Miers' stand on attorney fee caps questioned

updated 7:53 p.m. ET Oct. 7, 2005

WASHINGTON - President Bush praises Harriet Miers as an opponent of legislating from the judicial bench, but as a corporate lawyer she lobbied then-Gov. Bush to let the Texas high court rather than the Legislature decide if attorney fees should be limited.

In the process, Miers unleashed a verbal assault on trial lawyers who typically file lawsuits and whose cases sometimes land in the U.S. Supreme Court, where Bush now has nominated her to serve. She suggested they were “greedy” and had “brought shame” on Texas.

As a corporate attorney in 1995, Miers stepped into a battle between trial lawyers and proponents of limiting lawsuits. She pressed the future president to veto legislation that would have blocked the Texas Supreme Court from limiting attorney fees.

Reminding Bush that Republicans had just gained a majority on the state’s high court, Miers called the legislation a “self-protective” special-interest proposal and an assault on the court’s ability to oversee the legal profession, according to a letter obtained by The Associated Press from Bush’s Texas archives.

If the bill became law, “once again Texas would be required to hang its head in shame for circumstances driven by a handful of greedy, but immensely rich and powerful lawyers,” Miers wrote under the letterhead of Texas law firm Locke Liddell & Sapp, which represented several major companies.

‘An assault’ on the Supreme Court
“This proposed law does violence to the balance of power between the legislative and judicial branch of our state’s government and constitutes an assault upon the powers of the Supreme Court,” Miers wrote Bush. “As a leader of the legal profession in this state, I am offended by such an assault.”

A conservative activist said the Senate Judiciary Committee should question Miers about the letter during confirmation hearings.

“If there is a bias toward judicial supremacy, it’s best that we know this now, in advance of a confirmation vote,” said Mark Levin, president of the conservative law firm Landmark Legal Foundation and author of a book on judicial activism.

“There’s absolutely no reason why the state legislature can’t regulate attorneys’ fees,” Levin said. “For one, judges are lawyers too. And surely the notion cannot be that the branch that’s most responsive to the public shouldn’t take the lead in a matter like this.”

Miers told Bush in her June 11, 1995, letter that she was speaking only in her capacity as a former president of the State Bar of Texas. Bush had recently appointed her to the Texas Lottery Commission.

Legislating from the bench
Miers’ correspondence emerges as some senators, including conservatives, question her selection to the nation’s high court.

In introducing her as his nominee, Bush said this week, “She will not legislate from the bench.” Miers echoed his comments, saying she had a duty to “help ensure that the courts meet their obligations to strictly apply the laws and the Constitution.”

Bush, who made limits on lawsuits a priority as Texas governor, vetoed the legislation as Miers wanted. The bill was sponsored by a Democrat and supported by the Texas Trial Lawyers Association.

It would have barred the court, which has disciplinary power over Texas lawyers, from adopting rules that interfered with an attorney’s ability “to contract in the free market to provide legal services for a fee” or that discouraged competition “among attorneys to provide legal services at reasonable fees.”

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