Bush Supreme Court Nominee Former Microsoft Lawyer

DaveM writes "Bush's most recent Supreme Court nominee, Harriet Miers, successfully argued that people who were sold defective software by Microsoft weren't "injured," and couldn't participate in a class action against the company. The case involved unstable compression features in MS DOS 6.0, which were corrected by a $9.95 update, MS DOS 6.2. Plaintiffs wanted Microsoft to offer the updates for free, but eventually lost to Miers' arguments."

Re:What do you expect?

[GreyPoopon]

What was she supposed to argue? "My client is guilty."?

And more importantly, if you read through other news articles about her, you'll see that many of her arguments are highly based on logic. In the mentioned Microsoft case, her argument was against the "class" that was chosen for the lawsuit. The plaintiffs chose everyone who bought DOS 6.0 as for the class, arguing that they had been harmed and shouldn't have to pay $10 for an upgrade. However, not everybody who bought the product was using, or intended to use the compression features, so it was difficult to justify including all of them in the class. Therefore, the class was decertified. The suit was dismissed and dropped because the lawyer representing the plaintiffs didn't want to bother with actually getting a more reasonable class determined for the suit.

Re:Well...

[SimilarityEngine]

Mucked up the link... here it is [wikipedia.org] ... sorry.

Re:Wrong process anyway

[Anonymous Coward]

The Founding Fathers set it up this way so there were checks and balances. The President submits a candidate and it's up to the Senate to approve them or not. All candidates do NOT get approved. Some give up without a vote.

It's obvious the question is from an anti-Bush person. What exactly would you suggest? Have the Senate appoint them? Well, there would be no checks and balances that way and since the Senate is currently in Republican hands, for the most part VERY CONSERVATIVE Republican hands, I have a gut feeling that if the Senate appointed someone you probably would like that person even less. I have a feeling that if there was a Democratic president then you wouldn't have a problem with the process. Besides, you never really know what the judges will do anyway. I doubt that the first President Bush had any idea that David Souter would turn out the way he did on the court and I'm sure if he could go back in time he would not have nominated him.

Re:Key phrase

[Speare]

I'll entertain your idiocy for a moment. If the original equipment stereo killed your child thanks to an electrical problem, instead of a brake failure, this would make the analogy so much clearer? Any tangible product with known dangerous problems should be recalled, repaired, replaced or refunded, whether it has actually caused each owner damage or not. Why is this different for software?

Re:oh god

[ari_j]

Why is lack of judicial experience (or, for that matter, whatever measure you use to determine a person's "constitutional scholarship") a reason to criticize her? I can think of at [wikipedia.org] least [wikipedia.org] a few [wikipedia.org] prior examples of this working out.

There are plenty of valid criticisms of Miers, but that's no more one of them than is her work as an attorney for Microsoft.

Re:I Was Injured

[John Courtland]

I think it was called DriveSpace (DRVSPACE.EXE) and was a memory hog. I think it ate something like 30-40K of low mem. I don't even think you could put it into the UMB (I am possibly wrong on this as I didn't do too much experimenting with it, but without a lot of playing I couldn't get it up there), so it was a real waste of very valuable resources.

Re:Wrong process anyway

[ari_j]

Thanks for the laugh about Wikipedia writing down your constitution for you. In US law, we have the American Law Institute writing down "restatements" of the law, which typically just restate the common law (although they sometimes try to innovate a bit by writing down what the law should be, those bastards) - such as the Restatement of Torts or the Restatement of Contracts. Wikipedia is becoming the Restatement of the English Constitution, eh? ;)

Re:Capitalism

[lgw]

Fascism is not government by corporation. That's a translation/cultural mistake. Mercantilism is government by business interest, historically to the extent of going to war to protect your foriegn markets from regulation by their own governments. If you're worried about the current trend continuing unchecked (a silly thin to worry about IMO), that's where we're heading. The Wikipedia article [slashdot.org] discusses hte economic theory, but like communism it's really both political and economic in practice. The modern version is based on control of cheap labor, not bullion, as economic understanding has matured (but is still pretty silly).

Re:What do you expect?

[tomhudson]

and if you aren't using and have no intention of using an optional feature then you are not harmed directly, only potentially harmed.

Guess you weren't around during the DOS 6 marketing campaign. It wasn't a marginal feature - it was the #1 reason people were buying DOS 6. Hard disk space was measured in megabytes, not gigabytes. An 80 gig hd cost $400 back then. You couldn't even buy a 1-gig hd.

So, when the highly-promoted "look you can double your disk space with our latest and greatest" DOS 6 turns ut not to be able to do what it says, and people are told NOT to use that feature because it corrupts their data, if they take those precautions, they haven't been harmed? They were ripped off! And being charged for the fix was bullshit.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Maybe she'll help out when they impeach Bush

[kyouteki]

I'm sorry, what is irritating?

(from der Wikipedia [wikipedia.org], emphasis mine) Impeachment is the process by which a legislative body formally levels charges against a high official of government. Impeachment does not necessarily mean removal from office; it comprises only a formal statement of charges, akin to an indictment in criminal law, and thus is only the first step towards possible removal.

Clinton was actually impeached due to the fact that there were impeachment hearings.

Re:What do you expect?

[Anonymous Coward]

Depends on the circumstances. In a simplified way:

If MS hired your firm and the partners tell you to take the case, you probably should if you want to have healthy employment with them.

If the firm was kept on retainer before the case existed, for the most part the firm is contractually obligated to do work for their client.

If she was a partner and they all decided to take the case it might be partially her fault. However, enough of the firm wanted the case to allow it.

If she is the only one making decisions for the firm and decided to take the case, then yes, "she chose to take the case."

However, the case is more complicated than should MS upgrade people for free. The prosecution argued *everyone* who bought MS-DOS 6.00 should get a free upgrade. The defence argued only people who were *affected* with data loss should get free upgrades. The prosecution wanted a more general ruling than what was considered fair so they got nothing.

It wasn't exactly MS sticking it to everyone and saying, "Fuck you." Most people didn't use DoubleSpace and most people who did suffered no data loss.

For the record, I am not a fan of MS or Bush, but I tire of *everything* associated with them being bashed to hell.

Re:oh god

[ari_j]

Thank you, Findlaw. :) Here is a list of Supreme Court justices with no prior judicial experience [findlaw.com].

Re:Maybe she'll help out when they impeach Bush

[jnaujok]

Because Bill Clinton was being sued for sexual harrassment. He had elicited sex in return for job favors. During the course of this trial, he was called to testify. Part of that testimony was to establish his history as a sexual predator and serial harrasser. During that testimony, the prosecuting attourney brought up "Jane Doe #4", an un-named (at the time) intern in the White House. He specifically asked if Mr. Clinton had had sexual encounters with this intern. He denied everything.

Largely on the basis of this denial, the jury found him not guilty. The plantiff, who had been sexually harrassed, lost any hope for recompense in the case.

However, Clinton lied. Jane Doe #4 was Monica Lewinsky. When the evidence that he *had* been seeing Lewinsky arose, he was revealed to have perjured himself before the court, thus denying the plaintiff her civil rights. When he was called before congress to explain himself as part of the initial investigation, he *again* perjured himself. That's lying to congress. If you or I do that, we go to jail for 10 years.

Remember that the only article of impeachment ever drawn up against Nixon (largely by a young law clerk named Hillary Rodham [yes, *that* Hillary Rodham Clinton]) was for "lying to the American people". In other words, Nixon was to be impeached, not for lying under oath, not for compounding that perjury with another perjury, but for telling an untruth on national television. Remember the finger wagging, "I did not have sexual relations with that woman, Miss Lewinsky"?

The house felt that there was sufficient evidence for a "trial" in the senate and forwarded two articles of impeachment. The Senate rules require a super-majority to remove the president from office, a lucky thing, since 55 senators voted to remove him. In other words, the majority found him guilty of lying.

The Arkansas state Bar has since revoked his law license and his ability to practice law. He was found guilty of perjuring himself before the bench and was summarily judged and had to pay the original plaintiff some $900,000 in a settlement.

That's why he was impeached. Live it, learn it, love it.

Re:Maybe she'll help out when they impeach Bush

[illumina+us]

"Against All Enemies" by Richard A. Clarke. Please read that book. You'll see how badly Bush wanted to go into Iraq IMMEDIATELY after 9/11.

Re:Nice flaming headline.

[Whafro]

Many top-tier firms, including the one for which I am currently employed, require all associates to perform a percentage of billable hours on a pro-bono basis. In my case, it is at least sixty hours per attorney per year, or three percent of billable hours. That is approximately equal to a week's work.

Re:Well...

[Martin Blank]

You're right, she was never a judge. As far as I can tell, neither were:

• William Rehnquist
  
• Lewis Powell
  
• Abe Fortas
  
• Arthur Goldberg
  
• Byron White
  
• Earl Warren
  
• Tom Clark
  
• Harold Burton
  
• Robert Jackson
  
• James Byrnes
  
• Frank Murphy
  
• William Douglas
  
• Felix Frankfurter
  
• Stanley Reed (who also did not have a law degree)
  
• Hugo Black
  
• Owen Roberts
  
• Harlan Stone
  
• Pierce Butler
  
• George Sutherland
  
• Louis Brandeis
  
• James McReynolds
  
• Joseph Lamar
  
• Charles Evans Hughes
  
• William Moody

That's just for those appointed in the 20th century. Note that this is not authoritative, as I couldn't find a solid list of those without prior judicial experience, so I ended up going through two biography sites to determine them. Nevertheless, I think it's at least fairly accurate, and shows that of the 52 justices appointed in those hundred years, nearly half had no prior judicial experience. Many, if not most, of them also never argued in front of the Supreme Court.

Now, whether there are questions to be raised on other points is another issue. Most, if not all, of the above-listed justices had some public record to turn to in order to see where they leaned. Those that did not serve in elected office or in appointed government positions (cabinet secretaries, SEC, etc) had other roles that left significant paper trails. At this point, I'm quite skeptical of the qualifications which Ms. Miers brings to the nomination, and probably would have been more comfortable with a nomination from the courts or Congress, but I'm willing to wait and see.

Re:Indictments at the Gates

[cioxx]

You do know that she was a registered Democrat when she tried that case, right?

You know who else is a registered Democrat?

That's right. Zell "Liberalism is a disease" Miller.

Don't read too deep into party affiliation. Many Southern Democrats only share the "D" with their progressive counterparts in the Northeast and along the coasts, and not much else.

Re:What do you expect?

[tomhudson]

Breast implants aren't damaging. Their PRESENCE isn't damaging. Look it up, and you'll see that this claim

"Since they are unsafe"

ia a lie.

Really? So, when the courts ruled that the urethane foam coating on the "Meme" silicone breast implant was found to be unsafe in and of itself, and it was pulled from the market, that doesn't count? Or when excess pressure had to be used to counteract capsular contracture because of the presence of the UNDAMAGED, NOT LEAKING breast implant, which then went on to damage the implant, leaking silicone into the body, that wasn't a problem?

So, since you can't even get your facts straight, tell me again why anyone should take you seriously?

Fact: from the FDA Enforcement Report: http://www.fda.gov/bbs/topics/ENFORCE/ENF00104.htm l [fda.gov]

Product:
Silicone gel filled breast implants, for use in breast
augmentation, breast reconstruction, and correction
of congenital malformation:

(a) Optimam (polyurethane foam covered);
(b) Meme (polyurethane foam covered);
(c) Vogue (polyurethane foam covered);
(d) Replicon (polyurethane foam covered);
(e) Meme Moderate Profile (polyurethane foam covered);
(f) Natural Y (polyurethane foam covered);
(g) Custom Polyurethane Covered Implants;
(h) Standard Bilumen;
(i) Standard Gel;
(j) Standard Gel/Saline;
(k) Standard Adjustable Reconstructive;
(l) Standard Teardrop Gel (GB Snyder);
(m) Georgaide;
(n) Perras-Papillon;
(o) Special Fills SCL or Standard;
(p) Products larger than 600 cubic centimeters.

Recall #Z-1109/1124-1.

Code:
All lot numbers/control numbers and catalog numbers of
the above 14 models.

Manufacturer:
Surgitek Mec, Paso Robles, California and Surgitek
Mec, Racine, Wisconsin.

Recalled by:
Surgitek Mec, Paso Robles, California, by letter
dated July 9, 1991. Firm-initiated recall ongoing.

Distribution:
Nationwide and international.

Quantity:
Unknown.

Reason:
These silicone gel-filled breast prostheses (SGFBP) were
on the market after July 9, 1991, without a premarket
approval application (PMA), as required by the final rule
of April 10, 1991, pursuant to Section 515(b) of the FD&C
Act.

Of course, next you'll be saying that there are no concerns about tobacco, either.

Re: Lack of experience

[markhb]

The lack of bench experience has been well-discussed in the traditional media since yesterday. In coming to the Court without such experience, she would follow a path well-traveled by such men as:

• Byron White [wikipedia.org]
  
• CJ Earl Warren [wikipedia.org]
  
• William O. Douglas (the longest-serving Justice in SCOTUS history)
  
• Louis Brandeis [wikipedia.org]
  
• CJ John Marshall [wikipedia.org]
  

... and, of course,

• William Rehnquist [wikipedia.org] (who was appointed as an Associate Justice by Nixon before elevation to CJ).
  

... So, of course, she must be immediately disqualified.

Re:Indictments at the Gates

[Captain Sarcastic]

Sometimes party registration is a local thing.

Consider Kansas. It's a primarily Republican state. Outside of a few counties, almost all of the state offices go to members of the Republican party.

This usually means that, during primary season, the Democrats try to find someone that is willing to fight a battle where they are most likely out-recognized and out-spent by the existing Republican contender, unless the Republican has done something egregious. It's extremely rare for the Democrats to run more than one person for a seat during the primaries.

In Kansas (and in other states), the Republican primaries are closed primaries - the only people who can vote in them are party members (the Democrat primaries are open to anyone not voting Republican). As a result, some people who see no other way to get their voice heard become "paper Republicans." This lets them have some say in who is running in November, and can at least try to trim off some of the extremists at the primary level.

And sometimes it even works...

Re:Maybe she'll help out when they impeach Bush

[DavidTC]

No, the 'majority' didn't find him guilty of lying, and that's just gibberish. The majority voted that he was guilty of lying. Only a supermajority of the senate can find him guilty.

There was sufficient evidence to take him to court on the charge, and because he was the president his 'court' looked rather different than everyone else's. (And actually required a vote to get him into it, instead of the DA just filing charges.)

However going to court doesn't make you guilty, and seven out of twelve jurors voting to convict you when the law requires nine doesn't make you guilty either.

Which seems to be something everyone's ignoring. Clinton, according to the legal process in place to try presidents, did not commit prejury. He was found not guilty.

Now, the same charge has been leveled against him by a private organization, the Arkansas Bar, and they have revoked their permission to practice law on those ground. However, the Arkansas Bar is not the legal system, and cannot find people guilty or innocent, even if it can fine its members under the rules they agreed to when they joined.

Re:You know, here's a news flash...

[ifwm]

"Did she defend poor people"

Why yes, as a matter of fact she did. She did pro bono work for Catholic Charities. I am assuming that it involved "poor people" as you so elegantly put it.

Personally, I prefer my Judges have a well rounded idea of the Law, rather than some idealistic fantasy.

"I think it matters for example if you choose to defend Microsoft or you choose to represent the people that use Microsoft products"

Well, since she was an EMPLOYEE at a firm that represented MS, I think it doesn't matter one iota. YMMV.

Now, if this was HER firm, founded and operated by HER, you might have a point.

And once again the mods give out a +5 insightful to a post with no real insight at all.

Re:You know, here's a news flash...

[dAzED1]

why yes...yes, I can.

There have now been 108 Justices in the history of the US. Of those, 44 had no prior judicial experience. That's a healthy 41%.

In fact, the 2 of the last 3 Justices that were appointed, prior to Roberts, had no previous judicial experience. Those would be Clarence Thomas (Reagan appointee, 1991), and Steven Breyer (Clinton appointee, 1994).

Kennedy appointed Justices Byron White and Arthur Goldberg, neither of which had any prior experience. I mention them because Kennedy could do no wrong, supposedly.

Not only did 44 have no prior experience, many had only limited experience- Justices John Harlan and John Marshall had only 1 year prior experience. Justice Justice Hugo Black had only 1.5 years prior experience.

Shall I go on, or have I sufficiently proven my point...

Re:Indictments at the Gates

[epgandalf]

It does work sometimes in Kansas. The governor, Kathleen Sebelius, is a Democrat. She was elected in a heavily Republican state (~60% Bush) because the Republicans nominated an extremist. Moderate Republicans elected her because they don't want someone who will try to ban all abortion and teach Creationism in schools. . .

this whole microsoft...

[KillShill]

thing is a red herring.

it has nothing to do with software.

she's the person who helped wipe bush's national guard records.

it's called cronyism. just about everyone in the current administration is there because of donating to the GOP or is a close friend of the bushs.

http://www.counterpunch.org/frank10042005.html [counterpunch.org]

http://www.huffingtonpost.com/david-sirota/miers-l ed-law-firm-repeat_b_8277.html [huffingtonpost.com]

http://www.globalnewsmatrix.com/modules.php?name=N ews&file=article&sid=2835 [globalnewsmatrix.com]

http://www.pnionline.com/dnblog/attytood/archives/ 002383.html [pnionline.com]

just some interesting links.

Re:You know, here's a news flash...

[j-joshers]

Rehnquist also clerked for Justice Jackson, and was assistant Attorney General for Nixon. In other words, he did plenty of work that forced him to grapple with the subtleties and workings of the Constitution and the Supreme Court's relationship with it. This is similar to Earl Warren, who was California Attorney General, Regent of the UC, *and* Governor of California. Ms. Miers graduated from a 2nd rate law school and has done work as a private lawyer and as the Texas Lottery Commissioner. I dont know how running the lottery turns you into a Constitutional Scholar, and neither does anyone else. She's not nearly as qualified as Rehnquist, Warren, et. al, and anyone who says "well Renquist wasn't a judge either" is leaving out all the details that matter.

Re:You know, here's a news flash...

[killjoe]

"Is it not considered "moral" to give a defendant the full consideration of the law? Is it not moral to perform your job to the best of your ability? Is it not moral to uphold the Constitution, despite the fact that you may dislike who the Constitution favors in this particular instance?"

As an attorney you can make choices about who you represent. You can make choices about the law firm you work for. YOu can make choices about which cases to take.

"I would find it very hard to call someone moral who abandons their responsibilities because of personal differences. I would call that person petty and childish, and ask them why they had bothered to enter into law in the first place."

It is not the personal responsiblity of lawyers to defend anybody who comes to them and pays them. What kind of fucked up church did you attend that told you that? Are your parents that fucking stupid that they taught you that? Where did you get such a stupid moral learning from?

A lawyer can choose not to defend anybody.