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If Harriet Miers is Confirmed to the Supreme Court, How Is She Likely To Rule on the Tort Law Questions that Affect Both Big Business and Ordinary Citizens?

Monday, Oct. 17, 2005

It seems that Harriet Miers will have a chance to make her case before the Senate Judiciary Committee and the nation. The media has already explored how little we know about her opinions concerning the right to privacy and other hot-button issues. In this column, however, I will explore a topic that has received much less discussion: What can we expect from a Justice Miers when it comes to tort law issues?

Because most tort law is a matter of state law, the Supreme Court's views on tort law are often overshadowed by its view on other constitutional issues, such as abortion. But it is worth recalling that while the Court does not hear that many privacy or free speech cases per year, it does hear many cases that affect the way the tort system operates in the United States, especially in the context of corporate tort liability. And tort cases are crucial both to the individuals who bring them - who may be very severely injured - and to the corporations who defend against them - who may face multimillion (or even, now billion) dollar verdicts, and even bankruptcy, if they lose.

The issues that come before the Court, in the tort area, are important and complex. Recently, for instance, corporations have asked the Court to strike down what they argue are excessive state punitive damages awards under the Due Process Clause. They have also asked the Court to set aside state products liability verdicts on the ground that state law on this issue is "preempted" - that is, displaced - by relevant federal law. And this term, the Supreme Court will be asked to clarify the reach of federal racketeering laws in the context of a multibillion dollar suit against Big Tobacco.

How might Miers be inclined to rule in cases like these?

Why Might Miers's Business Litigation Background Be Significant?

Like Justice John Roberts, Harriet Miers comes to the court from what has been described as a "corporate" law firm background. Before she switched to government employment under her mentor George W. Bush, Miers spent almost all of her legal career at the same large Dallas firm, Locke Purnell Rain Harrell (later renamed Locke Liddell & Sapp, after a merger).

Miers was a litigator, although not the type who often ended up in front of a jury. Indeed, her expertise, like that of so many corporate litigators, was in making sure that her clients never saw a jury - either because the cases against them were dismissed on the law or on the facts, or because an acceptable settlement was reached.

Miers tackled the entire spectrum of commercial issues firsthand. She defended Texas car dealers against price-fixing charges. She challenged claims that Microsoft had sold defective software. She protected Walt Disney's trademarks. And she took on consumers who sued mortgage companies for violating debt collection laws. She also served on the corporate boards of a securities fund and a mortgage company.

Does this mean that we should assume that she would be hostile to the interests of plaintiffs, and would instinctively support Big Business in cases before the court?

I think it would be a mistake to draw too hasty a conclusion from Miers' personal practice history about her views of the tort system. After all, sometimes lawyers with the deepest experience of corporate litigation can become acute critics of the status quo after they reach the bench.

For example, look at the case of Benjamin Cardozo, a former corporate lawyer who famously set modern products liability law in motion with his opinion in MacPherson v. Buick Motor Co. which held that the duties a manufacturer had to a foreseeable user of its products extended far beyond the much narrower obligations created by contract.

Granted, Harrier Miers, if confirmed, might not turn into another Cardozo; for all the Justices who defy the expectations their backgrounds may raise, there are also some who confirm them. But it's worth pointing out that sometimes familiarity with a given area of law may breed not support, but contempt, for it.

Will Miers Feel the Same Way Her Mentor, President Bush, Does About Tort Reform?

And that point brings us to the area of tort reform. Obviously, President Bush is a major proponent of it. But would a Justice Miers feel the same?

The best way to understand Miers's rise to prominence is to understand Texas judicial politics in the 1990's. Harriet Miers was helped to power by two powerful Texans--Governor George W. Bush and State Supreme Court Justice Nathan Hecht. One thing that Bush and Hecht shared was a passion for "reforming" Texas tort law and a deep distrust for the plaintiffs' bar.

At first, Miers seemed like she might hold a contrary opinion - and be more pro-plaintiff. In 1993, when she was president of the Texas State Bar Association, Miers published an article in the Texas Bar Journal criticizing politicians--including Bush's father, President George H.W. Bush and his vice president, Dan Quayle--for lawyer-bashing.

But later, Miers worked on the side of tort reformers. Tort reform was a major theme in George W. Bush's gubernatorial campaign in 1994. And by 1995, Miers was hired by the Texas Civil Justice League to lobby for legislation to cap punitive damages awards and discourage medical malpractice claims - that is, the very kind of tort reform legislation that plaintiffs' lawyers decry. Although Miers soon gave up the lobbying contract, her recommendations were adopted by the recently-elected Gov. Bush and soon made into law.

Miers's tort reform roots go back to 1988 and her friendship with Hecht. In that year, she helped him win a seat on the Texas Supreme Court, and she has supported him in subsequent campaigns since then. The media has spent some time exploring Miers' and Hecht's' common interest in religion and their social life. But it is Hecht's zealous attachment to the tort reform movement that should concern Court-watchers.

Who is Justice Nathan Hecht? Along with Chief Justice Thomas R. Phillips, Justice Hecht has turned Texas tort law around almost 180 degrees, taking it from one of the most pro-plaintiff jurisdictions in the country, to one which is growing increasingly hostile to the rights of plaintiffs. Phil Hardberger, the Democratic mayor of San Antonio who was a Court of Appeals judge, wrote in 1999, in St. Mary's Law Journal, that "for almost a decade, the Phillips/Hecht Court has ignored, trivialized, or written around jury verdicts. In every area of the law, the Phillips/Hecht Court has overturned or limited potential recovery by injured individuals."

Harriet Miers was one of Hecht's most devoted supporters, closest friends, former colleague and religious comrade. According to the new rules developed during the Roberts hearings, the Senate is obliged to assume that Miers will approach each issue that would come before the Supreme Court with an open mind. But when it comes to tort reform issues, this evidence would seem to contradict any such assumption: Miers's long history as a fellow-traveler with the Texas tort-reform crowd does not suggest that she could keep a truly open mind on this issue.

That, in itself, is not a problem: Thurgood Marshall could hardly have been asked to keep an open mind on, say, whether segregation was unconstitutional. But if a Justice will arrive at the Court will well-settled views on a given area of law, that really will not be much open to question, the Senate deserves to know about that.

Miers's Tort Reform Work for the Bush Administration Should Be Made Public

Miers's history, then, might not be a reason to refuse her a spot on the court. But I do think it is a reason for the Senate Judiciary Committee to spend some time asking her opinion about her views on the kind of tort reform issues that are likely to arise before the Court: limits on punitive damages, rulings on federal law preemption of state law claims and regulations, and proposed federal legislation capping "pain and suffering" damages in state medical malpractice suits.

Furthermore, the Senate Judiciary Committee should have an opportunity to review anything that Miers has written that might illuminate her views on tort reform and the rights of plaintiffs. According to a recent article in Business Week, Miers was "intimately" involved in the Administration's efforts to frame legislation limiting jury awards and class actions. I think the Senate should have the right to review what advice she gave to the President on these issues. I don't think the results will be surprising - but they will be new, in the sense that they will give insight into Miers's recent thoughts on tort reform.

I realize that the Bush White House is gearing up to throw a broad blanket of executive privilege over anything Miers produced during her very short tenure in Washington, D.C. But it ought to reconsider that posture.

As my attempt to analyze her views about tort law and plaintiffs' right has shown, unless something more concrete is produced, all the Senate--and the public--will have on which to judge Harriet Miers will be speculation based on what we know of her supporters. The process of confirming a Supreme Court Justice should be based on more than that.

Anthony J. Sebok, a FindLaw columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site.

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