Searching Miers’ writings for First Amendment clues

Wednesday, October 12, 2005

WASHINGTON — In 1993, while the Harvard Law School faculty was beset with political divisions, the president of the State Bar of Texas weighed in with a scolding column urging civility and better communications.

“Lawyers are about seeking the truth, preserving a system to achieve fairness and justice, and protecting the freedom of individuals against the tyranny of the majority view,” wrote Harriet Miers in the Texas Bar Journal.

Now that Miers is the latest nominee for the U.S. Supreme Court, that column and her small number of other writings are being scrutinized for clues to her views on constitutional issues large and small.

The column on Harvard did not turn into a full-throated defense of First Amendment freedom of speech — Harvard is a private institution, after all — or a critique of political correctness. But it stands as one of several hints that she values dialogue, communication and protection of unpopular views — building blocks of a favorable First Amendment outlook.

The most extensive look at Miers’ First Amendment views and activities so far comes in a report by the Reporters Committee for Freedom of the Press, which routinely studies nominees’ views on press issues.

Reporters Committee Executive Director Lucy Dalglish says that while Miers’ First Amendment record is thin, it has a bright spot: As a private practitioner Miers has defended journalists and newspapers facing subpoenas and other legal challenges. Her firm Locke Liddell & Sapp had a longstanding relationship with the Dallas Morning News. Ralph Langer, retired Morning News executive editor, recalls working mainly with other lawyers at the firm, but the Reporters Committee quotes him as saying he believes that Miers has a commitment to First Amendment issues.

A columnist at the newspaper also recalled that while Miers was a member of the Dallas City Council, she was accessible to reporters and went out of her way to be sure they had information needed to report on issues of concern to her. “She’d always respond and was very open to the press,” said James Ragland.

Paul Watler, a lawyer who worked with Miers at Locke Liddell, also said Miers “gets” press-freedom issues and understands how journalists view the issues.

When Miers became active in the American Bar Association, she became familiar with press-freedom issues in another way. She served for nine years on the editorial board of the ABA Journal, part of the time with former independent counsel Kenneth Starr. The magazine has struggled intermittently to preserve its journalistic independence from the ABA itself.

Gary Hengstler, who was publisher of the magazine at the time, said Miers consistently worked to keep the magazine independent. “I’m a big fan of hers,” Hengstler said. He told the Reporters Committee, “She took a lot of heat for the kinds of stories we were doing,” he said. “She never once said, ‘Change this’ or ‘Don’t write that.’”

The Media Coalition has also reported on Miers’ views, highlighting another article by her, this one published in the Texas Lawyer newspaper after a shooting rampage at a Fort Worth courthouse. She used the occasion to remind readers of the importance of constitutional freedoms, including the First and Second Amendments.

“The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts,” Miers wrote. “Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.”

Less is known about Miers’ views on the religion clauses of the First Amendment. Americans United for Separation of Church and State, which opposed the nomination of John Roberts Jr. as chief justice, has not yet taken a stand on Miers, instead urging the Senate to question her on church-state issues.