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Harriet Miers Responses to Senate
Judiciary Committee Questionnaire
UNITED STATES SENATE COMMITTEE ON THE JUDICIARY NOMINEE FOR THE
SUPREME COURT OF THE UNITED STATES GENERAL (PUBLIC)
1. Name: Full name (include any former names used).
Harriet Ellan Miers
2. Position: State the position for which you have been nominated.
Associate Justice of the Supreme Court of the United States
3. Address: List current office address. If state of residence
differs from your place of employment, please list the state where
you currently reside.
The White House Washington, D.C. 20502
I currently reside in Virginia, but also maintain a home in Texas.
4. Birthplace: State date and place of birth.
August 10, 1945 Dallas, Texas
5. Marital Status: (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and business
address(es). Please, also indicate the number of dependent children.
Single
6. Education: List in reverse chronological order, with most
recent first, each college, law school, and any other institutions
of higher education attended and indicate for each the dates of
attendance, whether a degree was received, and the date each degree
was received.
Southern Methodist University School of Law, 1967-1970, JD, May
24, 1970 Southern Methodist University, 1963-1967, BS in Mathematics,
May 21, 1967
7. Employment Record: List in reverse chronological order, listing
most recent first, all governmental agencies, business or professional
corporations, companies, firms, or other enterprises, partnerships,
institutions and organizations, non-profit or otherwise, with
which you have been affiliated as an officer, director, partner,
proprietor, elected official or employee since graduation from
college, whether or not you received payment for your services.
Include the name and address of the employer and job title or
job description, or the name and address of the institution or
organization and your title and responsibilities, where appropriate.
February 2005-Present: Counsel to the President, The White House,
Washington, D.C. 20502.
July 2003-February 2005: Deputy Chief of Staff for Policy, The
White House, Washington, D.C. 20502.
January 2001-June 2003: Staff Secretary, The White House, Washington,
D.C. 20502.
1972-2001: Managing Partner / Partner, Locke Liddell & Sapp,
LLP (previously President / Shareholder, Locke Purnell Rain Harrell
and previously Shareholder, Locke, Purnell, Boren, Laney &
Neely, 2200 Ross Avenue, Suite 2200, Dallas, TX 78701.
Spring 1984: Trial Advocacy Instructor, Southern Methodist University
School of Law, 3300 University Blvd., Carr Collins Building, Room
130, Dallas, TX 75205.
1970-1972: Law Clerk, U.S. District Court for the Northern District
of Texas, Judge Joe Estes, 1100 Commerce, Room 1452, Dallas, TX
75242.
May 1969-August 1969: Law Clerk, Belli Ashe Ellison Choulos &
Lieff, no longer exists, San Francisco, CA.
1964-1969: Computer Center Helper, Southern Methodist University,
Computer Center, 3300 University Blvd., Carr Collins Building,
Room 130, Dallas, TX 75205.
Sometime between 1963 - 1972: Computer Center Helper, Southwestern
Medical School, 5323 Harry Hines Blvd., Dallas, TX 75390.
Other Former Business Activities
1998 (approx)-Present: Harriet Miers P.C., 5115 Royal Crest Drive,
Dallas, TX 75229.
Mid-1980's: HM Investments, 5115 Royal Crest Drive, Dallas, TX
75229.
Mid-1980's: HEM Investments, 5115 Royal Crest Drive, Dallas,
TX 75229.
Late 1990s: Member, Board of Directors, Attorneys' Liability
Assurance Society, 311 South Wacker Drive, Suite 5700, Chicago,
IL 60606.
January 1993-1997: Member, Board of Directors, Capstead Mortgage
Corporation, One Lincoln Park, 8401 North Central Expressway,
Suite 800, Dallas, TX 75225.
Dates not available: Member, Board of Directors, Comerica Bank
(Texas Division), a financial services company, 1601 Elm Street,
Dallas, TX 75201.
Dates not available: Member, Board of Directors, Tyler Cabot
Mortgage Securities Fund. Contact information is not available.
Dates not available: Chair, Greater Dallas Chamber Local Governmental
Affairs Committee and Executive Committee, 700 North Pearl Street,
Suite 1200, Dallas, TX 75201.
Former Community Leadership
2000: Chair, Women's Leadership Council, United Way, 1800 North
Lamar, Dallas, TX 75202.
1998-2001: Member, Board of Directors, Dallas 2012 Committee.
Organization no longer exists.
1999: Vice-Chair, City of Dallas Ethics Review Task Force. Contact
information is not available.
1992-1994; 1997-1999: Member, Board of Directors, Dallas Citizens
Council, 901 Main Street, Suite 6212, Dallas, TX 75202-3753.
June 1989-March 2001: Executive Committee, Southern Methodist
University School of Law, 3300 University Boulevard, Carr Collins
Building, Room 130, Dallas, TX 75205.
1987: Chair, Advisory Committee, Girls, Inc. of Dallas, 2040
Empire Central Drive, Dallas, TX 75235.
1985-2001: Board of Trustees, Vice Chair, Executive Planning
Committee, Center for American and International Law (Southwestern
Legal Foundation) 5201 Democracy Drive, Plano, TX 75024.
1983-Present: Board of Consultants Member (1983-1987 Board of
Directors, 1987-1989 Associate Board Member, 1993-Present, Board
of Consultants Member), Pioneer Bible Translators, 7500 W. Camp
Wisdom Road, Dallas, TX 75236.
1974: Board Member, Dallas Legal Services, 1515 Main Street,
Dallas, TX 75201.
Dates not available: Board Member, Young Women's Christian Association,
1015 18th Street NW, Suite 1100, Washington, D.C., 20036.
Dates not available: Board Member, Child Care Dallas, 8585 N.
Stemmons Freeway, Suite 500 South, Dallas, TX 75247.
Dates not available: Board Member, Community Council of Greater
Dallas, 1349 Empire Central, Suite 400, Dallas, TX 75247.
Dates not available: Board Member, Goodwill Industries of Dallas,
3020 N. Westmoreland, Dallas, TX 75212.
Dates not available: Board Member, EXODUS Ministry, Inc., 4630
Munger Avenue, #110, Dallas, TX 75204.
Dates not available: Chair, Higher Education Task Force, Goals
for Dallas. Contact information is not available.
Dates not available: Board Member, Volunteer Center Resource
Clearinghouse. Contact information is not available.
Dates not available: Dallas Athletic Club, 4111 La Prada, Dallas,
TX 75228.
Former Government Leadership
May 1995-March 2000: Chair, Texas Lottery Commission, 611 E.
6th Street, Austin, TX 78701.
February 1993-November 1995: Chair (1994), Judicial Nomination
Committee, City of Dallas, 1500 Marilla Street, Dallas, TX 75201.
June 1989-November 1991: Member-at-Large, Dallas City Council,
1500 Marilla Street, Dallas, TX 75201.
October 1989-November 1991: Ad Hoc Public Housing Committee.
Contact information is not available.
June 1989-November 1991: Trustee, Dallas Police and Fire Pension
Board, 2301 North Akard Street, Suite 200, Dallas, TX 75201.
1989-1991: Director, North Texas Commission, 8445 Freeport Parkway,
Irving, TX 75063.
1989-1991: Chair, Railtran Advisory Committee. Contact information
is not available.
Dates unknown: Chair, Committee to Review City Budget Process,
Contact information is not available.
I have made my best efforts to include all organizations of which
I was a member. However, I may have been a member of other organizations
for which I no longer have records.
8. Military Service and Draft Status: Identify any service in
the U.S. Military, including dates of service, branch of service,
rank or rate, serial number and type of discharge received. Please
list, by approximate date, Selective Service classifications you
have held, and state briefly the reasons for any classification
other than I-A.
Not applicable.
9. Honors and Awards: List any scholarships, fellowships, honorary
degrees, academic or professional honors or awards, honorary society
memberships, military awards, and any other special recognition
for outstanding service or achievement you have received.
Honorary Doctorate, Pepperdine University School of Law Outstanding
Alumni Award, Southern Methodist University School of Law Outstanding
Alumni Award, Southern Methodist University Woman of the Year,
Today's Dallas Woman Women of Excellence Award, Women's Enterprise
Magazine Louise D. Raggio Award, Dallas Women's Lawyers Association
Anti-Defamation League, Jurisprudence Award 1996 Merrill Hartman
Award, Legal Services of North Texas Sarah T. Hughes Award, Women
in the Law Section, State Bar of Texas 1992 Human Relations Award,
American Jewish Committee 1992 Justinian Award for Community Service
DAYL Outstanding Young Lawyer of Dallas National Award for Leadership
and Commitment, Girls Club 2005 Sandra Day O'Connor Award, Texas
Center for Legal Ethics and Professionalism Southern Methodist
Law School: Comments Editor of the Southwestern Law Journal (now
SMU Law Review), Barristers, Moot Court Board Southern Methodist
University "M" Award, Mortar Board, Kirkos
10. Bar Associations: List all bar associations or legal or judicial-related
committees, selection panels or conferences of which you are or
have been a member, and give the titles and dates of any offices
which you have held in such groups. Also, if any such association,
committee or conference of which you were or are a member issued
any reports, memoranda or policy statements prepared or produced
with your participation, please furnish the committee with four
(4) copies of these materials, if they are available to you. Please
also provide four (4) copies of any resolutions on which you voted,
the corresponding votes and minutes, as well as any speeches or
statements you made with regard to policy decisions or positions
taken by the association, committee or conference that you participated
in. "Participation" includes, but is not limited to,
membership in any working group of any such association, committee
or conference which produced a report, memorandum or policy statement
even where you did not contribute to it.
American Bar Association 1976-Present 1980-1981 Chair, Young
Lawyers Division Committee on Antitrust Law 1985-1988 Co-Chair,
Business Torts Litigation Committee, Section of Litigation 1987-1990
Member, Consortium on Legal Services to the Public 1989-1998 Member,
Board of Editors, ABA Journal (Chair, 1998) 1992-1997 Member,
House of Delegates, representing State Bar of Texas 1993-1994
Member, House of Delegates, Special Committee on Hearings 1993-1995
Member, Standing Committee on Bar Activities and Services 1993-1997
ABA Membership Chair for State of Texas (Co-Chair, 1997-1999)
1993-1995 Member, Special Committee on Governance 1994-1996; Chair,
House of Delegates Committee on Rules and Calendar 1999-2000 1995-1996
Member, Standing Committee on Association Communications, representing
ABA Journal Board of Editors 1995-1998 Member, Standing Committee
on Election Law 1996-1998 Chair, House of Delegates Committee
on Credentials & Admissions 1997-1999 Member, House of Delegates
Representing Dallas Bar Association 1998-1999 Chair, House of
Delegates Select Committee 1998-1999 Member, Standing Committee
on Legal Aid and Indigent Defendants 1999-2001 Member, Council
of the Board of Governors Fund for Justice & Education 1999-2001
Member, House of Delegates as State Delegate for Texas 1999-2001
Member, Nominating Committee (as a state delegate) 1999-2000 Member,
Standing Committee on Legal Aid and Indigent Defendants 2000-2001
Member, Board of Governors Committee on Research About the Future
of the Legal Profession, as the representative of the Commission
on Multi-jurisdictional Practice 2000-2001 Chair, Commission on
Multijurisdictional Practice 2000-2001 Chair, House of Delegates
Committee on Technology and Communications 2002-2003 Federal Government
Liaison, Litigation Section I withdrew from most American Bar
Association activities in 2001 upon appointment to the White House.
State Bar of Texas 1991-1994 President-Elect, President, and Immediate
Past President Date unknown: Director, Fact Finding Committee
Date unknown: Chair, Goals and Implementation Committee Date unknown:
Vice Chair, State Bar Antitrust Section Council Date unknown:
Chair and Vice Chair, Legal Services to the Poor in Civil Matters
Date unknown: Member, Administration of Justice Committee Date
unknown: Member, Directors Orientation Committee Date unknown:
Member, General Counsel Advisory Committee Date unknown: Member,
State Bar Litigation Section Council Date unknown: Councilmember,
Women in the Law Section Dallas Bar Association (joined in 1971)
1984-1987 President-Elect, President, and Immediate Past President
Date unknown: Chair of the Board Date unknown: Vice Chair of the
Board Date unknown: Vice President, Activities and Administrative
Date unknown: Secretary Date unknown: Member, Evaluation Committee,
Committee for a Qualified Judiciary Date unknown: Life Fellow,
American Bar Foundation Date unknown: Life Fellow, Texas Bar Foundation
Date unknown: Charter Fellow, Lifetime Member, Dallas Bar Foundation
I have made my best efforts to include all organizations of which
I was a member. However, I may have been a member of other organizations
for which I no longer have records.
11. Bar and Court Admission:
a. List the date(s) you took the examination and date you passed
for all states where you sat for a bar examination. List any state
in which you applied for reciprocal admission without taking the
bar examination and the date of such admission or refusal of such
admission.
State Bar of Texas Examination administered in July 1970. Admitted
to the State Bar of Texas on September 18, 1970. Reciprocal Admission
to the District of Columbia Bar on April 4, 1997.
Earlier this year, I received notice that my dues for the District
of Columbia Bar were delinquent and as a result my ability to
practice law in D.C. had been suspended. I immediately sent the
dues in to remedy the delinquency. The non-payment was not intentioned,
and I corrected the situation upon receiving the letter.
b. List all courts in which you have been admitted to practice,
including dates of admission and any lapses in membership. Please
explain the reason for any lapse of membership. Give the same
information for administrative bodies which require special admission
to practice.
Supreme Court of the United States, April 19, 1982.
United States Court of Appeals for the Fifth Circuit, October
1, 1981 - January 23, 2003. In January 2003, after the Fifth Circuit
instituted new fee rules, I did not re-apply for admission because
I was not practicing law in the private sector.
United States District Court for the Eastern District of Texas,
February 12, 1996. United States District Court for the Northern
District of Texas, August 1, 1971. United States District Court
for the Southern District of Texas, October 27, 1989. United States
District Court for the Western District of Texas, April 6, 1987.
12. Memberships:
a. List all professional, business, fraternal, scholarly, civic,
charitable, or other organizations, other than those listed in
response to Questions 10 or 11 to which you belong, or to which
you have belonged, or in which you have participated since graduation
from law school. Provide dates of membership or participation,
and indicate any office you held. Include clubs, working groups,
advisory or editorial boards, panels, committees, conferences,
or publications. Please describe briefly the nature and objectives
of each such organization, the nature of your participation in
each such organization, and identify an officer or other person
from whom more detailed information may be obtained.
Former Business Activities 1998 (approx.)-Present: Harriet Miers
P.C., a corporation that is no longer active within partnership
at Locke Liddell and Sapp, LLP, 5115 Royal Crest Drive, Dallas,
TX 75229.
Late 1990's: Member, Board of Directors, Attorneys' Liability
Assurance Society, a mutual insurance company owned by the law
firms it insures. Contact: Chairman of the Board, Richard Levy,
(441) 292-9989.
January 1993-1997: Director, Capstead Mortgage Corporation, a
real estate investment company. Contact: Paul Low, Chairman, (214)
874-2323.
Mid-1980's: HM Investments, partnership to hold oil and gas interests,
5115 Royal Crest Drive, Dallas, TX 75229.
Mid-1980's: HEM Investments, an investment vehicle, 5115 Royal
Crest Drive, Dallas, TX 75229. Dates not available: Member, Board
of Directors, Comerica Bank, Texas, Contact: President & CEO,
Texas Division, Charles Gummer, (214) 589-1400.
Dates not available: Member, Board of Directors, Tyler Cabot
Mortgage Securities Fund, an investment company. Contact information
is not available.
Community Leadership
2000: Chair, Women's Leadership Council, United Way, a philanthropic
non-profit organization. Contact: Maribess Miller, Chairwoman,
(214) 978-0000.
Fall 1998-January 2001: Member, Board of Directors, Dallas 2012
Committee, a non-profit organization that represented Dallas in
a bid to host the 2012 Olympic Games. Organization no longer exists.
Contact: Tom Luce, Former Chairman of the Board (currently with
the U.S. Department of Education), (202) 260-7392.
1996-2000: Member, Martindale Hubbell Lexis Nexis Advisory Board,
a legal directory company. Contact: Ed Biggalow, Human Resources,
(800) 526-4902.
1993-2005: Member, Petroleum Club, a social and business club.
Contact: (214) 871-1500.
1992-1994; 1997-1999: Member, Board of Directors, Dallas Citizens
Council, a group of local business leaders. Contact: Elaine Agather,
(214) 871-1500.
1987: Member, Progressive Voters League, a local political organization.
Organization no longer exists.
1987: Chair, Advisory Committee, Girls, Inc. of Dallas, a national
non-profit youth organization. Contact: Cecilia Boone, Dallas
Chair, (214) 654-4530.
1987: Mayor's Task Force on Crime, an organization that made
recommendations to city leadership on police reforms. Contact:
(214) 670-4054.
1985-2001: Board of Trustees, Vice Chair, Executive Planning
Committee, Center for American and International Law (formerly
known as the Southwestern Legal Foundation), an international
nonprofit educational institution. Contact: Mark Smith, (972)
244-3400.
1983-Present: Board of Consultants Member (1983-1987 Board of
Directors, 1987-1989 Associate Board Member, 1993-Present, Board
of Consultants Member), an organization that works to translate
the Bible into languages into which it has not yet been translated.
Contact: Randal Smith, (972) 708-7460. 1974: Board Member, Dallas
Legal Services, an organization that provides legal representation
to the poor. Contact: Herese Cook, (214) 748-1234.
Dates not available: Board Member, Young Women's Christian Association,
a women's group that provides services to the community such as
domestic violence prevention programs. Contact information is
not available.
Dates not available: Board Member, Child Care Dallas, a state-funded,
partially subsidized child care program. Contact: Susan Hoff,
President, (214) 630-7911.
Dates not available: Chair, Greater Dallas Chamber Local Governmental
Affairs Committee and Executive Committee, an association of local
businesses with an interest in public policy. Contact: Jo Trizila,
Director of Media Relations, (214) 746-6600.
Dates not available: Board Member, Community Council of Greater
Dallas, a nonprofit organization. Contact: Martha Blaine, Executive
Director, (214) 871-5065.
Dates not available: Board Member, Goodwill Industries of Dallas,
a non-profit organization that provides job training and employment
services to people with barriers to employment. Contact: Rod Ginther,
(214) 638-2800.
Dates not available: Board Member, EXODUS Ministry, Inc., a Christian
organization that assists ex-offenders and families. Contact:
Glenn Able, (214) 827-3772.
Dates not available: Chair, Higher Education Task Force, Goals
for Dallas, a local organization focused on education reform.
Contact information is not available. Contact: John Lewis, Former
Executive Director, (214) 841-9501.
Dates not available: Board Member, Volunteer Center Resource
Clearinghouse, a local volunteer opportunity center. Contact:
(214) 370-4100.
June 1989-March 2001: Southern Methodist University School of
Law, Executive Committee, a group that meets twice a year to discuss
all aspects of the law school, including admissions and finances.
Contact: Dean John Attanasio, (214) 768-2621.
Dates not available: Member, Charter 100, an organization of
Dallas business women and civic leaders. Contact information not
available.
Dates not available: Member, Advisory Committee, Dallas Independent
School District's Magnet School of Government and Law, a public
magnet school. Contact: Robert Geisler, (972) 925-5950.
Dates not available: Member, Meals on Wheels Task Force, a non-profit
organization that provides meals for the elderly. Contact information
is not available.
Dates not available: Member, Dallas Women's Foundation, Contact:
Julie Bleicher, President, (214) 965-9977.
Dates not available: Member, Advisory Committee, Women's Center
of Dallas, a local non-profit association dedicated to assisting
women. Contact information not available.
Dates not available: Dallas Forum. Contact information not available.
Dates not available: Dallas Athletic Club, 4111 La Prada, Dallas,
TX 75228, Contact: (972) 279-6517.
Former Government Leadership
1999: Vice-Chair, City of Dallas Ethics Review Task Force, appointed
by a city council member to review the city's ethics guidelines.
Contact information not available.
May 1995-March 2000: Chair, Texas Lottery Commission, a commission
responsible for the management and sale of lottery products. Contact:
Gary Grief, Acting Director, (512) 344-5160.
February 1993-November 1995: Chair (1994), Judicial Nomination
Committee, a Dallas City Council commission that makes recommendations
for municipal judge nominations. Contact: Marshall J. Doke, Jr.,
Chair, (214) 999-4733.
June 1989-November 1991: Trustee, Dallas Police and Fire Pension
Board, responsible for the administration of the police and fire
pension system. Contact: Lt. Gerald Brown, (214) 638-3863.
December 1991-end date unavailable: City Attorney Search Committee,
the Committee was formed by Dallas City Council to look for the
most qualified candidates to serve as attorney for city of Dallas.
Contact Judge Sam Lindsey, (214) 753-2365.
October 1989-November 1991: Ad Hoc Public Housing Committee (appointed
by the Mayor). Contact information is not available.
June 1989-November 1991: Member-At-Large, Dallas City Council,
an elected legislative body that works with the Mayor in service
to the City of Dallas. Contact: (214) 670-4054.
August 1987-August 1988: Community Development Advisory Committee
(appointed by the Mayor). Contact information is not available.
1989-1991: Chair, Railtran Advisory Committee, local transportation
advisory committee. Contact information is not available.
Dates not available: Director, North Texas Commission, a regional
non-profit economic development consortium. Contact: Dan S. Petty,
President & CEO, (972) 621-0400.
Dates unknown: Chair, Committee to Review City Budget Process.
Contact information is not available.
I have made my best efforts to include all organizations of which
I was a member. However, I may have been a member of other organizations
for which I no longer have records. In any instance in which I
have not provided dates, my records do not indicate that information,
and I have been unable to verify the dates of membership or service.
b. If any of these organizations of which you were or are a member
or in which you participated issued any reports, memoranda or
policy statements prepared or produced with your participation,
please furnish the committee with four (4) copies of these materials,
if they are available to you. Please also provide four (4) copies
of any resolutions on which you voted, the corresponding votes
and minutes, as well as any speeches or statements you made with
regard to policy decisions or positions taken by the association,
committee or conference that you participated in. "Participation"
includes, but is not limited to, membership in any working group
of any such association, committee or conference which produced
a report, memorandum or policy statement even where you did not
contribute to it. If any of these materials are not available
to you, please give the name and address of the organization that
issued the report, memoranda or policy statement, the date of
the document, and a summary of its subject matter.
I have not maintained personal records for the vast majority
of organizations with which I have been affiliated. Where I have
been able to secure records responsive to this request, they are
attached.
c. Please indicate whether any of these organizations currently
discriminate or formerly discriminated on the basis of race, sex,
or religion - either through formal membership requirements or
the practical implementation of membership policies. If so, describe
any action you have taken to change these policies and practices.
To my knowledge, none of these organizations had membership requirements
or policies that were discriminatory during or prior to my membership.
13. Published Writings, Testimony and Speeches:
a. List the titles, publishers, and dates of books, articles,
reports, letters to the editor, editorial pieces, or other material
you have written or edited, including material published only
on the Internet. Please supply four (4) copies of all published
material to the Committee. "Recommended Reading: Issues for
the Multijurisdictional Lawyer where pro hacvice Admission Does
Not Apply," Arkansas L. Notes 131, 2001. "When Two Become
One: Steps to a Successful Firm Merger," Texas Law 67, June
26, 2000. "ABA Study of Multistate Practice on Fast Track,"
36 Tennessee Bar Journal 6, 2000. "Commission on Multijurisdictional
Practice," 11 Professional Lawyer 20, 2000. Continuing Legal
Education Materials: "Texas Life Insurance Update,"
ALI/ABA Conference on Life Insurance Litigation, Course Number
SD65, 1999. (Available on Lexis, but no Lexis citation or document
number). "Science, Business, or Art? (President's Opinion),"
56 Texas Bar Journal 446, 1993. "As if the Funds were our
Own... (President's Opinion)," 56 Texas Bar Journal 330,
1993. "What We Have Here Is a Failure to Communicate,"
56 Texas Bar Journal 210, 1993. "Our Number One Priority
(President's Opinion)," 56 Texas Bar Journal 106, 1993. "Focusing
on the Positive (President's Opinion)," 56 Texas Bar Journal
6, 1993. "Don't Blame the Legal System for Fort Worth Rampage,"
Texas Law 10, July 27, 1992. "Time to Think (President's
Opinion)," 55 Texas Bar Journal 1112, 1992. "Parts of
the Whole Working Together (President's Opinion)," 55 Texas
Bar Journal 1012, 1992. "Inclusion, Education and Mentoring
(President's Opinion)," 55 Texas Bar Journal 910, 1992. "Justice
for All - All for Justice (President's Opinion)," 55 Texas
Bar Journal 780, 1992. "The Real Issue... (mandatory pro
bono) (President's Opinion)," 55 Texas Bar Journal 664, 1992.
"Legacies of a Lawyer (President's Opinion)," 55 Texas
Bar Journal 548, 1992. "Not Just An Ordinary Saturday,"
Dallas Morning News at 33A, May 1, 1986. "Farewell (President's
Report)," Dallas Bar Headnotes 4, Dec. 16, 1985. President's
Report, Dallas Bar Headnotes, Nov. 25, 1985. President's Report,
Dallas Bar Headnotes, Nov. 11, 1985. President's Report, Dallas
Bar Headnotes, Oct. 28, 1985. "The Dallas Bar is Committed
to Supporting the Public Defenders Program (President's Report),"
Dallas Bar Headnotes 4, Oct. 21, 1985. President's Report, Dallas
Bar Headnotes, Oct. 14, 1985. President's Report, Dallas Bar Headnotes,
Sept. 29, 1985. "Pro Bono the Arts (President's Report),"
Dallas Bar Headnotes 4, Sept. 16, 1985. President's Report, Dallas
Bar Headnotes, Sept. 9, 1985. President's Report, Dallas Bar Headnotes,
Aug. 27, 1985. "Belo II Update (President's Report),"
Dallas Bar Headnotes 4, Aug. 19, 1985. "The Choice to Serve
(President's Report)," Dallas Bar Headnotes 4, July 15, 1985.
"Courthouse Update," President's Report, Dallas Bar
Headnotes, July 8, 1985. "A Life of Service: A Legacy of
Concern (President's Report)," Dallas Bar Headnotes 4, June
17, 1985. President's Report, Dallas Bar Headnotes, June 10, 1985.
President's Report, Dallas Bar Headnotes, June 3, 1985. President's
Report, Dallas Bar Headnotes, May 27, 1985. "Professionalism
Includes a Sense of Responsibility to the Legal System and the
Society in which We Live (President's Report)," Dallas Bar
Headnotes 4, May 20, 1985. President's Report, Dallas Bar Headnotes,
May 13, 1985. President's Report, Dallas Bar Headnotes, May 6,
1985. President's Report, Dallas Bar Headnotes, April 29, 1985.
"Open Letter to District Attorney Henry Wade," (President's
Report), Dallas Bar Headnotes, April 22, 1985. "The Dallas
Bar Will Remain Committed to Fulfilling its Responsibilities as
Stewards of the Justice System" (President's Report), Dallas
Bar Headnotes 4, April 15, 1985. President's Report, Dallas Bar
Headnotes, April 8, 1985. President's Report, Dallas Bar Headnotes,
April 1, 1985. "Bond Election Update (President's Report),"
Dallas Bar Headnotes, March 25, 1985. "Big D is for DAYL
(President's Report)," Dallas Bar Headnotes 4, March 18,
1985. President's Report, Dallas Bar Headnotes, March 11, 1985.
President's Report, Dallas Bar Headnotes, Feb. 25, 1985 "One
of the Most Significant Contributions to the Dallas Community
by the Dallas Bar (President's Report)," Dallas Bar Headnotes
4, Feb. 18, 1985. President's Report, Dallas Bar Headnotes, Feb.
11, 1985 President's Report, Dallas Bar Headnotes, Feb. 4, 1985
President's Report, Dallas Bar Headnotes, January 28, 1985 "A
Decade Later (President's Report)," Dallas Bar Headnotes
4, January 21, 1985. President's Report, Dallas Bar Headnotes,
January 14, 1985. "Lawyers Help Feature Dallas (President's
Report)," Dallas Bar Headnotes 4, Aug. 20, 1984. "Note,
Mental Suffering - Texas Stands Firm - No 'New' Tort," 22
Southwestern Law Journal 669, 1968. "Dallas Bar Loses Past
President and A Great Friend," Dallas Bar Headnotes, Undated.
b. Please supply four (4) copies of any testimony, official statements
or other communicc@ðÊàc@Êàc@ðÊàc@Êàations
relating, in whole or in part, to matters of public policy, that
you have issued or provided or that others presented on your behalf
to public bodies or public officials. Records relating to my service
on the Texas Lottery Commission and the Dallas City Council have
been provided to the Committee. These records contain documents
that are responsive. I have attached add
c. Please list all speeches, talks, or presentations by you which
relate in whole or in part to issues of law or public policy.
For each one, please give the name and address of the group before
which the speech was given, the date of the speech, and a summary
of its subject matter. For each of these, please supply four (4)
copies of your prepared remarks or any outline or notes from which
you spoke. If a recording or transcript is available, please supply
four (4) copies of those as well. If press reports about the speech,
talk, or presentation are available to you, please supply them.
14. Public Office, Political Activities and Affiliations:
a. List chronologically any public offices you have held, other
than judicial offices, including the terms of service and whether
such positions were elected or appointed. If appointed, please
include the name of the individual who appointed you. Also, state
chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.
Dates unknown: Chair, Committee to Review City Budget Process.
Additional information is not available.
1970-1972: Law Clerk to Judge Joe Estes, U.S. District Court
for the Northern District of Texas. Appointed by Judge Joe Estes.
August 1987-August 1988: Member of the Community Development
Advisory Committee. Appointed by Dallas Mayor Annette Strauss.
1987: Mayor's Task Force on Crime. Appointed by Dallas Mayor
Annette Strauss.
1989-1991: Chair, Railtran Advisory Committee.
June 1989-November 1991: Trustee, Dallas Police and Fire Pension
Board.
June 1989-November 1991: Member-at-Large of the Dallas City Council.
Elected.
October 1989-November 1991: Member of Ad Hoc Public Housing Committee.
Appointed by Dallas Mayor Annette Strauss.
February 1993-November 1995: Chair (1994), Judicial Nomination
Committee, City of Dallas.
May 1995-March 2000: Chair, Texas Lottery Commission. Appointed
by then-Governor George W. Bush.
1999: Vice-Chair, City of Dallas Ethics Review Task Force, appointed
by City Councilmember Mary Poss to review the city's ethics guidelines.
January 2001-June 2003: Staff Secretary, The White House. Appointed
by President George W. Bush.
July 2003-February 2005: Deputy Chief of Staff for Policy, The
White House. Appointed by President George W. Bush.
February 2005-Present: Counsel to the President, The White House.
Appointed by President George W. Bush.
b. If, in connection with any public office you have held, there
were any reports, memoranda, or policy statements prepared or
produced with your participation, please supply four (4) copies
of these materials. Please also provide four (4) copies of any
resolutions, motions, legislation, nominations, or other matters
on which you voted as an elected official, the corresponding votes
and minutes, as well as any speeches or statements you made with
regard to policy decisions or positions taken. "Participation"
includes, but is not limited to, membership in any subcommittee,
working group or other such group, which produced a report, memorandum
or policy statement even where you did not contribute to it. If
any of these materials are not available to you, please give the
name of the document, the date of the document, a summary of its
subject matter, and where it can be found.
The Committee has been provided with available records from my
tenure on the Dallas City Council and the Texas Lottery Commission.
c. List all memberships and offices held in and services rendered,
whether compensated or not, to any political party, election committee,
or transition team.
Please supply four (4) copies of any memoranda analyzing issues
of law or public policy that you wrote on behalf of or in connection
with a presidential transition team.
Treasurer, 1994 Nathan Hecht Judicial Campaign
General Counsel, George W. Bush Committee
General Counsel, 1994 Transition for Governor George W. Bush
General Counsel, 1994 Inaugural of Governor George W. Bush
Chair, Lawyers for Bush 2000
Presidential Transition, 2000-2001, Worked with the Transition
Team concerning the Department of Justice.
I also provided legal services to the Presidential Election Committee
in 2000.
While in private practice, I provided informal advice and counsel
in connection with state judicial campaigns in Texas.
This information is as complete as I can provide at this time.
d. If in connection with any public office, you have ever filed
a financial disclosure form or ethics form or any similar form,
please supply four (4) copies of each one. See attached financial
disclosure forms.
15. Legal Career: Please answer each part separately.
a. Describe chronologically your law practice and legal experience
after graduation from law school including:
i. whether you served as clerk to a judge, and if so, the name
of the judge, the court and the dates of the period you were a
clerk;
I served as a law clerk to Chief Judge Joe Estes of the U.S.
District Court for the Northern District of Texas from 1970-1972.
ii. whether you practiced alone, and if so, the addresses and
dates;
No.
iii. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you have been affiliated,
and the nature of your affiliation with each. Associate (1972-1978),
then Shareholder (1978-1998), and then Partner (1998-January 2001)
of the same firm for 28 years: Locke, Purnell, Boren, Laney &
Neely, after merger Locke Purnell Rain Harrell, after merger Locke
Liddell & Sapp
Locke Liddell & Sapp, LLP 2200 Ross Avenue Suite 2200 Dallas,
Texas 75201-6776
Staff Secretary (January 2001 - June 2003), then Deputy Chief
of Staff for Policy (June 2003 - February 2005), and then Counsel
to the President (February 2005 - Present) The White House Washington,
D.C. 20502
b. Describe: i. the general character of your law practice and
indicate by date when its character has changed over the years.
My law practice has included both public and private service.
First, in public service, I have served since 2001 in various
White House positions, most recently as Counsel to the President.
The Counsel to the President is the chief legal advisor to the
President and the White House. I, and my office, provide advice
on a broad range of matters implicating constitutional, statutory
and regulatory law, including the constitutionality of proposed
regulations and statutes, constitutional prerogatives of the executive
branch, legal policy, international law and treaty obligations,
ethics, national security, executive appointments, and judicial
nominations. I also served as Deputy Chief of Staff for Policy
and Staff Secretary to the President. In these positions, I provided
and managed recommendations and advice on public policy and legal
issues to the President and other White House officials.
Also in public service, I have served as an elected member of
the Dallas City Council (1989-1991) and as the Chair of the Texas
State Lottery Commission (1995-2000). Although I did not serve
strictly as a lawyer, in both of these positions I drew heavily
on my legal background and contributed to the governing laws of
Dallas and the State of Texas respectively.
In private practice, from 1972 until 2001, I was an associate
and then a partner with Locke Liddell & Sapp, LLP, and its
predecessor firms. My practice is best described as a general
litigation and counseling practice. In my years in private practice
I provided a broad range of corporate and individual clients with
counseling, transactional assistance, and litigation services.
I began my career as an associate in the corporate section of
the firm, but soon shifted to commercial litigation. Over the
years, I have handled litigation matters including antitrust,
class action, contracts, family, First Amendment, immigration,
intellectual property, products liability, real estate, mortgage
lending, and securities law. My clients have ranged from multi-billion
dollar international corporations to individuals. Many of my clients,
both individuals and corporations, required a range of services,
including litigation, transactional issues, and general legal
counseling.
I have litigated matters in the Texas state courts and in the
Federal courts, predominantly those in Texas and the United States
Court of Appeals for the Fifth Circuit. My appearances in court
included arguing motions, conducting full evidentiary hearings
and trials, and briefing and arguing appeals. Given the nature
of a modern corporate litigation practice, however, many cases
were resolved without actual litigation or without a trial, and
therefore are not reported.
I believe strongly in attorneys volunteering their time and giving
back to their communities. While in private practice, I made the
time to provide legal services pro bono, including work of a non-trial
nature, such as contracts, family law, and wills. I pursued two
such cases, one on behalf of a prisoner, and the other on behalf
of a social security claimant, all the way to the Supreme Court
of the United States, which denied certiorari. In addition to
my practice, throughout my career, I have served in numerous leadership
capacities in the Dallas Bar Association, State Bar of Texas,
and the American Bar Association. In these positions I worked
to improve the practice of law and the legal system generally.
Immediately after law school, from 1970 to 1972, I was a law
clerk to Judge Joe Estes, U.S. District Court for the Northern
District of Texas. I conducted research and advised Judge Estes
on the diverse issues that come before the Federal district courts,
both criminal and civil.
ii. your typical former clients and the areas, if any, in which
you have specialized. I have represented a broad range of clients,
including individuals, partnerships, small and large corporations,
and state and local government entities. For example, my clients
included: Microsoft Corporation, Disney Enterprises, Inc., SunGard
Data Systems, Inc., Schering Plough Corporation, C. R. Bard, Inc.,
Lomas Financial Corporation and individuals related to the corporation,
Texas Automobile Dealers Association, Security Life of Denver,
Chase Manhattan Bank, General Cable Corporation, Barrick Gold,
Interstate Insurance, the Dallas Court of Appeals, Computer*Thought
Corporation, Estronics, Inc., Federal National Mortgage Corporation,
PNC Mortgage Corporation, Sears Mortgage Corporation, Polk &
Patton Energy, Teachers Insurance & Annuity Association, A.
H. Belo Corporation, Shintech Incorporated, Trinity Industries,
TXI Industries, and Smith County, Texas.
c. Describe whether you appeared in court frequently, occasionally,
or not at all. If the frequency of your appearances in court varied,
describe such variance, providing dates. I maintained an active
litigation practice throughout my career in the private sector.
During some periods, appearances in court would be frequent, and
in some periods, appearances in court would be occasional, depending
on the nature of the matters at hand. i. Indicate the percentage
of these appearances in:
1. Federal courts; 2. state courts of record; 3. other courts.
While it is difficult to approximate these percentages, I had
cases in both the Federal courts and State courts. My work was
not trial intensive due to its nature, but I tried cases and argued
appeals in both Federal and State courts.
ii. Indicate the percentage of these appearances in: 1. civil
proceedings; 2. criminal proceedings. Almost all civil.
d. State the number of cases in courts of record you tried to
verdict or judgment (rather than settled), indicating whether
you were sole counsel, chief counsel, or associate counsel. For
any appellate cases, state whether you made oral arguments, and
supply four (4) copies of any briefs that were filed for those
cases.
i. What percentage of these trials were: 1. jury; 2. non-jury.
While it is difficult to approximate these percentages, I have
identified eight cases that were tried to verdict. I was lead
counsel or sole counsel in four, lead local counsel in one, and
associate counsel in three.
I recall arguing the following appellate cases: Jones v. Bush,
244 F.3d 144 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001);
Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25
(Tex.App.-San Antonio, 1998); Microsoft Corp. v. Manning, 914
S.W.2d 602 (Tex.App.-Texarkana 1995); Thanksgiving Tower Partners,
et al. v. Anros Thanksgiving Partners, 64 F.3d 227 (5th Cir. 1995);
Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir. 1985); In
re Grand Jury Proceedings, Misc. No. 1331, 712 F.2d 973 (5th Cir.
1983); Southwest Securities, Inc. v. Sungard Data Systems, Inc.,
2000 WL 1196338 (Tex.App.-Dallas 2000). I may have argued at the
appellate level in other cases that I cannot recall and for which
I have no records.
e. Describe your practice, if any, before the Supreme Court of
the United States. Please supply four (4) copies of any briefs,
amicus or otherwise, and, if applicable, any oral argument transcripts
before the Supreme Court in connection with your practice. Give
a detailed summary of the substance of each case, outlining briefly
the factual and legal issues involved, the party or parties whom
you represented, describe in detail the nature of your participation
in the litigation and the final disposition of the case, and provide
the individual name, addresses, and telephone numbers of co-counsel
and of principal counsel for each of the other parties.
I represented clients in three cases in which certiorari to the
Supreme Court of the United States was sought.
1. Jones v. Bush, 122 F. Supp. 2d 713 (N. D. Tex. 2000), relief
denied, 244 F.3d 144 (5th Cir. 2000) (unpublished), cert. denied,
531 U.S. 1062 (2001).
I served as lead counsel for then-Governor George W. Bush in
this case involving the 2000 presidential election. The litigation
concerned a clause of the Twelfth Amendment to the Constitution
that provides: "The Electors shall meet in their respective
states and vote by ballot for President and Vice-President, one
of whom, at least, shall not be an inhabitant of the same state
with themselves." U.S. Const. amend. XII. This clause bars
a member of the Electoral College from voting for inhabitants
of the same state as him or herself for both President and Vice-President.
Texas voters brought suit in the United States District Court
for the Northern District of Texas, arguing that George Bush and
Richard Cheney were both inhabitants of Texas, which barred Texas
Electors from voting for both candidates. The plaintiffs sought
a preliminary injunction to prevent the Texas Electors from casting
their votes for both then-Governor Bush and Mr. Cheney.
The case turned primarily on two legal issues: first, whether
the plaintiffs had standing under Article III of the Constitution
to pursue their action, and second, whether Mr. Cheney was an
inhabitant of Texas or Wyoming. As counsel for then-Governor Bush,
I defended the action on his behalf in the district court, filing,
along with counsel for Mr. Cheney, a Motion to Dismiss and a Brief
and Appendix in Opposition to the Application for Preliminary
Injunction. In these filings, I argued on behalf of then-Governor
Bush that the plaintiffs lacked constitutional standing to sue
under the relevant clause of the Twelfth Amendment, and in the
alternative that Mr. Cheney was an inhabitant of Wyoming rather
than Texas within the meaning of the Twelfth Amendment. The district
court granted the motion to dismiss on the basis that the plaintiffs
lacked standing; it also denied the plaintiffs' application for
a preliminary injunction, holding that the plaintiffs had failed
to show a substantial likelihood of success on their contention
that Mr. Cheney was an inhabitant of Texas. Jones, 122 F. Supp.
2d at 715.
The plaintiffs appealed to the U.S. Court of Appeals for the
Fifth Circuit. I, together with counsel for Mr. Cheney, filed
the brief on behalf of appellees. The brief defended the district
court's holdings regarding standing and Mr. Cheney's inhabitance.
The day after the brief was filed, and the same day as the oral
argument, the Fifth Circuit denied the appellants all requested
relief. See 244 F.3d 144 (5th Cir. 2000) (unpublished). When appellants
petitioned the Supreme Court to review the case, respondents waived
response to the petition, which petition the Court denied. See
531 U.S. 1062 (2001).
Counsel: For Governor George W. Bush: Jerry K. Clements Roger
B. Cowie Locke Liddell & Sapp LLP 2200 Ross Avenue, Suite
2200 Dallas, TX 75201-6776 (214) 740-8000
E. Lee Parsley E. Lee Parsley, P.C. 100 Congress Avenue, Suite
240 Austin, TX 78701 (512) 481-8800
For Richard B. Cheney: Robin P. Hartmann Stacy L. Brainin Haynes
& Boone LLP 901 Main Street Suite 3100 Dallas, TX 75202-3789
(214) 651-5000
For Elton Bomer, Texas Secretary of State: Stacy L. Brainin Haynes
& Boone LLP 901 Main Street Suite 3100 Dallas, TX 75202-3789
(214) 651-5000
For the Texas Electors: Hon. John Cornyn (Former Attorney General,
State of Texas) 517 Hart Senate Office Building Washington, D.C.
20510 (202) 224-2934
Andy Taylor Andy Taylor & Associates, P.C. 405 Main Street,
Suite 200 Houston, TX 77002 (713) 222-1817
Brent A. Benoit Locke Liddell & Sapp LLP 3400 JP Morgan Chase
Tower 600 Travis Street Houston, TX 77002 (713) 226-1570
For the Texas Registered Voters: Charles W. McGarry The Law Office
of Charles McGarry 701 Commerce Street, Suite 400 Dallas, TX 75202
(214) 748-0800
James A. Jones Current address unknown Prof. Sanford V. Levinson
The University of Texas School of Law 727 E. Dean Keeton Street
Austin, TX 78705 (512) 232-1351
William K. Berenson Law Offices of William K. Berenson Suite
900 River Plaza Tower 1701 River Run Fort Worth, Texas 76107 (817)
885-8000 2. Popeko v. United States, 513 F.2d 771 (5th Cir. 1975),
cert. denied, 423 U.S. 917 (1975)
I served as the court-appointed attorney for Alex A. Popeko in
the appeal of his habeas claim. Mr. Popeko was convicted in 1960
on two counts of causing to be transported in interstate commerce
falsely made, forged and counterfeited securities, in violation
of 18 U.S.C. § 2314, and one count of conspiracy to commit
the latter offense, in violation of 18 U.S.C. § 371. He was
sentenced to two consecutive 10-year terms of imprisonment, one
per substantive count, and to a 5-year term of imprisonment on
the conspiracy count, concurrent with the sentence on the second
substantive count. On direct appeal, the Fifth Circuit affirmed.
Popeko v. United States, 294 F.2d 168 (5th Cir. 1961). In 1962,
Mr. Popeko filed a motion for correction of an illegal sentence
under Fed. R. Crim. P. 35. The district court denied the motion,
and the Fifth Circuit again affirmed in a brief opinion. Popeko
v. United States, 309 F.2d 752 (5th Cir. 1962) (per curiam).
Over a decade later, in 1973, Mr. Popeko filed a motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
He contended that, although the two forged the checks in question
were separately cashed at different banks in San Antonio, the
interstate transportation of the checks did not occur until the
San Antonio Branch of the Federal Reserve Bank forwarded them
in the same envelope across state lines to the Detroit Branch
of the Federal Reserve Bank. Consequently, he argued, he had committed
only one crime justifying only one 10-year sentence. The district
court rejected this argument, holding that, because Mr. Popeko
had negotiated the checks separately, he had committed two crimes
justifying two convictions and 10-year sentences, even though
the checks were later transported together in the same envelope.
I represented Mr. Popeko in the Fifth Circuit on appeal of the
denial of his § 2255 motion. The Fifth Circuit affirmed.
513 F.2d 771 (5th Cir. 1975). It held that it had already rejected
Mr. Popeko's "single offense" argument in its 1962 decision
respecting his Rule 35 motion; although the 1962 decision had
not explicitly addressed the argument, it had necessarily rejected
the contention, and the court was bound by that previous decision.
Id. at 773. The court then noted that its position on the "single
offense" issue accorded with that of the Eighth Circuit in
Amer v. United States, 367 F.2d 803 (8th Cir. 1966), but was at
odds with that of the Ninth Circuit in Gilinsky v. United States,
368 F.2d 487 (9th Cir. 1966).
I again represented Mr. Popeko in his petition to the Supreme
Court for a writ of certiorari. In that petition, I argued on
behalf of Mr. Popeko that the Supreme Court should review the
case to resolve the split between the Federal appellate courts
that the Fifth Circuit had noted. Such divisions are one of the
primary reasons why the Supreme Court agrees to review particular
cases. See Supreme Court Rule 10(a) (a consideration for granting
review is that "a United States court of appeals has entered
a decision in conflict with the decision of another United States
court of appeals on the same important matter"). The petition
also urged that the Fifth Circuit's holding on the "single
offense" issue conflicted with Supreme Court precedents.
The United States filed a memorandum in opposition, arguing principally
that the Fifth Circuit was correct to decline to reconsider Mr.
Popeko's claim, given that it had previously decided the claim
against him in the Rule 35 appeal. Mem. for the United States
in Opp. 2-3. The United States acknowledged the circuit split
(and, in fact, noting that the Seventh Circuit had joined the
Fifth and Eighth Circuits, see United States v. Dilts, 501 F.2d
531 (7th Cir. 1974)), but argued, among other things, that "[i]t
is not certain that, in view of the decisions in three other circuits
to the contrary, the Ninth Circuit now would adhere to its ruling
in Gilinsky." Id. at 3 n.2.
The Supreme Court denied the petition for certiorari. 423 U.S.
917 (1975).
Opposing Counsel:
For the United States: Jeremiah Handy (deceased) Former Assistant
U.S. Attorney Hon. Robert H. Bork (at certiorari stage, as Solicitor
General) American Enterprise Institute 1150 17th Street, N.W.
Washington, D.C. 20036
3. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981), cert. denied,
455 U.S. 912 (1982)
I represented Caroline Ware, an indigent mother with a ninth
grade education who had worked as a nurse's aide to support six
children, in this litigation concerning Social Security disability
benefits and Social Security supplemental income.
Ms. Ware applied for benefits without the assistance of an attorney.
Her claim was initially denied; she then requested a hearing.
At the hearing before an administrative law judge (ALJ), Ms. Ware
proceeded without an attorney. The ALJ denied all benefits, concluding
that the medical evidence did not indicate that Ms. Ware had an
impairment severe enough to preclude her from her usual work activity.
That decision became the final decision of the Secretary of Health
and Human Services, Richard S. Schweiker.
At the appellate stage, I represented Ms. Ware pro bono on a
referral from the Dallas Legal Services Corporation. After the
district court, accepting the recommendation of a magistrate judge,
rejected Ms. Ware's petition for review of the ALJ's decision,
I filed an appeal to the Fifth Circuit on Ms. Ware's behalf, arguing
that the ALJ improperly failed to consider Ms. Ware's subjective
complaints of pain as required by case law, that Ms. Ware was
prejudiced by her earlier lack of counsel, that the ALJ failed
to warn Ms. Ware that she bore the burden of proof and to explain
to her the value of counsel, and that the ALJ failed to develop
fully all relevant facts, a problem worsened by the absence of
counsel. The Fifth Circuit affirmed. 651 F.2d 408 (5th Cir. 1981).
It held that the ALJ had indeed erred in failing to consider Ms.
Ware's subjective complaints of pain, but that, on the record
as a whole, "no further findings could be made that would
alter the ALJ's determination." Id. at 412. It further held
that the previous absence of counsel did not prejudice Ms. Ware,
id. at 413, and that there was no reason to think that the development
of additional evidence would have helped Ms. Ware, id. at 414.
Ms. Ware petitioned for rehearing, which the Fifth Circuit denied.
With the assistance of co-counsel, I represented Ms. Ware before
the Supreme Court in her petition for certiorari. The petition
again contended that the ALJ failed to consider Ms. Ware's subjective
complaints of pain, and that the ALJ failed to advise Ms. Ware
regarding her burden of proof and the value of counsel; consequently,
the petition argued, the case should be remanded to the ALJ. The
government waived its right to respond, and the Court denied the
petition, 455 U.S. 912 (1982).
Counsel: Co-counsel for Ms. Ware: Hon. Elizabeth Lang-Miers Justice
5th District Court of Appeals 600 Commerce Street, Suite 200 Dallas,
TX 75202 (214) 712-3400
For Schweiker: Martha Joe Stroud Current address unknown. Rex
E. Lee (at certiorari stage, as Solicitor General) (deceased)
16. Litigation: Describe the ten most significant litigated matters
which you personally handled. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give
a capsule summary of the substance of each case. Identify the
party or parties whom you represented; describe in detail the
nature of your participation in the litigation and the final disposition
of the case. Also state as to each case:
a. the date of representation; b. the name of the court and the
name of the judge or judges before whom the case was litigated;
and c. the individual name, addresses, and telephone numbers of
co-counsel and of principal counsel for each of the other parties.
If any of these cases has already been described in 15(D) above,
it need not be repeated here. In addition, list all litigated
matters in which you were involved, if not covered in 15(D) above
or in the first part of this question.
1. Microsoft Corp. v. Manning, 914 S.W.2d 602 (Tex. App.Texarkana
1995, pet. dism'd). I served as lead local counsel for Microsoft
and was the principal client contact. This case was an appeal
from a state-court ruling that had granted the plaintiffs' motion
for class certification. The putative class of software purchasers
sued Microsoft alleging breach of express warranty, breach of
implied warranty, unjust enrichment, and violations of the Magnuson-Moss
Warranty--Federal Trade Commission Improvement Act, and Washington
Consumer Protection Act. The case turned on the interplay between
state and Federal class action laws, and also raised Federal constitutional
issues involving the proper application of the Due Process Clause
and the Full Faith and Credit Clause. Other issues included the
speculative nature of the damages where no actual loss of data
was shown and whether or not reliance-based causes of action could
be certified as a class action in light of the multitude of individual
fact issues arising from each class member's circumstances. Microsoft
contended that the trial court's class certification violated
Microsoft's due process rights under the state and Federal constitutions
and the Full Faith and Credit Clause of the United States Constitution.
Specifically, Microsoft argued that the trial court violated the
Constitution by applying Texas law to plaintiffs outside Texas
whose own states' laws did not recognize such a legal theory.
However, the trial court held that the class certification did
not violate constitutional due process or the Full Faith and Credit
Clause. Microsoft lost its appeal to the intermediate appellate
court. On behalf of Microsoft, I filed a Petition for Writ of
Mandamus with the Texas Supreme Court, oral argument was granted
and briefs were filed. After Microsoft filed its brief with the
Texas Supreme Court, the district court, on its own motion, vacated
its class certification ruling, stating expressly that it did
so after finding Microsoft's Supreme Court brief persuasive. (Subsequently,
the Texas Supreme Court affirmed Microsoft's position in this
case by holding that reliance-based causes of action are not suitable
for class certification. See Henry Schein, Inc. v. Stromboe, 102
S.W.3d 675 (Tex. 2002)). Thereafter, the plaintiff non-suited
the case.
Counsel of Record: Co-Counsel: Jerry K. Clements, and Thomas
G. Yoxall Locke Liddell & Sapp, LLP 2200 Ross Avenue, Suite
2200 Dallas, TX 75201 (214) 740-8000
Timothy W. Mountz (formerly with Locke Liddell & Sapp, LLP)
Baker Botts LLP 2001 Ross Avenue Dallas, TX 75201 (214) 953-6500
Charles B. Casper and Peter Breslauer Montgomery, McCracken,
Walker & Rhoads, LLP 123 South Broad Street Philadelphia,
PA 19109 (215) 772-1500
Max A. Sandlin, Jr. Sandlin & Buckner 1600 South Washington
Street Marshall, TX 75670 (903) 938-2228 (firm no longer exists)
Thomas E. Kelly, Jr. Preston Gates & Ellis LLP 925 Fourth
Avenue Suite 2900 Seattle, WA 98104 (206) 623-7580
For Plaintiffs: Gary Cruciani and Sam F. Baxter McKool Smith,
A Professional Corporation 300 Crescent Court, Suite 1500 Dallas,
Texas 75201 (214) 978-4000
Franklin Jones, Jr. Jones & Jones, Inc., A Professional Corporation
201 West Houston Street Marshall, TX 75671 (903) 938-4395
Courts and Presiding Judges: The Honorable Bonnie Leggat, 71st
Judicial District Court, Harrison County, Texas; The Honorable
William J. Cornelius, Court of Appeals of Texas, Sixth District,
Texarkana, Texas; The Honorable Charles Bleil, Court of Appeals
of Texas, Sixth District, Texarkana, Texas; The Honorable Ben
Z. Grant, Court of Appeals of Texas, Sixth District, Texarkana,
Texas. 2. Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex), aff'd
mem., 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062
(2001).
I was lead counsel, and along with co-counsel, successfully represented
then-Governor Bush of Texas, who was a defendant in this Twelfth
Amendment case. Texas voters brought suit to preclude Texas electoral
college delegates from voting for George Bush and Richard Cheney
for President and Vice President of United States, on the grounds
that the Twelfth Amendment barred electors from voting for presidential
and vice presidential candidates who were inhabitants of the same
state, Texas. This is one of the very few modern cases to litigate
issues under the Habitation Clause of the Twelfth Amendment. The
district court dismissed this case for lack of standing. The Fifth
Circuit affirmed that dismissal. The U.S. Supreme Court denied
plaintiffs' petition for Writ of Certiorari.
Counsel of Record Co-Counsel: Roger B. Cowie Locke, Liddell and
Sapp 2200 Ross Avenue, Suite 2200 Dallas, TX 78701 (214) 740-8000
E. Lee Parsley (formerly with Locke Liddell & Sapp, LLP)
E. Lee Parsley, P.C. 100 Congress Avenue, Suite 210 Austin, Texas
78701 (512) 481-8800
Evan E. Fitzmaurice (formerly with Locke Liddell & Sapp,
LLP) 2200 Ross Avenue, Suite 2200 Dallas, TX 75201-6776 (for Vice
President Richard B. Cheney)
Barry F. McNeil, Robin P. Hartmann, Stacy L. Brainin, Haynes
& Boone 901 Main Street, Suite 3100 Dallas, TX 75202 (214)
651-5000
David Aufhauser (formerly with Haynes & Boone) UBS Investment
Bank 299 Park Avenue New York, NY 10171 (212) 821-3000
(for Presidential electors of the state of Texas) Senator John
Cornyn (formerly Attorney General of Texas) 517 Hart Senate Office
Bldg. Washington, DC 20510 (202) 224-2934
For Plaintiffs: James A. Jones Jones & Associates, P.C. 5015
Tracy, Suite 100 Dallas, TX 75231 (214) 219-3456
Charles W. McGarry Law Offices of Charles W. McGarry 701 Commerce
Street, Suite 400 Dallas, TX 75202 (214) 748-0800
William K. Berenson Law Offices of William K. Berenson, P.C.
1701 River Run, Suite 900 Fort Worth, TX 70107 (817) 885-8000
Professor Sanford V. Levenson University of Texas School of Law
727 East Dean Keeton Street Austin, TX 78705 (512) 232-1351
Courts and Presiding Judges: The Honorable Sidney A. Fitzwater,
United States District Court for the Northern District of Texas;
The Honorable Patrick E. Higginbotham, United States Court of
Appeals for the Fifth Circuit; The Honorable Jacques L. Wiener,
United States Court of Appeals for the Fifth Circuit; The Honorable
Rhesa H. Barksdale, United States Court of Appeals for the Fifth
Circuit.
3. Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d
25 (Tex. App.San Antonio 1998, pet. dism'd w.o.j.). ("Disney")
at the trial and appeal.
I served as lead counsel for Disney Enterprises ("Disney").
The key question was whether the Texas courts could exert personal
jurisdiction over a wholly-owned Disney subsidiary incorporated
in Delaware. This question raised several potential constitutional
issues. First, the Due Process Clause of the Fourteenth Amendment
requires that there be sufficient "minimum contacts"
between the subsidiary and Texas to justify forcing the subsidiary
to respond to a lawsuit in the Texas courts. Resolution of this
issue relied in turn on a number of factual and legal issues under
agency and contract law. Second, in order for jurisdiction to
lie properly under the Federal Constitution, requiring Disney
to submit to the Texas courts had to comply with "fair play
and substantial justice." While Disney lost the personal
jurisdiction issue in the trial court, the San Antonio Court of
Appeals decided in favor of Disney in an interlocutory appeal,
which I argued. Although plaintiffs filed for certiorari in the
Texas Supreme Court, the court declined to hear the case on jurisdictional
grounds.
Counsel of Record: Co-counsel: Thomas Connop, Thomas F. Loose,
Kirsten Castaneda Locke, Liddell and Sapp (f/k/a Locke Purnell
Rain Harrell) 2200 Ross Avenue Suite 2200 Dallas, TX 78701 (214)
740-8000
Arnulfo Gonzalez 1510 Calle del Norte Suite 14 Laredo, TX 78041
(210) 722-0071
For Plaintiff: Carlos Zaffirini Zaffirini, Castillo & Pellegrin
1407 Washington St Laredo, TX 78040 (956) 724-8355
Courts and Presiding Judges: The Honorable Antonio Zardenetta.
111th Judicial District Court. Webb County, Texas; The Honorable
Catherine Stone, 4th Court of Appeals, District of Texas, San
Antonio; The Honorable Paul W. Green, 4th Court of Appeals, District
of Texas, San Antonio; The Honorable Karen Angelini , 4th Court
of Appeals, District of Texas, San Antonio.
4. Pollner v. Former Directors and Officers of The Lomas Financial
Corporation/Lomas Mortgage USA, Case No. 97-08756-G, (134th Judicial
District, Dallas County, Texas).
I served as lead counsel for The Lomas Financial Corporation/Lomas
Mortgage USA ("Lomas") and over thirty individuals named
as defendants, who ranged from the CEO to an administrative assistant.
In 1997, the Litigation Trustee of The Lomas Financial Corporation/Lomas
Mortgage USA Joint Litigation Trust ("Pollner") filed
a Directors' and Officers' Liability Case against former officers
and directors of Lomas. This case raised issues requiring an extensive
analysis of Delaware corporations law, including the relationship
and duties owed between officers and directors of a corporation
and the corporation. Among other things, the case raised the questions
whether interest swap transactions violated the Delaware "business
judgment rule," and whether the actions of Lomas's officers
and directors supported a finding of corporate waste. It also
raised several issues regarding the proper interpretation of and
application of multiple layers of insurance coverage to the claims
asserted against the defendants. While pursuing the litigation,
the plaintiff utilized separate settlement counsel to pursue settlement
negotiations. In addition to the ongoing litigation, I served
as lead counsel for Lomas in the settlement negotiations. Ultimately
a global settlement was reached prior to trial, after several
mediations and months of negotiations.
Counsel of Record: Co-counsel: C. Michael Moore Locke Liddell
& Sapp, LLP 2200 Ross Avenue, Suite 2200 38 Dallas, TX 78701
(214) 740-8000
For Plaintiff: William A. Brewer, III, James S. Renard, and Michael
J. Collins Bickel & Brewer 4800 Bank One Center 1717 Main
Street Dallas, TX 75201 (214) 653-4000
Court and Presiding Judge: The Honorable Anne Ashby, 134th District
Court, Dallas County, Texas. 5. Westinghouse Electric Corporation
v. Rio Algum Ltd., et al., Case no. 76-C-3830, 1980 WL 1973 (N.D.
Ill. 1980).
I, along with co-counsel, represented Pioneer Nuclear, a subsidiary
of Pioneer Corporation, and a defendant in this case for a five-year
period. Pioneer was engaged in the business of mining, milling,
and selling uranium in the United States. Pioneer Corporation
was a publicly held corporation that was primarily engaged in
oil and gas exploration, development, production, distribution,
and sales. It was the gas public utility for Amarillo, Texas and
a large part of the panhandle of Texas. The primary place of business
of Pioneer Nuclear and Pioneer Corporation was Amarillo. Westinghouse
sued 29 domestic and foreign producers of uranium, including Pioneer
Nuclear. It alleged that the defendants unlawfully combined and
conspired to restrain free competition in the distribution, sale,
and importation of uranium in the Untied States for the purpose
of increasing the market price of uranium, in violation of Section
1 of the Sherman Antitrust Act, 15 U.S.C. §1, and Section
73 of the Wilson Tariff Act, 15 U.S.C. §8.
This complex case, with potential damages approximated at $9
billion, involved nearly every producer of nuclear energy in the
country at that time and defense counsel from across the nation.
A significant issue for Pioneer was whether the United States
District Court for the Northern District of Illinois had personal
jurisdiction over it, raising issues under the Due Process Clause
of the Fourteenth Amendment. Among other issues that were raised
in the course of discovery were activities and conduct that allegedly
constituted Pioneer Nuclear's involvement in the purported unlawful
antitrust conspiracy; activities and conduct of domestic codefendants
and trade organizations; activities and conduct of foreign defendants
in alleged international cartel; as well as an analysis of free
market factors explaining an increase in the price of uranium
and the definition of the relevant market. I engaged in settlement
negotiations on behalf of Pioneer and settled on the basis that
all claims against Pioneer Nuclear were dismissed without it paying
any money or providing any other consideration to Westinghouse.
Counsel of Record: Co-counsel: Andrew Barr Locke Liddell &
Sapp, LLP 2200 Ross Avenue Suite 2200 Dallas, TX 78701 (214) 740-8000
Thomas D. Allen, Edward T. Butt, Jr., Wildman, Harrold, Allen
& Dixon 225 W. Wacker Drive, Suite 3000 Chicago, Illinois
60606 (312) 201-2000
For Plaintiff: Fred H. Bartlit, Jr. (formerly with Kirkland &
Ellis) Bartlit Beck Herman Palenchar & Scott LLP Courthouse
Place, 54 West Hubbard Street Chicago, IL 60610 (312) 494-4400
Michael T. Hannafan (formerly with Kirkland & Ellis) Michael
T. Hannafan & Associates, Ltd. One East Wacker Drive, Suite
1208 Chicago, IL 60601 (312) 527-0055
Lee A. Freeman, Jr. Freeman, Freeman & Salzman, P.C. 401
North Michigan Avenue, Suite 3200 Chicago, IL 60611 (312) 222-5100
Court and Presiding Judge: The Honorable Prentice H. Marshall,
United States District Court for the Northern District of Illinois,
Eastern Division
6. Southwest Securities, Inc. v. SunGard Financial Systems Inc.,
No. 05-98-01216-CV, 2000 WL 1196338 (Tex. App.Dallas, Aug. 23,
2000), and SunGard Data Systems, Inc. v. Southwest Securities
Inc., No. 05-99-00472-CV (Tex. App.Dallas, Oct. 19, 2000).
This matter arose out of several employment agreements and a
contract for commercial services. I represented the defendant,
SunGard Financial Systems ("SunGard"), participating
at the trial, and arguing the appeal.
The case arose after SunGard offered to invest in a brokerage
clearing business to be started by two former employees of Barre
& Co, which had merged into Southwest. Barre had contracted
with SunGard Financial Systems for data services, and had agreed
not to hire any of Barre's employees for two years. When Barre
announced its intention to merge with Southwest, two of its employees
approached SunGard to discuss working for, or providing services
to, SunGard. When SunGard developed plans to invest in their business,
Southwest filed suit. Southwest alleged multiple causes of action
including breach of contract and tortious interference claims,
and sought $20 million in actual damages, as well as punitive
damages, injunctive relief, and fees. Southwest's damages claims
were based in part on the fact that many of its clients would
have left to use the new business in which SunGard would invest.
SunGard counterclaimed, alleging breach of contract and tortious
interference with business relations, among other claims, and
also sought damages and fees. The trial court directed verdicts
for SunGard on all of Southwest's claims except its breach of
contract claim. The jury subsequently found that SunGard had breached
the agreement, but that Southwest had suffered no damages. The
trial court awarded SunGard $46,247 in damages and interest on
its breach of contact counter-claim, and awarded it $1,550,000
in attorney's fees. I, along with co-counsel, argued the appeal.
The appellate court affirmed the district court's judgment in
part, and reversed the district court's directed verdict for SunGard
on Southwest's breach of contract claim, which required reconsideration
of the attorney's fees. After the case was remanded for another
trial on the remaining issues, the parties agreed to a "walk-away"
settlement.
Counsel of Record Co-Counsel: Thomas A. Connop Locke, Liddell,
and Sapp, LLP 2200 Ross Avenue, Suite 2200 Dallas, TX 78701
Matthew J. Siembieda, Joseph T. Smith Blank, Rome LLP One Cogan
Square Philadelphia, PA 19103 (215) 569-5500
Counsel for Plaintiff: Joe B. Harrison and Stuart E. Blaugrund
Gardere & Wynne 1601 Elm Street, Suite 3000 Dallas, Texas
75201 (214) 999-3000
Courts and Presiding Judges: The Honorable Michael O'Neill, 193rd
Judicial District Court, Dallas County; The Honorable Mark Whittington,
5th Court of Appeals, District of Texas, Dallas; The Honorable
Carolyn Wright, 5th Court of Appeals, District of Texas, Dallas;
The Honorable David Bridges, 5th Court of Appeals, District of
Texas, Dallas.
7. Perry v. Stewart Title Co., et al, 756 F.2d 1197 (5th Cir.
1985). I served as co-counsel for Fannie Mae ("FNMA")
in this mortgage-lending case that was tried to a jury and appealed
to the U.S. Court of Appeals for the Fifth Circuit. I
was the lead trial counsel on behalf of FNMA, and argued and
briefed the case in the Fifth Circuit. After purchasing their
home, the plaintiffs discovered that the local utility had an
easement over which the builder had placed the garage and driveway.
The plaintiffs attempted to rescind the contract for the purchase
of the home. The plaintiff asserted more than 70 claims, including
breach of contract, breach of warranty, statutory and common law
fraud, negligence, deceptive trade practices, usury, loan disclosure
violations, truth in lending violations, and unfair debt collection
practices. When FNMA threatened to foreclose on the plaintiffs'
property after they failed to pay the mortgage, the plaintiffs
brought FNMA into the lawsuit as a party-defendant. FNMA removed
the case to Federal court and counterclaimed for the proceeds
of the sale of the property. In addition to requiring a review
of general real property issues such as the relationship of deeds,
easements, and title insurance policies, this case required the
parties to litigate important issues under Federal law, including
several issues of statutory construction. These included whether
the Fair Debt Collection Practices Act ("FDCPA") applies
to the consumer's creditors, FNMA, and mortgage servicing companies
and the proper interpretation of the phrase "debt collector"
as used in the FDCPA. We litigated whether the Truth in Lending
Act applied to FNMA because FNMA was not a creditor of the plaintiff's
at the time a disclosure under the Act was made and whether the
disclosure statements provided to the plaintiffs at the time of
their closing complied with the Truth in Lending Act. Numerous
state law issues were also raised, including requirements for
a purchaser of real property to rescind a land-sale contract;
the calculation of "principal" and "interest"
for purposes of evaluating a claimed violation of Texas usury
laws; the definition of the term "debt collector" as
used in the Texas Debt Collection Act ("TDCA"); and
whether there was a breach of warranty (requiring an analysis
of Texas law regarding the passing of title and related warranties
from purchasers to sellers).
At the end of the trial, the district court granted a directed
verdict in favor of FNMA, while some claims against other defendants
went to the jury. The district court subsequently granted a motion
for a judgment notwithstanding the verdict on other parties' claims.
The Fifth Circuit affirmed the district court's decision on most
claims, except that the district court reversed the directed verdict
on the plaintiffs' claims for violations of the TDCA. The Fifth
Circuit remanded the case for a trial on those TDCA claims. On
rehearing, the Fifth Circuit left the decision of whether FNMA
could recover attorneys' fees to the district court for consideration
on remand, after the TDCA issues were resolved. The matter was
then resolved in a mutually beneficial matter.
Counsel of Record:
Co-counsel: For Federal Nat. Mortg. Ass'n (FNMA) Nathan L. Hecht,
Robert M. Candee Locke, Liddell and Sapp (f/k/a/ Locke, Purnell,
Boren, Laney & Neely) 2200 Ross Avenue Suite 2200 Dallas,
TX 78701 (214) 740-8000
For Federal Nat. Mortg. Ass'n Paul R. Tinsley Morris, McCanne,
Tinsley, Snowden, Ellis & Wilson, Houston, TX
For Stewart Title Co., Stewart Guaranty & D. Walters Charles
E. Fitch, Ben A. Baring Delange, Hudspeth, Pitman & Katz,
Houston, TX
For Greiner, Greiner Const. Co. Thomas B. Green, III Crain, Caton,
James & Womble, Houston, TX Current address unknown
For Friendswood Development Co., and Exxon Co., U.S.A. G. Alan
Kramer and Dale C. Scott Houston, TX Current address unknown
For Hammond Mortg. Corp David C. DuBose Houston, TX Current address
unknown
For Plaintiff: Paul S. Francis Schleider & Francis Houston,
TX Currently: Baker & Hostetler 1000 Louisiana, Suite 2000
Houston, TX 77002-5009 (713) 646-1334
Courts and Presiding Judges: The Honorable Robert O'Connor, Jr.,
United States District Court for the Southern District of Texas;
The Honorable Jerre S. Williams, United States Court of Appeals
for the Fifth Circuit; The Honorable Samuel D. Johnson, United
States Court of Appeals for the Fifth Circuit; The Honorable Charles
Clark United States Court of Appeals for the Fifth Circuit. 8.
Most Reverend Charles V. Graham, his predecessors (including the
Most Reverend Thomas Tschope), and successors, as Bishop of the
Roman Catholic Diocese of Dallas v. Interstate Fire & Casualty
Co.
I was lead counsel for Interstate Fire & Casualty Company
(an excess insurance carrier) in this suit that the Catholic Church
in Dallas filed seeking to obtain indemnification from liability
and defense costs from its insurers. The Catholic Church was seeking
coverage after a jury returned a $101.6 million verdict against
the Church based upon eleven separate incidents of sexual abuse
and child molestation by Father Kos, who had been an active member
of the Diocese of Dallas. (Father Kos was also indicted and convicted
for his acts). The jury had found that Father Kos committed his
acts while acting in the course and scope of his employment. The
jury also found, among other things, the Diocese committed fraud
and intentionally concealed facts relating to Father Kos. Interstate
Fire & Casualty, as well as the other insurers, denied coverage
because Father Kos's actions were intentional acts that were not
covered by the Catholic Church's insurance policies.
There were numerous issues raised in this litigation, including
whether sexual abuse and child molestation are intentional acts
that are not covered by insurance and whether the insurance companies
had a duty to defend the Diocese in the lawsuits filed against
it. The case also involved questions of whether Texas public policy
precluded insurance coverage for acts of sexual abuse and child
molestation. The case settled prior to trial.
Counsel of Record: For Plaintiff: George Bramblett, Jr., Werner
Powers, and Ernest Martin. Haynes & Boone 901 Main St. Suite
3100 Dallas, TX 75202 (214) 651-5574 Court: 134th Judicial District
Court in Dallas County.
9. Lomas Mortgage USA, Inc. and Maria Zacharjasz and Jan Zacharjasz
, Individually and on behalf of all others similarly situated
v. The Lomas and Nettleton Company, Civil Action No. 87-4303,
1988 WL 54066 (E.D. Pa. 1988); (1989) WL 41414 (E.D. Pa. 1989).
I was the lead counsel for The Lomas and Nettleton Company ("Lomas").
In this case, the Federal Trade Commission ("FTC") alleged
that Lomas had engaged in unfair or deceptive acts or practices,
in violation of the Federal Trade Commission Act, by failing to
deliver locked-in rates to potential mortgagors. Separately, private
plaintiffs sought to bring a class action against Lomas and recover
punitive damages, alleging a myriad of claims, involving RICO,
fraud, misprepresentation, negligence, intentional wrongdoing,
breach of fiduciary duty, and breach of an implied covenant of
good faith and fair dealing. Lomas admitted that it had failed
to fulfill many sixty-day lock-in agreements to provide a specified
rate of interest, but contended, among other things, that neither
a class action nor RICO claims were appropriate.
Although Lomas faced significant exposure, the case was settled
after favorable rulings by the Federal district court. The court
found that a class action was appropriate only for potential plaintiffs
within the Commonwealth of Pennsylvania and dismissed the RICO
and express contract claims. The FTC matter was resolved with
a consent decree and a redress program that was acceptable to
Lomas.
Counsel of Record:
Co-counsel: Jerome R. Richter and William Roberts Blank Rome
Cominsky & McCauley One Logan Square Philadelphia, PA 19103
(215) 569-5500
David B. Fawcett, Jr. Dickie McCamey & Chilcote, P. C. Two
PPG Place, Suite 400 Pittsburgh, PA 15222 (412) 281-7272
C. Michael Buxton Vinson & Elkins 1455 Pennsylvania Avenue,
NW Washington, D.C. 20004 (202) 639-6571
For Plaintiff: Harold E. Kohn and Stuart Savett Kohn Savett,
Klein & Graf, P.C. 2400 One Reading Center 1101 Market Street
Philadelphia, PA 19107
For the Federal Trade Commission: Arnold Levin and David Perlman
Levin & Fishbein 320 Walnut Street, Suite 600 Philadelphia,
PA 19106
David Berger and Harold Berger Berger & Montague, P.C. 1622
Locust Street Philadelphia, PA 19103 800-424-6690
Court and Presiding Judge: The Honorable Clarence C. Newcomer,
U.S. District Court for the Eastern District of Pennsylvania.
10. George R. Truitt, Trustee for Hunt International Resources
Corporation v. Manufacturers Hanover Trust Company, et al, (Civ.
Action No. 3-91-13d-D (N.D. Texas).
I served as lead counsel for Manufacturers Hanover Trust Company
("MHTC") and appeared in court for pretrial proceedings.
This case involved a complicated fraudulent transfer arising out
of the Chapter 7 bankruptcy of Hunt International Resources Corporation
("HIRCO"). The Trustee alleged that certain payments
received by "MHTC" on a $37,000,000.00 loan ("Planet
Loan") it made to Planet Investment Company ("Planet"),
the parent company of HIRCO, were constructive fraudulent transfers
under the Bankruptcy Code and/or Texas and Delaware state law.
The proceeds of the Planet Loan allowed Planet to redeem certain
preferred stock of HIRCO and purchase the publicly traded common
stock of HIRCO in a leveraged buyout. Allegedly, the funds were
actually used by Planet to repay a loan extended by Nelson Bunker
Hunt and William Herbert Hunt, the beneficiaries of the trusts
that owned the Planet stock. The HIRCO Trustee alleged that payments
made on the Planet Loan came from funds owned by HIRCO, that HIRCO
received no consideration for the upstream transfers of funds,
and that payments made to MHTC subsequent to September 30, 1981,
were made at a time when HIRCO was insolvent. The post-September
30, 1981 payments totaled in excess of $10.6 million. The HIRCO
Trustee sought the recovery of that sum, plus interest, from MHTC
and certain officers and directors of HIRCO. MHTC contended that
HIRCO had received fair consideration for the transfers, including
approximately $13,000,000.00 from the original Planet Loan proceeds
and cash contributed by Herbert and Bunker Hunt, the release of
approximately 3,000,000 ounces of silver held as collateral for
the Planet Loan, the issuance of standby letters of credit, and
the release of certain affiliate guarantees. Additionally, MHTC
contended that HIRCO was solvent at the time of each transfer.
After approximately four years of contested pre-trial proceedings,
the case was settled on the eve of trial favorably for MHTC. The
various pre-trial issues litigated involved the right to a jury
trial in bankruptcy court under Supreme Court precedent (Granfinanciera,
S.A. v. Nordberg, 109 S.Ct. 2782 (1989)); the appropriate grounds
for withdrawal of the reference of jurisdiction from the bankruptcy
court to the Federal district court; HIRCO's solvency; whether
the contributions of capital to HIRCO by affiliates, releases
of collateral by MHTC, and financial accommodations provided to
HIRCO's affiliates constituted fair consideration under Federal
and state fraudulent conveyance law; judicial estoppel arising
from pleading admissions by a party, alter ego; the appropriate
credit for co-defendant settlements; expert witness qualifications;
and the legal basis, if any, for an award of interest or attorney's
fees in a fraudulent transfer action.
Counsel of Record: Co-Counsel: Thomas A. Connop 2200 Ross Avenue,
Suite 2200 Dallas, TX 78701 (214) 740-8000
Richard Dafoe (for James R. Parish) Vial, Hamilton, Koch &
Knox 1700 Pacific Avenue, Suite 2800 Dallas, TX 75201 (214) 712-4400
Beverly A. Whitley (for Douglas Hunt) Holmes Millard & Duncan
Currently with: Bell Nunnally, & Martin LLP 1400 One McKinney
Plaza 3232 McKinney, Avenue Dallas, TX 75204 (214) 740-1400
J. Alan Gray, (for Ivan Belenberg) 16475 Dallas Parkway One Bent
Tree Tower, #310 Dallas, TX 73248
For Plaintiff: R. Peyton Gibson, Phillip Pierce, Peter Wolfson,
and Carol Neville, attorneys in a succession of New York City
firms known as Milgrim, Thomajan & Lee, Booth, Marcus &
Pierce, and Marcus Montgomery Wolfson & Burten, neither of
the above listed firms still exist.
Courts and Presiding Judges: The Honorable Robert C. McGuire,
United States Bankruptcy Court for the Northern District of Texas,
Dallas Division; the Honorable Joe A. Kendall, United States District
Court for the Northern District of Texas.
17. Constitutional Issues: Please describe in detail any cases
or matters you addressed as an attorney or public official which
involved constitutional questions. For each case or matter, please
describe in detail the constitutional issue you dealt with, the
context in which you dealt with it, and the substance of any positions
you took related to that issue. Please identify and provide copies
of: any briefs you have drafted or filed, transcripts or other
records of any oral arguments you have made, and memoranda, speeches
or other materials you have written relating in any way to such
issues, as well as any other materials that reflect your familiarity
with, views on, or questions regarding such issues.
As Counsel to the President, I am regularly faced with issues
involving constitutional questions. I am called upon to advise
the President and White House officials on presidential prerogatives,
the separation of powers, Executive authority, and the constitutionality
of proposed regulations and statutes.
While in private practice, I handled cases involving constitutional
questions, some of which are described in more detail in response
to questions 15 and 16. I represented Disney Enterprises on several
occasions in litigation brought in Texas that involved issues
of personal jurisdiction, including Disney Enterprises, Inc. v.
Esprit Finance, Inc. In that case, like others in which I represented
Disney, I argued that, under the Due Process Clause of the Fourteenth
Amendment, there were not sufficient "minimum contacts"
between Disney and Texas to justify forcing the company to respond
to a lawsuit in the Texas courts. I have handled many cases involving
issues of personal jurisdiction under the United States Constitution.
For instance, in Westinghouse Electric Corporation v. Rio Algum
Limited, described in detail in response to question 16, a significant
issue was whether the United States District Court for the Northern
District of Illinois had personal jurisdiction over my client,
Pioneer Nuclear, consistent with the Due Process Clause of the
Fourteenth Amendment. We argued that Pioneer had insufficient
contacts with Illinois to be subject to personal jurisdiction
there, the court ultimately disagreed.
Microsoft Corp. v. Manning, described more fully in question
16, involved the interplay between state and Federal class action
laws, and also raised Federal constitutional issues involving
the proper application of the Due Process Clause and the Full
Faith and Credit Clause. On behalf of Microsoft, I argued that
the trial court's class certification violated Microsoft's due
process rights under the state and Federal constitutions and the
Full Faith and Credit Clause of the United States Constitution.
The trial court decertification of the class was in part based
upon the briefing filed on behalf of Microsoft. Thereafter, the
plaintiffs dismissed the case altogether.
I handled one of the only modern cases to address the Habitation
Clause of the Twelfth Amendment, which states: "The Electors
shall meet in their respective states and vote by ballot for President
and Vice-President, one of whom, at least, shall not be an inhabitant
of the same state with themselves." Jones v. Bush, 122 F.
Supp. 2d 713 (N. D. Tex. 2000), relief denied, 244 F.3d 144 (5th
Cir. 2000) (unpublished), cert. denied, 531 U.S. 1062 (2001).
This clause bars a member of the Electoral College from voting
for inhabitants of the elector's state for both President and
Vice-President. I argued on behalf of then-Governor Bush that
the plaintiffs lacked constitutional standing to sue under the
relevant clause of the Twelfth Amendment, and in the alternative
that Mr. Cheney was an inhabitant of Wyoming rather than Texas
within the meaning of the Twelfth Amendment.
In George R. Truitt, Trustee for Hunt International Resources
Corporation v. Manufacturers Hanover Trust Company, described
in detail above, among the issues litigated pre-trial was the
scope of the Seventh Amendment right to a jury trial in suits
at common law as discussed in Granfinanciera, S.A. v. Nordberg,
492 U.S. 33 (1989).
In addition to litigated matters, I represented a media client
for many years. My representation encompassed many First Amendment
issues that were never litigated, including libel. For instance,
I would often consult on prepublication review of articles and
issues related to reporters' sources of information.
While I was an at-large member of the Dallas City Council, I
dealt with issues that involved constitutional questions. For
instance, when addressing a lawsuit under Section 2 of the Voting
Rights Act, the council had to be sure to comply with the proportional
representation requirement of the Equal Protection Clause. Likewise,
everyday city council issues potentially implicate constitutional
rights, including zoning decisions, voting redistricting, eminent
domain, and police activities. As a member of the Texas State
Lottery Commission, I was responsible for overseeing the operations
of one of the nation's largest lotteries. Among the many issues
before the commission were questions arising under the Federal
Indian Gaming Regulatory Act, which implicates tribal sovereign
immunity.
From 1970-1972, I served as law clerk to United States District
Court Judge Joe E. Estes. Judge Estes routinely heard cases implicating
constitutional issues, and I assisted in researching and drafting
opinions and orders.
18. Legal Activities: Describe the most significant legal activities
you have pursued, including significant litigation which did not
progress to trial or legal matters that did not involve litigation.
Describe fully the nature of your participation in these activities.
Please list any client(s) or organization(s) for whom you performed
lobbying activities and describe the lobbying activities you performed
on behalf of such client(s) or organizations(s).
My legal experience is broad ranging, representing individuals
and corporations in cases that cut across areas of local, state,
and Federal law. For example, I have been called to a deathbed
to make sure the individual had a valid, enforceable will; I have
represented parents in contentious custody battles; I have represented
a woman facing deportation to a country where she and her son
would be ostracized; I have represented a well-reputed individual
accused of securities fraud; and I have represented an array of
corporate interests.
In commercial litigation, many matters are resolved by negotiation
prior to suit, settlement before trial or are disposed of by the
court on summary judgment. These results and outcomes are as important
to the clients as jury verdicts. Many of the matters in my practice
have been resolved in this fashion and I have described some in
response to Question 16.
Much of my legal experience dealt with contracts and similar
everyday matters. Sometimes, because of jurisdictional issues,
concepts of due process would loom large. In representing a media
client, I was involved in First Amendment matters concerning libel
allegations, prepublication review, and sourcing issues.
In addition to my practice of law, my experience includes running
and holding public office. As an at-large city councilmember,
I dealt with city issues from supporting the police and firemen
to paving issues. I also was called upon by the Mayor to be the
Council's principal representative in responding to a suit in
which a Dallas Federal judge found that the city had discriminated
in Federally funded housing. Additionally, the city faced a legal
challenge under Section 2 of the Voting Rights Act.
My experience on the City Council helps me understand the interplay
between serving on a policy making board and serving as a judge.
An example, of this distinction can be seen in a vote of the council
to ban flag burning. The Council was free to state its policy
position, we were against flag burning. The Supreme Court's role
was to determine whether our Constitution allows such a ban. The
City Council was anxious to encourage minority and women-owned
businesses, but our processes had to conform to equal protection
requirements, as well.
My City Council service and working in economic development activities
afforded me with special insight into the importance of a stable,
respected, and fair judiciary in which the public can have confidence.
A factor in persuading companies to consider relocation or location
in Texas was the state of our judiciary. Allegations of "justice
for sale" or inflated jury verdicts impaired efforts to attract
employers to our State. Companies making location decisions look
for a fair, balanced court system.
My experience in leadership positions with the Dallas Bar and
the State Bar of Texas is detailed to some extent in articles
I wrote at the time. Lawyer advertising, regulation of lawyers
by the Federal Trade Commission, the importance of pro bono work,
and education about the legal system and the courts were just
some of the topics with which the bar associations were involved.
My work with these professional associations provided me with
valuable experience in dealing with the challenges facing our
justice system. My involvement with the American Bar Association
was similarly valuable. Serving as a member of the Board of the
ABA Journal for six years and then as Chair of the Board provided
me with a wealth of experience with the issues that face the profession
and our courts, such as the importance of an independent judiciary
and proper funding for the judiciary. Likewise, serving on committees
such as the Election Law Committee provided an understanding of
the balance between the appropriate regulation of electioneering
and the protection of free speech as guaranteed in the First Amendment.
In addition to the professional work I have done, I have had
the opportunity to work in the community with a variety of organizations.
That work has included easing the transition for inmates into
the community, helping ensure that young people receive education
about our legal system, working with organizations to assist underprivileged
children, working with Goodwill, and lending my time and efforts
to a number of other charitable organizations.
I have also had the opportunity to serve in the White House in
three separate positions. This experience has given me a thorough
view of how the Executive Branch functions. Likewise, in my current
job, I have had an increased opportunity to work with members
of the Congress in connection with a number of issues, and that
opportunity has given me a greater insight into the role of the
Legislative Branch.
A critical role of my current job is to assist in the formulation
of recommendations for individuals to fill judicial vacancies.
I also participated in such activities as Deputy Chief of Staff.
My work in this area confirmed my view that judges must limit
their role to interpreting and applying the law, leaving policymaking
and legislating to others.
19. Teaching: What courses have you taught? For each course,
state the title, the institution at which you taught the course,
the years in which you taught the course, and describe briefly
the subject matter of the course and the major topics taught.
If you have a syllabus of each course, please provide four (4)
copies to the committee.
I taught trial advocacy at Southern Methodist University School
of Law, and taught National Institution of Trial Advocacy courses
held at SMU during summer upon request. I have been unable to
locate any syllabi. In addition, I have participated in panel
discussions and given talks for continuing legal education.
20. Party to Civil Legal or Administrative Proceedings: State
whether you, or any business of which you are or were an officer
or any partnership, trust or other business entity with which
you are or were involved, have ever been a party or otherwise
involved as a party in any civil, legal or administrative proceedings.
If so, please describe in detail the nature of your participation
in the litigation and the final disposition of the case. Include
all proceedings in which you were a party in interest.
In my individual capacity, I do not recall being a party to any
civil, legal, or administrative proceedings. As is the case with
any major law firm, my firm was a party to a number of law suits
over my thirty years of practice. However, in none of these was
I, or my work, the subject of complaint. In one matter, documents
related to a case on which I worked were sought. That matter was
resolved by mutual consent. (Martin Pollner, et al v. Locke Purnell
Rain Harrell," Cause No. A-98-528). Additionally, I was a
witness in a gender discrimination suit against my firm, Locke,
Purnell, Rain, & Harrell (the name at the time). I also served
from time to time as a witness about attorneys fees claimed in
lawsuits.
In addition, in various roles (such as the Lottery Commission,
Dallas City Council Member, State Bar of Texas President, Dallas
Bar President), I may have been named as a defendant in my official
capacity in civil suits. I have no specific recollection of any
such suits and they would have been handled without my involvement.
I do not have any information about their disposition.
21. Deferred Income/ Future Benefits: List the sources, amounts
and dates of all anticipated receipts from deferred income arrangements,
stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships,
professional services, firm memberships, former employers, clients
or customers. Please describe the arrangements you have made to
be compensated in the future for any financial or business interest.
None.
22. Potential Conflicts of Interest: Explain how you will resolve
any potential conflict of interest, including the procedure you
will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely
to present potential conflicts-of-interest during your initial
service in the position to which you have been nominated. Specifically,
explain how you will resolve any conflicts that may arise by virtue
of your service in the Bush Administration, as George W. Bush's
personal lawyer, or as the lawyer for George W. Bush's Gubernatorial
and Presidential campaigns. In addition, please explain how you
will resolve any conflicts that may arise from your time engaged
in the private practice of law.
I would resolve any potential conflict of interest by abiding
by both the spirit and the letter of the law. I would comply with
the Ethics Reform Act of 1989, 28 U. S. C. Section 455, the Code
of Conduct for United States Judges, and other applicable requirements.
These proscriptions would provide needed direction concerning
the recusals necessary as a result of my government service or
previous representations as a private lawyer.
23. Outside Commitments During Court Service: Do you have any
plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your service with the court?
If so, explain.
No.
24. Sources of Income: List sources and amounts of all income
received during the calendar year preceding your nomination and
for the current calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and other
items exceeding $500 or more (If you prefer to do so, copies of
the financial disclosure report, required by the Ethics in Government
Act of 1978, may be substituted here.)
See attached financial disclosure report.
25. Statement of Net Worth: Please complete the attached financial
net worth statement in detail (add schedules as called for).
See attached statement of net worth.
26. Pro Bono Work: An ethical consideration under Canon 2 of
the American Bar Association's Code of Professional Responsibility
calls for "every lawyer, regardless of professional prominence
or professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
Throughout my career, I have performed pro bono work and encouraged
pro bono work through the bar. In response to questions 15 and
16, I have detailed some of the litigated matters that I have
handled pro bono in the Federal courts, including a habeas petition
and a claim for disability benefits. Other examples include an
immigration matter I handled for a woman and her son facing deportation,
and a range of family matters, including a paternity suit, adoption,
and estate planning. I also spent time attending clinic sessions
and talking to individuals in need of services. In addition to
direct pro bono work, I advocated pro bono service as President
of the Dallas Bar. It was a priority for me during my tenure as
President, and I taped a video on pro bono services for presentation
throughout the city. I also traveled around the State speaking
with Editorial Boards along with the coordinator of Texas Lawyers
Care, our State Bar arm for encouraging and facilitating pro bono
work. I advocated the funding of appropriate legal services for
the poor in our State legislature. I was awarded the Legal Services
Corporation Merrill Hartman Award for my work in Dallas performing
and advocating for pro bono services. At my firm, I encouraged
pro bono work. Our attorneys volunteered to staff free legal clinics
and handled death penalty cases. I also served on the ABA's Consortium
for Delivery of Legal Services, which encouraged pro bono services.
27. Selection Process:
a. Please describe your experience in the entire judicial selection
process, from beginning to end (including the circumstances which
led to your nomination and the interviews in which you participated).
List all interviews or communications you had with anyone in the
Executive Office of the President or the Justice Department regarding
this nomination, or any other judicial nomination for which you
were considered, the dates of such interviews or communications,
and all persons present or participating in such interviews or
communications.
When Justice Sandra Day O'Connor first announced her desire to
retire, I was asked whether my name should be considered. I indicated
at that time that I did not want to be considered. I participated
in all interviews that ultimately resulted in the President's
selection of Judge John Roberts.
When Chief Justice William Rehnquist passed away, I participated
in consideration of potential nominees to fill a second vacancy.
At some point I understand that individuals at the White House
began considering me as a potential nominee without advising me.
During approximately the last two weeks before the announcement
of the intent to nominate, I spoke with Deputy White House Counsel
William Kelley, Chief of Staff Andrew Card, and the President,
and realized that my name was under consideration. I met with
the President four times to discuss the possibility of my nomination:
September 21, 28, 29, and October 2. I had a discussion with the
President on the evening of October 2nd and had dinner with the
President and Mrs. Bush. At that time he offered and I accepted
the nomination. The dinner was arranged by the Chief of Staff.
b. Has anyone involved in the process of selecting you as a judicial
nominee (including, but not limited to anyone in the Executive
Office of the President, the Justice Department, or the Senate
and its staff) ever discussed with you any specific case, legal
issue or question in a manner that could reasonably be interpreted
as seeking any express or implied assurances concerning your position
on such case, issue, or question? If so, please explain fully.
Please identify each communication you had prior to the announcement
of your nomination with anyone in the Executive Office of the
President, the Justice Department or the Senate or its staff referring
or relating to your views on any case, issue or subject that could
come before the Supreme Court of the United States, state who
was present or participated in such communication, and describe
briefly what transpired.
No.
c. Did you make any representations to any individuals or interest
groups as to how you might rule as a Justice if confirmed? Please
describe and provide four (4) copies of all communications by
the Bush Administration or individuals acting on behalf of the
Administration to any individuals or interest groups with respect
to how you would rule if confirmed.
No. 28. Judicial Activism: Please discuss your views on the following
criticism involving "judicial activism."
The role of the Federal judiciary within the Federal government,
and within society, generally, has become the subject of increasing
controversy in recent years. It has become the target of both
popular and academic criticism that alleges that the judicial
branch has usurped many of the prerogatives of other branches
and levels of government.
Some of the characteristics of this "judicial activism"
have been said to include:
a. a tendency by the judiciary toward problem-solution rather
than grievance-resolution; b. a tendency by the judiciary to employ
the individual plaintiff as a vehicle for the imposition of far-reaching
orders extending to broad classes of individuals; c. a tendency
by the judiciary to impose broad, affirmative duties upon governments
and society; 54 d. a tendency by the judiciary toward loosening
jurisdictional requirements such as standing and ripeness; and
e. a tendency by the judiciary to impose itself upon other institutions
in the manner of an administrator with continuing oversight responsibilities.
The role of the judiciary in our system of government is limited.
While its role and its independence are essential to the proper
functioning of our tripartite system of government, the courts
cannot be the solution to society's ills, and the independence
of the courts provides no license for them to be free-wheeling.
And, of course, parties should not be able to establish social
policy through court action, having failed to persuade the legislative
branch or the executive branch of the wisdom and correctness of
their preferred course. Courts are to be arbiters of disputes,
not policy makers. As has been said many times, the role of the
courts is to interpret law and not to make it. My own beliefs
about these issues have been formed over many years, and find
their roots in the beginning of my legal career.
Beginning during my two years as a Federal district court clerk,
I was taught by the judge for whom I clerked, Judge Joe E. Estes,
the importance of Federal courts' keeping to their limited role.
His first task -- and therefore mine in assisting him -- in every
case before him was to examine whether the case was properly in
court. Was there a party with standing? Did subject matter jurisdiction
exist? Was venue proper? These were all questions -- and all related
questions going to whether the court had subject matter jurisdiction
-- that he wanted answered before any others. If the answer was
"no" to any of them, the case was dismissed promptly.
These basic rules of Article III impose a clear responsibility
on courts to maintain their limited role.
"Judicial activism" can result from a court's reaching
beyond its intended jurisdiction to hear disputes that are not
ripe, not brought by a party with standing, not brought in the
proper court, or otherwise not properly before the court because
of the case's subject matter. An additional element of judicial
restraint is to be sure only to decide the case before the court,
and not to reach out to decide unnecessary questions. The courts
have the essential role of acting as the final arbiter of constitutional
meaning, including drawing the appropriate lines between the competing
branches of government. But that role is limited to circumstances
in which the resolution of a contested case or controversy requires
the courts to act.
As I entered private practice, I grew to appreciate even more
the importance of predictability and stability in the law, and
came to believe that those values are best served by a rigorous
and focused approach to the law. For the legal system to be predictable,
the words are vital -- whether they are agreed upon by parties
to a contract or are the product of legislative compromise. Many
times in practice I found myself stressing to clients the importance
of getting the words exactly right if their interests were to
be protected in the future. Legal practice also taught me the
importance of stability in the law. A lawyer must be able to advise
her clients based upon the existing case law. Courts should give
proper consideration to the text as agreed upon, the law as written,
and applicable precedent. Then our system of justice can achieve
appropriate stability, clarity, and predictability. Those values
cannot be effectively pursued unless the law and the facts determine
the outcome of a case, rather than the identity of the judge before
whom a case is brought. Time and again, I saw that principle in
real world cases. The importance of the rule of law, as opposed
to peculiarities of specific judges, was just as critical in small
matters involving individuals as it was big litigation involving
millions of dollars.
"Judicial activism" can occur when a judge ignores
the principles of precedent and stare decisis. Humility and self-restraint
require the judiciary to adhere to its limited role and recognize
that where applicable precedent exists, courts are not free to
ignore it. Mere disagreement with a result is insufficient to
justify ignoring applicable precedent, but reconsideration under
appropriate circumstances is also necessary. There are clear examples,
like Brown v. Board of Education, where revisiting precedent is
not only right, it is prudent. Any decision to revisit a precedent
should follow only the most careful consideration of the factors
that courts have deemed relevant to that question. Thus, whether
the prior decision is wrong is only the beginning of the inquiry.
The court must also consider other factors, such as whether the
prior decision has proven unworkable, whether developments in
the law have undermined the precedent, and whether legitimate
reliance interests militate against overruling.
As my career progressed, I became an elected official charged
with legislative power. In that role, I was able fully to appreciate
the difference between the role of those who are to make the law
and those who are to interpret it. On the Dallas City Council,
we dealt frequently with the legal issues facing the City, and
with the legal and constitutional implications of our actions.
We set policy for the City by, among other devices, passing ordinances.
We understood our role, and we expected the courts to understand
theirs -- part of which was to respect the policy-making prerogatives
of the City Council. There was a vast difference between our vote
as a policy matter to prevent the desecration of the American
flag, and the job of the courts (including the Supreme Court)
to rule whether such an ordinance was constitutional.
Finally, my time serving in the White House, particularly as
Counsel to the President, has given me a fuller appreciation of
the role of the separation of powers in maintaining our constitutional
system. In that role, I have frequently dealt with matters concerning
the nature and role of the Executive Power. And by necessity my
work has required that I deal with the power of Congress in relation
to the Executive. The remaining, and essential, component in our
system is of course the power of the Judiciary. The Judicial Branch
has its own role to play in the separation of powers. It is part
of the system of checks and balances. In interpreting the law
in the course of deciding contested cases and controversies, the
Supreme Court holds the Executive and Legislative Branches to
their respective constitutional roles.
Judicial review by the Supreme Court, including determining the
meaning of the Constitution and declaring unconstitutional the
actions of another branch of government, is a tremendous power
exercised by judges who are not accountable to the electorate.
Because their power is so great, and because it is largely unchecked,
judges must be vigilant in exercising their power in a humble,
prudent, and limited way. The courts must always be ready to decide
cases according to the Constitution and laws of the United States,
and to do so fairly and without regard to the wealth or power
of the litigants before them. But it is just as important for
the courts to stand ready not to decide in instances that do not
call for a decision.
My experience working for Judge Estes provided another valuable
lesson. He decided every case according to the law and facts,
and he did not worry about the potential for a negative reaction
to his decisions. He felt no pressure to please anyone. His only
lodestar was the law. The example of Judge Estes helped to instill
in me an appreciation for the importance of judicial independence
that has only grown stronger over time. Criticism of courts that
overstep their role is justified. We must zealously guard, however,
the independence of the courts. While legitimate criticism of
judicial activism is healthy, even essential, we must be wary
of unduly criticizing judges merely because we disagree with the
result in a particular case. Judges are given life tenure and
independence to shield them from the potential tyranny of the
majority. While life tenure and independence should not be a license
to usurp the rule of law in favor of a rule of man, they provide
an essential structural protection to ensure that judges are able
to make decisions based only on the fundamental vision of the
Founders -- the rule of law.
-- Source: Senate Judiciary Committee
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