Vic, what of the notion that Miers just looked at the tax code with a view toward doing what her clients were asking her to do?

That is to say, she was being paid to do something. That really is no indicator (in my view) of her personal opinion on how statutes should be read.

Hi Elizabeth. I guess it depends one's view of whether lawyers have an ethical obligation to act as more than hired guns. In the Rainbo Club case, she was a litigator, so maybe being a hired gun was the right move. But as co-managing partner in the CDS tax shelters, her failure to protect the reputation of her firm and its clients is less defensible, even if her clients paid her to do so. Worse yet, it looks like E&Y was fooling Miers' clients into thinking their tax position was stronger than it was, and Miers' firm let it happen.

To be clear, there's nothing here to suggest that Miers herself read the tax Code. But her acuqiescence to the firm's involvement in tax shelters suggests, to me, a likelihood that she sees nothing wrong with literal interpretations of the Code, notwithstanding the absurd results that may follow.

Without expressing any opinion on the merits of the Miers nomination, I'm not sure I follow your logic here on any of the three points:

(1) I don't think it likely that the tax shelter issue would ever come to the attention of the vast majority of big-firm managing partners. Head of the tax team, maybe, but law firms are not as rigidly hierarchical as other organizations, and I can't imagine this issue filtering up of its own accord, nor can I imagine imposing a duty upon a managing partner to investigate the advice her firm is giving on a regular basis. The facts may prove me wrong, but my gut tells me we can't learn anything about Miers from the tax shelter deal.

(2) Context matters, and is sometimes determinative. I cannot extract from her decision to recommend fighting on Rainbo any generalized "pit bull" tendencies -- lawyers' advice to clients often runs counter to their nature, and has bumpkus to do with how they would act in different political circumstances.

(3)You seem to make a bit of a leap in your third point, moving from your conclusion that Miers knew or should have known about her firm's shaky tax shelter advice o a suggestion that her (imputed?) knowledge of those shelters implies a literalist approach to statutory interpretation. Even if Miers DID know everything about the shelters, there's an awful lot of supposition between that knowledge and any conclusion regarding how she would interpret statutes on the Court.

Your thoughts?

Reader,

1. I'd be sort of surprised if the managing partner didn't know about the deal --- apparently they did it 70 times at $50,000 a pop. Once it came to her attention, she'd at least have to ask what the deal was about, and whether the firm was confident in its opinion.

2. Bush himself has called her a pit bull. If there's evidence of non-pit bull tendencies, I'd be interested in hearing about it.

3. Yes, the third point is a bit of a leap. It's based on an inference that the sorts of folks who act like pit bulls, aren't bothered by tax shelters, etc. are also the sorts of folks that are likely to prefer literal readings of the Code. It's certainly possible for someone to be pro tax shelter in one capacity but anti-literalist as a justice. But it's somewhat unlikely, I think.

My anecdotal experience is that law firms have varying policies about giving legal opinions. At some firms, policies vary from partner to partner, with some being willing to give opinions without much back-up and some not willing to give other opinions under any circumstances. At Skadden, all legal opinions had to go through an opinion committee, and some attorneys' only function was to review opinions. The firm had written policies about what opinions could be given under certain circumstances. If a firm has a system like that, then 70 opinions could never be given on the same structure without the firm having a policy on it. However, in firms that are litigation-driven, like Locke Lidell, I bet legal opinions are not vetted by the administration. If true, I don't think that turns a negative story into a positive story -- it just speaks more to management style than statutory interpretation.

Back to Elizabeth's point, though, I would prefer that a SCOTUS nominee be able to look objectively at some situations through a policy lens, and not a zealous advocate lens. Why don't we nominate the V&E lawyers that gave the opinions on the Enron SPE's?

Christine: re your reply to Elizabeth -- the fact that someone was a zealous advocate in her role as a litigator does not indicate that she can't be objective as a judge. Your dichotomy would have disqualified most litigators (and perhaps most lawyers in general) from judgeships...

On the second point, while the other defendants paid hush money to dispose of what proved to be a meritless claim, Miers ably had it dismissed. And this is somehow supposed to count against her? Huh? So, we're supposed to be more impressed if she told the client (incorrectly) that the claim couldn't be defended or if she told the client he should pay hush money on a meritless claim that could be disposed of legally? Come on. Counting this against Miers is beyond baffling; it's perverse.

(By the way, imagine the spin if she advised Bush to pay the hush money on a claim that we now know she could have defeated on the merits. She's be tarred as the bagwoman who helped George bury some terrible act he'd committed.)

On the first claim, it's fair ground for inquiry but your post makes all sorts of unwarranted assumptions about Miers's role. Most firms have opinion committees, whose job it is to vet opinions. Quite often, those processes are insisted upon, or reviewed by, the insurers. Unless Miers was herself a tax specialist, there's no way it was her job to substantively vet those opinions. Moreover, if she wasn't a tax specialist, having her substantively vet the opinions would reflect badly on her and the firm. As I say, there are grounds to ask what the firm's oversight of the opinion writing process was, and what her role was, but let's not go piling questionable assumption on questionable assumption.

The third point is puzzling, because you reference the tax code issue as an example of literalism that you'd oppose. But are you saying that Miers did the tax code analysis on those projects? There's no evidence of that, is there? Or are you saying that because some other lawyer at her firm read the code literally it's evidence of Miers's approach? That wouldn't be a fair inference. Or was your example of reading the tax code literally just a loose metaphor that we're supposed to apply to Miers even though we have no evidence whatsoever she ever read the tax code that way?

I do think that attorneys hide behind the "zealous advocacy" defense too often. As the managing partner of a law firm, you have some choice as to what direction your law firm will take, what clients your firm will represent, and so on. So, to say that your firm made a niche out of giving spurious legal opinions on a certain kind of tax structure offered by one accounting firm because you have made a commitment to zealous representation is a dubious defense.

Quite possibly, shifting from 35 years of private litigation to being an objective arbiter is a difficult transition. Perhaps the SCOTUS is not the place to make that transition.

Christine,

As to the litigation defense Miers headed for Bush, her defenders don't need to trot the "zealous representation" card, given that she had a meritless claim dismissed on the merits. There's no there there.

As for the tax opinions her firm was offering, I question whether the traditional notion of the zealous representation defense is even available. At least since the Kaye Scholar affair, we've known that litigation defense is not the proper model for administrative compliance practice, where we don't have two zealous advocates, cross examination, and a neutral fact finder. For example, for some time now the IRS has had regs, recently strengthened, making clear that the litigator's "no frivilous positions" standard doesn't suffice for tax practice. There's been lots of writing on this over the last decade or so. At the same time, I think we don't know what relation, if any, Miers had to that opinion writing at that firm.

(If it matters, I think Miers is a disappointing choice for SCOTUS.)

Christine: does it mean no experienced litigator should be allowed to become an Article 3 judge? Or only to become a SCOTUS judge? Was Roberts not qualified for that reason? Or you think a couple of years on a lower court really change one's proclivities to be a zealous advocate?

I frankly think Miers' candidacy is a joke. But comments about her thank-you notes, pre-law grades, and unwillingness to settle frivolous law suits are pretty hilarious too.