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.

A couple of follow-up questions, mainly directed at John Steele (if you're still reading)

1. Do we know that the Rainbo Club case was dismissed on the merits? My impression was that it was dismissed on the papers, which might have been jurisdictional or something. In other words, how sure are we that the claim was frivolous?

2. Would it be highly unusual for a managing partner to ask about an opinion if an opinion committee has already cleared it?

3. And a comment -- I'm not saying that Miers read the tax Code. I'm saying that she doesn't seem bothered by tax shelters, which suggests a high likelihood that she'll be a literalist on the court.

Vic,

I'm still here.

I didn't say the Rainbo claim was "frivolous"; I said it "proved to be meritless" and then referred to it as "meritless." That was based on the LA Times article saying that the complaint was "dismissed" and "disposed" of. The article doesn't specify the mechanism by which the dismissal occurred, but it does say that it took some time and that it was deftly handled. If she got it tossed on jurisdictional grounds it's no less impressive as lawyering.

And the larger point remains: there's no way a reasonable person can count that litigation success against her. Certainly we can't infer that she's incapable of judicial compromise simply because she won one litigation for a client who couldn't be seen as settling for hush money.

Let me give a counter example. Suppose a prof is asked to prepare a short introductory article for a conference on reform of class actions, and to include the pros and cons of the proposed reforms. She does so, ably. Years later, she's nominated to head an academic center charged with a particular reform movement on a different legal topic. Someone steps forward and says, "she can't handle that job. Several years ago she wrote a piece that even-handedly discussed pros and cons of some proposed reforms on a different issue. That conduct suggests she's incapable of peforming a task that takes advocacy." Would you find that argument convincing? I sure wouldn't. I'd find it baffling.

By parity of the reasoning in the original post, virtually all successful litigation results other than compromise would render one incapable of performing the job of judge. As I recall, Marshall and Ginsburg were quite successful advocates and took many cases "all the way" rather than compromise.

On the second point, as I've said, there are grounds for inquiry here. While I'm hesitant to speculate in public, the odds are good that firms of that size at that time had very different structures, and degrees of oversight, for opinion writing. In general, though, unless the particular opinion was in the practice area of the managing partner or had been brought to the managing partner's attention for some particular reason, I'd say the answer to your question is "yes, that would be unusual."

As for the third part, there are still some missing premises. You say she "doesn't seem bothered." Has she spoken out on these shelters? Has someone asked her about them? Did she do or say anything at all that would indicate that she's assessed the propriety of the literal nature of the opinions? You don't mention anything like that, and I haven't seen anything like that. So we can't take two hops across the canyon and start drawing conclusions about her view of literal readings of the tax code.

Unless she's a tax specialist, I would expect her to say something like, "hey, I'm not a tax specialist and can't competently comment on the opinions themselves." For that matter, I'd also expect her to say, "hey, I've never read the opinions. What do you think a managing partner does all day?" She might indeed be a literalist on the court, but I don't see anything in your post from which a reasonable person can infer that.

Another counter example. The law school Dean, charged with oversight, doesn't comment publicly against one of the professor's articles in favor of strict textualism. Can we infer the Dean therefore holds the same view? Not on those facts, we can't. Suppose the Dean spoke out in support of the reasoning in the article. Then we could. Same here with Miers. We have no basis to infer her support or disagreement based solely on the fact that one of her law partners wrote it.

But let's follow up with your reasoning and apply it more generally. Suppose we can find another partner from that firm who wrote an opinion letter based in substantial part on the spirit and policy of a particular law -- a virtual given in my opinion, with a firm of that size and the number of years we are going back for the Rainbo case. Would we be right to conclude that Miers will be a policy-wonk and penumbra-chaser on the court? If not, why not?

Hi John -- We've gotten a long way from the original point, which was "I don't have much to go on, but here's why I think Miers will be a textualist." Yes, I make a lot of leaps, and leaps upon leaps, but that doesn't mean I'm wrong. How 'bout we settle this with a friendly wager -- $20? If Miers gets confirmed and doesn't vote like Thomas on statutory cases, including tax, I'll pay up.

Vic,

That was only the third of your three conclusions (check out your bolded headings).

But I would have taken that bet, on your side, before your post. I just would never draw conclusions about her ability to compromise based on that one case (your 2nd conclusion) or draw conclusions about her literalism (3rd) and judgment (1st) based upon what some tax partner of hers did any more than I'd draw the opposite conclusions based on what some real estate partner of hers did.

FWIW, you and I apparently have common grounds on the issues of tax opinion products and the dangers of zealously self-interested literalism in that practice. And your questions shed some important light on the law firm management issue. There will be more and more managerial accountability in the future, I think.

As for the $20, since we're on the same side of that issue, we can buy each other a beer if you're ever out in the Bay Area.

best,

John Steele

seems to me the primary significance of the tax shelter matter is mostly the hypocrisy of the Bush Administration in bringing indictments against some purveyors of such opinions and giving Supreme Court nominations to others. Is anyone else offended by that cronyism and selective prosecution, and throwing of rights under the train?