October 09, 2005
Good News About Harriet Miers?
Posted by Gordon Smith

If you have been reading my prior posts, you will have observed that I am pretty down about the Harriet Miers nomination. This article in Business Week (sub. req'd) is intended to cheer me up:

[O]ne segment of American society is cheering: Big Business. Sensing that Miers might be a boon, the boardroom set is hoping her confirmation could herald a sea change on the high court. The addition of Roberts, who spent years as a corporate litigator, was heartening to them. The prospect of Miers, who has defended the likes of Microsoft Corp. and Walt Disney Co. and has been a leading advocate for tort reform, has many executives downright giddy.

No one knows how Miers might vote on key issues such as federal preemption of state law or caps on damage awards. What's important is that she and Roberts bring a one-two punch of practical business experience to the bench. That won't necessarily always mean a win for business. Rather, execs hope their real-world perspective will help them persuade the high court's other justices to hear more cases of interest to business. The expectation is that the duo will help reverse a trend set by the Rehnquist Court, which had little appetite for such cases. "The court takes less than 2% of the cases that come its way. Of that 2%, very few are business cases, so the ones that get accepted are critical," says Robin Conrad, a senior vice-president at the U.S. Chamber of Commerce. "That's where we think a John Roberts or a Harriet Miers could be most helpful."

Indeed, one of the defining characteristics of the Rehnquist Court was its lack of zeal for resolving conflicting appeals court opinions. These circuit court splits have dogged business for years as it has watched the high court repeatedly rebuff appeals to settle conflicts in such areas as federal preemption and antitrust. That benign neglect has allowed the nation's 10 circuit courts to effectively establish different rules of engagement for different parts of the country. "You end up in a situation in which whether you win or lose depends solely on where the case is brought," says Gregory Coleman, a partner at Weil, Gotshal & Manges LLP in Austin. "It creates this huge pressure for forum-shopping."

As a consumer of the Supreme Court's opinions on securities matters, my general inclination is to be thankful that the Court doesn't take more business matters. The Justices and their clerks often seem quite out of their depth on business issues.

Although I understand the desire to raise these other issues for the purpose of resolving Circuit splits, many candidates could fit this profile. Mike McConnell, for example, has extensive experience in regulated industries, and despite the fact that most of his writing is on law and religion, would do an admirable job on business issues.

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