While the shortage of information about Harriet Miers makes determining her degree of conservatism difficult, possibly she has more liberal views on race and voting than Chief Justice Roberts does, based on one case in which she was neither a party nor an attorney*. It has been reported in several mainstream media outlets but drawn relatively little attention from bloggers. From the Dallas Observer:
Mike Daniel is one of a tiny coterie of tough activist lawyers who in the 1970s and '80s pushed through a series of federal anti-segregation, anti-housing discrimination, anti-disenfranchisement lawsuits that changed the city forever. Of that barrage of litigation, the piece that struck the deepest blow was a suit seeking the overthrow of the old city council system.
Daniel represented plaintiffs Marvin Crenshaw and Roy Williams, who argued that Dallas had used a series of tricky arrangements to prevent black people and Latinos from achieving power on the city council. When their lawsuit was coming to a head in 1991, Harriet Miers was nearing the end of her single two-year term as an at-large city council member.
Daniel and Roy Williams, his former client, remember Miers as a smart and thoughtful council member who eventually came to support a version of the all single-member-district "14-1" council system they were seeking.
"She's really not an ideologue," Daniel says. "She came over to 14-1 way sooner than the mayor."
The mayor at the time was Annette Strauss, nominally a Dallas liberal, sister-in-law to Robert ("Mr. Democrat") Strauss, who was a former chairman of the Democratic National Committee. Both Daniel and Williams remember Miers as far more interested in fair representation issues than Strauss or any of the other big Democrats still in town in those days.
The case, Williams v. City of Dallas (734 F.Supp. 1317, N.D.Tex., 1990), was a suit charging violations of Section 2 of the Voting Rights Act, stemming from the Dallas system in which the city was divided into eight districts that each elected a city councilmember, and then three at-large councilmembers were elected by the whole city. This was problematic for two reasons: African Americans and Latinos had difficult raising the hundreds of thousands of dollars necessary for an effective citywide campagin, which resulted in no African American or Latino person (except in a single rare instance) being elected at-large; and because the district lines had been drawn to pack African Americans into two districts in which they were 75+% of the population, with the remaining African American population split between two districts in which they could not make up a significant voting bloc. In other words, the system was the worst of both majority-minority districts and vote dilution. There also was an "Citizen's Charter Association ("CCA")," which controlled City Council elections as an all-white, "non-partisan slating group."
Judge Buchmeyer's opinion in the case is lengthy but occasionally entertaining; he writes the kind of footnotes to which I fear I would succumb if I were a judge. "Accordingly, the Findings of Fact in this opinion are exhaustive. [FN3] Because of their length, this Memorandum Opinion--for convenience [FN4]-- will begin with a brief discussion of the applicable law..."
"FN3. And exhausting.
"FN4. See footnote 3."
At the time, Miers was an at-large city councilmember, and she testified in the case.
Harriet Miers (Place 9, at-large) testified that the 8-3 system was unfair because the number of single-member districts needed to be increased so there would be additional black and Hispanic representation on the Council [...] Miers, TR. V (4-6). Again, the City's position that -- in these statements by Miers, she did not actually use the words "the 8-3 system was unfair" -- is disingenious, to say the least.While the problem of ensuring racial minorities' voting power is extremely complicated (and thus this post is titled somewhat facetiously), I contrast this with John Roberts because Sen. Russ Feingold questioned him during his confirmation hearings about Section 2 of the Voting Rights Act and the Reagan Administration memos Roberts wrote that advocated limiting its reach.
Harriet Miers testified she spent about $ 200,000 in 1989. For example, Harriet Miers testified that she would not be surprised to find that most of her contributions in the 1989 Place 9 race came from either North Dallas or "interests that are located or reside in North Dallas." [...] Harriet Miers testified that "in touring around during the campaign it was my impression that there were circumstances in the southern sector [of Dallas] that didn't appear to exist in the northern sector and it was troublesome to me."
* Texas attorney Beldar makes a case for Miers's being a successful litigator, though here again shortage of information is a problem. In the absence of publicly-available detailed documentation of how cases went, he resorts to remarks like:
"Ms. Miers apparently persuaded that court"
"meaning, in all probability, that she filed a persuasive brief"
"although I don't know what ultimately happened after this appellate opinion against Microsoft was issued, my guess is that the case settled"
Also, viewing denials of cert as proof of Miers's ability when they were to her client's advantage (Jones v. Bush, a Twelfth Amendment challenge to Cheney's claim of Wyoming residency for the 2000 election, which was quickly dismissed, though without prejudice, by the lower courts for plaintiff's lack of standing), and as proof of the Supreme Court's short docket when they weren't (pro bono cases Ware v. Schweiker and Popeko v. United States) is superficially inconsistent.
Even when Beldar notes something I'd consider unquestionably positive -- Ms. Miers's pro bono work (which included time as a boardmember of the Legal Services Network of North Texas) -- he undercuts it slightly with his construals of the record: "'Now ably represented by volunteer private counsel, obtained through a community legal aid service...' [...] Judge Rubin still went out of his way to compliment Ms. Miers." [his emphasis]
What is left out of Beldar's ellipsis is "... an applicant for Social Security Disability Benefits and for Social Security Supplemental Income seeks reversal of the Secretary's decision, made after a hearing at which she was not represented, denying her those benefits." [my emphasis] Again, kudos to Ms. Miers for staying in the public interest trenches, which many bigfirm lawyers abandon after doing the necessary for law school graduation, but I don't think I'd consider Judge Rubin's statement to be a great compliment so much as it is an acknowledgment that people are generally better off in the byzantine administrative law world when they have representation of counsel, the majority opinion in Walters v. Nat. Assn. of Radiation Survivors (via 3YoH) notwithstanding. This reading of the phrase is further supported by the judge's statement,
The administrative process is often, and frequently properly, criticized because it moves too slowly. Now that Mrs. Ware has counsel, the objection is made that "at certain junctures" the system moved too quickly for her, that it was too complex for her to understand, and that she was overwhelmed by its difficulty. Counsel also contends that Mrs. Ware was prejudiced by her earlier lack of counsel. [...]Nor can I agree with Beldar's assessment of Miers's role in Popeko v. United States: "Interesting how these federal judges seem to be turning to her when they have an unusual or exceptional case that needs really creative lawyering, even if it's not going to produce a fee."
While hearings before the ALJ are not adversary in nature, a lawyer or other counsel may be of great service to claimants in administrative proceedings. See Goldberg v. Kelly. Mrs. Ware was plainly and unequivocally told that she had a right to be represented by "an attorney or any other qualified person." She elected to proceed without representation. Although the Social Security Act gives applicants a right to representation, counsel is not thrust upon claimants. The Secretary is not provided with funds to retain counsel and there is available neither a public prosecutor of claims nor an independent ombudsman to assist claimants. Absence of counsel does not of itself impugn the hearing. If, however, Mrs. Ware can prove unfairness at the hearing or clear prejudice as a result of the absence of counsel, she is entitled to remand.
We find no evidence of either unfairness or prejudice here. Counsel, we are told, might have called Dr. Chambers. Other than Mrs. Ware's written statement, however, there is no support for the thesis that this might have been helpful. Therefore, the absence of counsel at the hearing in August 1978 cannot be considered prejudicial.
Mrs. Ware contends, in the alternative to the arguments previously considered, that the ALJ failed in his duty to develop fully all relevant facts and that this was exacerbated by her lack of counsel.
As we have already pointed out, administrative hearings under the Social Security Act are not adversary proceedings. The hearing examiner has the duty, accentuated in the absence of counsel, to develop the facts fully and fairly and to probe conscientiously for all of the relevant information. It is his obligation to develop a full and fair record. Courts of appeals have found good cause to remand cases in which the ALJ has failed diligently to explore all relevant facts, especially where the claimant was uneducated and appeared without representation, if an adequate showing is made that the absence of counsel prejudiced the claimant.
Here we find no violation of the ALJ's duties. The first charge of dereliction does not relate to incompleteness of the record, but to the ALJ's failure to warn Mrs. Ware that she bore the burden of proof and to instruct her on the value of representation. That such advice would have been appropriate we agree. Absent a showing of prejudice resulting from failure to give it, a remand is not required.
I quite likely am misreading it due to undereducation in criminal law, but when the judge's opinion says, "In the instant case Popeko reasserts the identical argument which he made in the Rule 35 proceeding," that doesn't sound particularly creative. Whereas if the judge said, "Popeko now asserts a new theory of procedural due process," I would have been impressed.
Beldar says in the comments to the post that Texas firms generally are not as promiscuous as East Coast firms about putting partners' names on work in which they haven't directly participated. However, Miers is listed as counsel to Microsoft in Shaw v. Broadcast.com, Inc. (2005), despite not having been involved in the case since 2000 at the latest (as she began working for the White House in January 2001).