- The Washington Times - Monday, October 17, 2005

Harriet Miers is ill-equipped to interpret the Constitution’s separation of powers, a chief task of the United States Supreme Court. She may be summoned against herself to prove the point.

On June 11, 1995, as a former president of the State Bar of Texas, Miss Miers cobbled together an alarmist letter urging then-Gov. George W. Bush to veto a free enterprise bill (H.B. 2987) enacted by the state legislature that allegedly trespassed on the powers of the Texas Supreme Court to regulate attorney’s fees. The bill declared: “The [Texas] supreme court may not adopt a rule that interferes with an attorney’s ability to contract in the free market to provide legal services for a fee.”

Since the end of the discredited Lochner era 70 years ago, the U.S. Supreme Court has recognized state legislative power over commercial affairs. Legislative bodies may embrace the wisdom of Adam Smith’s “Wealth of Nations” or the folly of wage-and-price controls without running afoul of the Constitution. In the field of workers’ compensation, state legislatures routinely cap on attorney’s fees. But lawmakers can remove the ceilings to encourage more or better attorneys to offer services.

Separation of powers is undisturbed by either policy. As James Madison explained in the Federalist Papers, it prohibits one branch from exercising dominant influence over the powers of another. Although H.B. 2987 might have been criticized as craven submission to trial lawyers, its free market standard for fees did not affront separation of powers.

Fatuously maintaining the opposite, Miss Miers bugled to Mr. Bush: “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 [Texas] Supreme Court at a time in its history when Justice Priscilla Owen’s election to the court placed a majority of the seats in Republican hands for the first time.” Miss Miers thus insinuated H.B. 2987 would have been less alarming if Democrats dominated the Texas Supreme Court, a cynical view of the law unworthy of a lawyer.

Miss Miers argued the bill usurped the Texas Supreme Court’s power over the legal profession, and attorney’s fees in particular: “By overwhelming majority, the lawyers of the State of Texas passed the Texas Rules of Disciplinary Procedure which recognize that ‘[t]he Supreme Court of Texas has the constitutional and statutory responsibility with the state for the lawyer discipline and disability system, and has inherent power to maintain appropriate standards of professional conduct.’ The Texas Disciplinary Rules of Professional Conduct, effective Jan. 1, 1990, … proscribe certain behavior with regard to the charging of fees for the protection of the public. For example, charging unconscionably high fees are prohibited and certain contingent arrangements must be in writing to be enforceable.” Miss Miers insisted H.B. 2987 thus wrongfully interfered with the judicial power to constrain the avarice of Texas trial lawyers by opting for free market rates.

But that insistence celebrates what separation of powers condemns. Miss Miers advocates a system of lawyer discipline in which the Texas Supreme Court issues, enforces, and interprets rules governing attorney’s fees, a staggering combination of powers assailed by James Madison as the essence of tyranny. Further, nothing in the Texas Constitution denies the legislature power over attorney discipline that complements or supercedes what the Supreme Court has ordained, for example, proof of wrongdoing beyond a reasonable doubt, a right to confront every accuser, or, as to H.B. 2987, a right to set fees at competitive levels. Indeed, the Supreme Court rule against “unconscionable” fees offends the fair warning requirement of due process as views differ wildly over the line between fair and excessive compensation.

Miss Miers concedes the frailty of her legal reasoning by enlisting polemics against Texas trial lawyers as a substitute. Without fee caps, she pontificates, “Texas would be grossly out of step with the lawyer discipline rules effective throughout the nation. … I once again will be required to explain to colleagues around the country how it is possible for such a ridiculous result to occur in my state. 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.” In other words, Miss Miers is eager to twist separation of powers because infuriated by trial lawyers.

Miss Miers is also sophomoric over politics and the legislative process. In her letter, she takes umbrage at groups petitioning legislatures to advance their interests, suggesting only altruists or saints enjoy a right to participate: “The passage of this proposed law squarely raises the issue of special interests laws for the benefit of those who have the wealth and power to cause to be passed self-protective legislation. … Those of us who are knowledgeable about the legal community know that this law is a special-interest bill to protect from legitimate scrutiny and regulation individuals in our state perceived to wield power and influence.”

Madison and Adam Smith would have been aghast. Both knew neither men nor women were angels and could not be made such by decree. The key to enlightened government and economic arrangements was to have ambition counteract ambition. Removing self-interest would destroy politics entirely.

Miss Miers’ opposition to H.B. 2987 is exemplary. As Lorraine Woellert reported in The Washington Post (Outlook, Oct. 16), Miss Miers was a director of the Committee for a Qualified Judiciary, a political action committee dedicated to electing judges inclined to protect industry from lawsuits. For a truncated period, she was retained by a pro-business organization to limit punitive damage awards and restrict medical malpractice claims. Miss Miers similarly promoted the special interests of business in opposing H.B. 2987 and seeking to preserve the power of pro-business judges to slash trial lawyer compensation and their incentive to sue.

By her reasoning, Miss Miers should be condemned for thwarting a law on behalf of wealthy and powerful businessmen who craved self-protective rules to avoid lawsuits by their hapless victims.

In sum, doesn’t Miss Miers lack the intellectual acuity indispensable to sound constitutional thinking?

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has published an “Advice & Consent Handbook” on Supreme Court appointments and the judicial filibuster.

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