Harriet Miers and MS-DOS

The Supreme Court nominee helped defend Microsoft against consumer lawsuits.

The news may come about four years too late for Microsoft Chairman Bill Gates. But one of his former attorneys was nominated Monday, Oct. 3, by President Bush for a seat on the U.S. Supreme Court—the court that in 2001 refused to hear Gates' appeal regarding Microsoft's violation of antitrust laws. Theoretically, the selection of Harriet Miers, who has represented Microsoft in consumer lawsuits, sort of re-balances the high court's scales for the Redmond software giant: John G. Roberts, sworn in as chief justice Monday, Oct. 3, was once among the government attorneys who successfully opposed Miers' client in another case, the landmark Microsoft antitrust action.

Miers, 60, a Texas lawyer who has represented Microsoft, Disney, and Seattle-based RealNetworks, and who would replace retiring Justice Sandra Day O'Connor, has no experience as a judge. As Bush's White House counsel and former personal attorney, as well as former co–managing partner of Locke Liddell & Sapp, a Texas firm with more than 400 lawyers, she appears to have dwelled in a stratosphere of corporate law and politics. Nonetheless, "She has devoted her life to the rule of law and the cause of justice," Bush insisted in nominating the woman who, as his personal lawyer, helped him finesse questions over his military service.

Other Republicans agreed. "With this selection, the president has chosen another outstanding nominee to sit on our nation's highest court," said Senate Majority Leader Bill Frist, R-Tenn., who is being investigated by the Securities and Exchange Commission for insider trading. Rep. Tom DeLay, R-Texas, the deposed House majority leader who is under indictment for campaign money laundering involving corporate donations, is also said to be pleased. There was no word from Karl Rove, Bush's chief political adviser, or I. Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, to whom, as a White House lawyer, Miers could have offered legal advice in the CIA/Valerie Plame leak investigation—which, The Washington Post reports, could result in criminal conspiracy charges against senior White House officials.

For Microsoft, Miers led a cadre of attorneys to stave off legal claims in the 1990s from consumers who claimed the company's early MS-DOS operating system was flawed. According to her Dallas firm, Miers wrote a persuasive 1995 brief that led to a reversal of an earlier ruling and ultimately to rejection of the plaintiffs' bid for class-action status. The case was subsequently dismissed. In a RealNetworks case, which involved Microsoft and Broadcast.com, Miers and other attorneys won a 1998 summary judgment for the tech giants in a patent infringement lawsuit.

Once head of the Texas state lottery under then–Gov. Bush, Miers' Microsoft connections caught the eye of political observers early on. In a 2001 story in The Guardian of London, journalist Greg Palast, who wrote extensively about the controversies of the 2000 presidential election, asked: "So who was the real winner of the presidential contest? Some might say Bill Gates. One of Dubya's first appointments was of the key Secretary for White House Matters: attorney Harriet Miers. . . . 'Harriet was always flying to Seattle,' says Lawrence Littwin, the Texas Lottery director Miers fired in 1997. That's no surprise, as her law firm represented Gates at the time. Miers will, of course, have to give up her interest in the law practice while working for the White House. Some wonder whether Bush, as President, will continue the Justice Department's push to break up Microsoft. . . . " For the record, he did not.

Miers is a onetime conservative Democrat who, as White House counsel, twice interviewed then-nominee Roberts, and now she could take the bench with him—to the concern of more than just some Democrats. Socially conservative Republicans are questioning her ideological credentials. And David Frum, in his conservative National Review Online column, praises Miers as "a capable lawyer, a hard worker, and a kind and generous person. She would be a reasonable choice for a generalist attorney, which is indeed how George W. Bush first met her. She would make an excellent trial judge: She is a careful and fair-minded listener. But U.S. Supreme Court? In the White House that [has] hero-worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met."


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