers who needed and accepted the fairly meager pay that the court could dole out; our group, however, worked uniformly on a pure pro bono basis.

To my insider's eye, and with my knowledge of Ms. Miers' firm and the extremely small likelihood that while employed there she'd have been lining up for the minimal court-appointed counsel fees, the reference to "court appointed counsel" in the Popeko opinion strikes me as another, perhaps less obvious acknowledgement of the court's appreciation for her volunteer service; and as is somewhat obvious from the opinion, the issues presented were anything but routine, verging instead on bizarre.

It seems likely to me that Ms. Miers' listing among counsel of record in the opinion in the Shaw case that was issued after she'd already left Locke Liddell was based on either the Clerk's reliance on the case's original docket sheet, which probably still showed Ms. Miers' appearance shortly when the case was filed in 1998, or perhaps on either Westlaw/West Publishing's or Lexis/Nexis' reliance on that same out-of-date source. Such a docket sheet is much more likely the source of the listing of counsel in that opinion than any late-filed motions or briefing, so I don't think it's safe to infer, as you do, that her former firm was continuing to include her name on pleadings after she'd left it. But if you're relying on something other than the listing in the opinion — if, for example, you've obtained through PACER or otherwise a photocopy of some motion actually filed in the case — please let me know. It would reflect poorly on the firm if it did that, and on Ms. Miers if she knowingly allowed it.

Finally, with apologies for taking up so much of your bandwidth: The rules say that all certiorari petitions are reviewed, but the conventional wisdom is that not all are reviewed as thoroughly; some get detailed review, some cursory. Appointed counsel or no, Ms. Miers' certiorari petition in the Ware case was unlikely to get a close look, and there was nothing she could do about that. Professor Levinson's cert petition in Jones v. Bush, however, coming days after the Supreme Court's decision in Bush v. Gore, almost certainly did get a very close look. The precedential effect is precisely the same, but anyone who thinks the situations were otherwise comparable is, I would suggest, naive. You're certainly right that securing a denial of certiorari may be less indicative of lawyering brilliance before the Supreme Court than a ruling for one's client on the merits. If merits are all that matters, one ought not be be able to draw any inferences at all about the quality of counsel from results, but no one seriously believes that.

My young associate who argued in the Supreme Court pro bono case I mentioned above was utterly demoralized when a few weeks after his argument, the Court dismissed the writ of certiorari on grounds that it had been improvidently granted. Since he'd won in the Fifth Circuit and the State of Texas had made the writ application, I comforted him by pointing out that the proper characterization of what had happened was that he had so thoroughly whipped the State that he'd persuaded whoever the four Justices were that had voted to grant cert that they'd been mistaken, and that that was a bigger win than getting a mere affirmance of the Fifth Circuit's ruling. But he still grumbled.

My thanks, again, for your link, and my best wishes for your legal education and, of course, your continued blogging.

Posted by: Beldar at October 9, 2005 02:54 AM
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