In the mid-1990s, lawyer Harriet Miers was representing a Dallas businessman who had lost a $5 million deposit on a Texas skyscraper. The businessman had sued, but his case was thrown out of federal court because he had failed to show up for some depositions and been unruly at others. Miers appealed the case. Her argument: A case should be decided not on procedure but on its merits. She won.
Now President Bush's nominee to the Supreme Court, Miers has not amassed a long public record on her own legal philosophy. But one strong theme emerges from her three-decade-long career as a private lawyer: a practical approach to the law with a commitment that everyone has a right to legal representation.
"Harriet was not so taken with her client," recalled Dallas lawyer Lewis LeClair, who represented the other side in the skyscraper case, "but she was interested in the policy question: Should a case be decided on procedural grounds or on its merits? I was an advocate for my client, but as a matter of policy, I don't disagree."
Miers, 60, spent virtually her entire professional career as a practicing lawyer in Dallas, ended up managing one of Texas's largest law firms and counted then-Gov. George W. Bush among her clients. Unlike some court nominees who have served on federal appeals courts or in high-ranking public office, Miers has left little in the public record that illustrates her approach to the law and how she might decide cases as a justice.
She worked briefly on the Dallas City Council, directed the Texas Lottery Commission and has served in the White House, most recently as the president's counsel. But the majority of her working life has been spent litigating corporate legal disputes for private clients, haggling more frequently over conference tables with attorneys for her opponents than in courtrooms. Her cases usually were settled before going to trial.
Miers's limited published writings indicate she is a lawyer interested in the nuts-and-bolts aspects of America's legal system. She has focused on the business of lawyering, writing about how to manage a law firm and the benefits of continuing legal education. As a member of the American Bar Association, Miers wrote two short articles on one subject: the practical question of how lawyers who are certified to work in one state should approach work in another.
Her one foray into the controversial social subjects that can animate the high court was her work as a member of the ABA to get the organization to withdraw its official support for abortion rights. Her colleagues said that stemmed from her belief that the national association of lawyers should not take a stance on abortion and other issues that are matters of personal conscience.
Miers's firm, Locke Liddell & Sapp, is one of Texas's premier law firms. Although it has been tarnished by two cases of its clients bilking investors -- the firm paid $22 million to settle one lawsuit in 2000 and $8.5 million to settle another a year later -- Miers was not implicated. Her critics have said the cases raise questions about her management abilities.
"They say, 'She was managing partner -- she should have known,' but that's almost an impossibility," said Karin Torgerson, a partner at Locke Liddell who also worked under Miers when she was staff secretary at the White House. "Once the management committee became aware of the situation, she worked hard and fast to resolve it."
Locke Liddell has had a roster of high-profile clients besides Bush, including Walt Disney Co. and Microsoft Corp.
Miers handled a major case for Microsoft, defending the software giant against a potential class-action suit from as many as 11 million customers in the mid-1990s. In that case, her colleagues said, she again homed in on the merits of the dispute and did not focus on procedure.
"She appeared to have an innate sense of fairness," recalled lawyer Sam Baxter, who lost the Microsoft case to Miers. "She was not doctrinaire." Baxter recalled that in litigation with time-sensitive documents and deadlines, some lawyers would view requests for extensions as "if you might have asked for their firstborn." Miers did not practice law like this, he said.
"For her, procedure was an orderly way to get to a result," he said. "She was not a 'gotcha' lawyer. She certainly represented her client. The argument was heated and sharp. She certainly never gave an inch on that. But it was a merits-based issue."
Legal scholars caution that Miers's work as a lawyer cannot really give a clear indication of what she would do as a judge.
"The thing that makes lawyering very, very strange is that lawyers don't have to believe their arguments," said Sanford Levinson, a law professor at the University of Texas. "All they have to believe is that the argument is professionally acceptable. No other profession has such a casual regard toward its arguments."
Levinson was one of several lawyers who faced off against Miers in a suit in 2000 after the disputed presidential election.
Three Texas voters sued Bush, alleging that both he and Richard B. Cheney were from Texas and therefore Texas's electoral college delegates could not vote for both of them. The case hinged on an obscure section of the 12th Amendment, which has never been invoked.
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.
Miers's pro bono work reveals a woman dedicated to fighting for legal representation for everyone. "We can and should play an important role in addressing the complex issues of delivery of services of all description to the poor," she wrote in a 1992 editorial in the Texas Bar Journal, while she was president of the State Bar of Texas.
She was one of the main backers of an initiative to establish legal clinics in poor neighborhoods in Dallas, and she spent many hours volunteering for Legal Aid of North Texas, where Democrats outnumbered Republicans by a healthy majority. In her first visit before a federal appeals judge in 1981, she represented a 32-year-old nurse's aide who argued that she was disabled and deserved Social Security payments. Miers lost. In another case, she represented the grandmother of a 3-year-old boy who was suing the boy's mother for child support. The court issued an arrest warrant for the mother.
The only case that appeared in an extensive search of court records showing pro bono work for a cause closer to conservative hearts was a 1993 case in which she defended a religious group against a suit from a donor. The donor said he had given about $100,000 to Pioneer Bible Translators, which translates Bibles and sends them overseas. Then he discovered that his wife had been molested by a charity official. Miers, who sat on the board of the charity, won, and the charity kept the donation. The only other time Miers, a born-again Christian, appears to have wrangled with religion in the courtroom was when she defended an insurer for the Catholic Church as it sought to limit its portion of a judgment won by abuse victims of a Dallas area priest.
Lawyers in Texas describe Miers as someone who prepared intensely for her cases and fought hard. They noted that her don't-suffer-fools-gladly style often played better in front of a judge than in front of a jury. Cross-examination was not her strong suit, they said, but her legal briefs were flawlessly prepared.
Mike Miller, a lawyer from East Texas, described the feeling when he learned Miers had entered his case -- a class-action suit of car buyers against Texas automobile dealers. Miers was representing the dealers.
"It was mixed," he said. "It's like seeing your mother-in-law drive off a cliff in your brand-new Mercedes. There are advantages. You don't have to worry about someone lying to you. You are not going to fight over anything that's a waste of time. The issues won't be frivolous. But you know you're in for a fight."