President Bush praises Harriet Miers as an opponent of legislating from the judicial bench, but as a corporate lawyer she lobbied then-Gov. Bush to let the Texas high court rather than the Legislature decide if attorney fees should be limited.
In the process, Miers unleashed a verbal assault on trial lawyers who typically file lawsuits and whose cases sometimes land in the U.S. Supreme Court, where Bush now has nominated her to serve. She suggested they were “greedy” and had “brought shame” on Texas.
As a corporate attorney in 1995, Miers stepped into a battle between trial lawyers and proponents of limiting lawsuits. She pressed the future president to veto legislation that would have blocked the Texas Supreme Court from limiting attorney fees.
Reminding Bush that Republicans had just gained a majority on the state’s high court, Miers called the legislation a “self-protective” special-interest proposal and an assault on the court’s ability to oversee the legal profession, according to a letter obtained by The Associated Press from Bush’s Texas archives.
If the bill became law, “once again Texas would be required to hang its head in shame for circumstances driven by a handful of greedy, but immensely rich and powerful lawyers,” Miers wrote under the letterhead of Texas law firm Locke Liddell & Sapp, which represented several major companies.
‘An assault’ on the Supreme Court
“This proposed law does violence to the balance of power between the legislative and judicial branch of our state’s government and constitutes an assault upon the powers of the Supreme Court,” Miers wrote Bush. “As a leader of the legal profession in this state, I am offended by such an assault.”
A conservative activist said the Senate Judiciary Committee should question Miers about the letter during confirmation hearings.
“If there is a bias toward judicial supremacy, it’s best that we know this now, in advance of a confirmation vote,” said Mark Levin, president of the conservative law firm Landmark Legal Foundation and author of a book on judicial activism.
“There’s absolutely no reason why the state legislature can’t regulate attorneys’ fees,” Levin said. “For one, judges are lawyers too. And surely the notion cannot be that the branch that’s most responsive to the public shouldn’t take the lead in a matter like this.”
Miers told Bush in her June 11, 1995, letter that she was speaking only in her capacity as a former president of the State Bar of Texas. Bush had recently appointed her to the Texas Lottery Commission.
Legislating from the bench
Miers’ correspondence emerges as some senators, including conservatives, question her selection to the nation’s high court.
In introducing her as his nominee, Bush said this week, “She will not legislate from the bench.” Miers echoed his comments, saying she had a duty to “help ensure that the courts meet their obligations to strictly apply the laws and the Constitution.”
Bush, who made limits on lawsuits a priority as Texas governor, vetoed the legislation as Miers wanted. The bill was sponsored by a Democrat and supported by the Texas Trial Lawyers Association.
It would have barred the court, which has disciplinary power over Texas lawyers, from adopting rules that interfered with an attorney’s ability “to contract in the free market to provide legal services for a fee” or that discouraged competition “among attorneys to provide legal services at reasonable fees.”
No caps on attorney fees
Though Bush blocked the legislation, the court hasn’t capped attorney fees.
Had the court done so, it would have been “absolutely legislating from the bench,” said Dallas trial lawyer Fred Baron, who opposed long-running efforts in Texas to cap attorney fees.
While limits on fees would affect a range of law firms, they would hit personal-injury lawyers particularly hard, Baron said. Such lawyers typically do not get paid by clients unless they win, often taking a share of the damages. That arrangement has made some trial lawyers rich. It also has allowed people to hire lawyers when they couldn’t afford it.
“The evil was not the fact that the plaintiffs’ lawyers were making money. The evil was that the companies were being sued by victims, and they wanted to stop that, as they continuously do,” Baron said.
Corporate law firms not affected
Such fee limits would be unlikely to affect corporate law firms, which typically charge clients by the hour.
White House spokeswoman Dana Perino said Miers’ position in the letter didn’t amount to using the courts to make law.
“Judges are not legislating from the bench when they are doing what the Legislature has given them the authority to do,” Perino said. “Legislating from the bench means supplanting the will of the Legislature or the meaning of the Constitution with a judge’s own personal policy predilection.”
Bill Whitehurst, who has served as president of the State Bar of Texas and the Texas Trial Lawyers Association, said Miers’ letter can be read in part as a swipe at trial lawyers who were thought to be behind the legislation, but also as an effort to preserve the way the state handled lawyer discipline.
“Harriet is a supporter of President Bush’s tort reform agenda, and I don’t think she’s made any bones about that. But at the same time I believe she’s a lawyer’s lawyer and believes strongly in how we run our bar in Texas and that lawyers should discipline themselves,” Whitehurst said.
In her letter to Bush, Miers warned that those who allowed the legislation to become law would be “smeared with legitimate criticism for a blatant attempt to shield, protect and curry favor with interests that have brought shame on this state, badly hurt our economic development efforts directed at creating jobs and continue to this day to cause our state to be held in disrepute for ‘justice for sale.”’