For those trying to make sense of President Bush’s decision to nominate Harriet Miers to the Supreme Court, here’s a question: What do Miers and John Roberts have in common, besides the fact that they were both nominated to the Supreme Court?
Answer: Both had substantial careers as corporate lawyers before being nominated.
Roberts spent 13 years a partner at Hogan & Hartson LLP, where he argued before the Supreme Court on behalf of such corporate clients as Digital Equipment Corp., Peabody Coal Co. and Toyota Motor Corp., Chrysler Corp., Litton Systems, WellPoint Health Networks, Fox and NBC, among others. He also served as a registered lobbyist for the Cosmetic, Toiletry and Fragrance Association before the Food and Drug Administration on commercial speech issues.
Miers, meanwhile “has a blue-chip résumé that would wow Wall Street,” as Business Week correspondent Lorraine Woellert put it in Sunday’s Washington Post . Miers was a managing partner of the Dallas law firm Locke Liddell & Sapp, where she handled consumer class-action lawsuits for Microsoft Corp., the Texas Automobile Dealers Association, and former mortgage industry giant Lomas & Nettleton. She has also defended Dupont, Disney and Miramax, among others. Additionally, Miers has served as a board member of Dallas' Better Business Bureau and the Greater Dallas Chamber of Commerce.
Such legal service to large corporations is not typically part of the resume of a Supreme Court Justice. As Bruce Josten, the U.S. Chamber of Commerce’s top lobbyist, told the Christian Science Monitor , “Having two justices, [Chief Justice John] Roberts and Miers, who we expect to join him shortly, that's adding two to nothing from the point of view of that kind of experience. That's big for the business community.”
In fact, you would have to go back to 1971, when President Nixon nominated corporate lawyer Lewis F. Powell Jr. to the Supreme Court, to find a justice who came to the court with that much experience in corporate law. Powell, of course, went on to become one of the most pro-corporate justices in modern Supreme Court history, helping to expand the legal rights of “free enterprise," especially when it came to commercial speech.
Unfortunately, this angle has been largely lost in the public debate over Miers. Instead, the media has focused on the infighting among conservatives about her credentials.
Indeed, it is newsworthy that many of the president’s hard-core social conservative supporters say they feel betrayed. They want to know: Where is the strict constructionist they were promised, the justice who would heroically restore America back to a shining theocracy on a hill, safe from the liberal scourges of pornography, homosexuality and abortion? Meanwhile, a small but influential group of conservative intellectuals has loudly complained that Miers is completely unqualified for a different reason—she has zero (Zero!) experience as a judge or as a constitutional scholar. As conservative pundit George F. Will wrote scathingly in a recent column, “If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers' name probably would not have appeared in any of the 10,000 places on those lists.”
Yet, one lesson we should have learned from the Bush presidency by now is that while social and intellectual conservatives are nice to have on your side, it is the large corporations that write the checks. And if you can throw a bone to those other groups now and then (like, say, coming out for a gay marriage amendment that has no chance of passage, or giving elegant speeches about your Christian faith), you can keep them in line.
But if you look closely at Bush’s record, you’ll see plenty of words about family values and religion and the virtues of small government, but plenty of actions on behalf of things like tort reform and bankruptcy reform.
Hence, John Roberts and now Harriet Miers. “Together, they could be a CEO's dream team,” writes Business Week’s Woellert.
But here’s the real problem. While obviously important issues like affirmative action and abortion and the religion evoke all kinds of emotions and hence good copy, the Supreme Court also tackles a lot of mundane, technical stuff, including many business-relevant cases. And with Roberts and Miers on board, the court will be likely to tackle even more business-related cases. As Pat Cleary, the National Association of Manufacturers’ senior vice president wrote on the NAM’s website, “the reason we're in this fray at all is because a S Ct Justice will spend far more of their time on issues of interest to manufacturers than they will on the social issues that seem to dominate the debate.”
This fall, for example, Supreme Court has several cases on its docket that could have a big impact on business. In Texaco and Shell Oil v. Dagher, the court will determine whether a Texaco-Shell joint venture violated anti-trust price-fixing rules, a case that could have far-reaching impacts on the nature of joint ventures and the rules about price-fixing. In Volvo Trucks North America v. Reeder-Simco GMC, the court will determine whether companies that provide preferential discounts to some dealers are engaging in price discrimination against others, which could open the floodgates to lawsuits under the Robinson-Patman Act. In Illinois Tool Works Inc. v. Independent Ink Inc., the court will determine whether a company that forces customers to by a certain type of printer ink in its patented ink-jet printer is violating the Sherman Act, another case with broad impacts.
If your eyes glazed over the preceding paragraph, you are probably not alone. Few people without a direct stake in these type of cases pay attention to them, which is probably why the business angle in both Roberts’ and Miers’ nominations has been largely relegated to the background. Yet, over the last three decades, one of the most important but least-remarked upon changes in American jurisprudence has been the steady expansion in the presupposition that the rights of free enterprise should only be curtailed in extraordinary circumstances—as compared to, say, the importance of truth in advertising or the value of protecting endangered species, or other considerations that have the annoying habit of getting in the way of “business civil rights.”
By nominating not one, but now two Supreme Court justices with formative experiences defending the rights of large corporations to be free of pesky regulations and bothersome responsibilities to workers and consumers, Bush has demonstrated where his true loyalties lie. Unfortunately for the American people, it is, once again, not with them.
Lee Drutman is the co-author of The People’s Business: Controlling Corporations and Restoring Democracy.
© 2005 TomPaine.com