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MORE ON MIERS FIRM TAX SHELTER

October 10, 2005

Stephen Bainbridge, the sinister-looking UCLA law professor, doesn't think the CDS tax shelter opinions written by Supreme Court nominee Harriet Miers's law firm should affect her nomination:

Personally, I think this should be a non-issue, even though it seems to be picking up some steam in the blawgosphere. As one of my tax colleagues emailed me to explain:

Although she clearly should have known about this as co-managing partner (billings of $50,000 a pop for 70 opinions is likely to get your attention), it is probably a red herring. Lots of firms were involved in these shelters, including another Dallas firm, Jenkens and Gilchrist, and they don't necessarily disqualify her as a justice as long as she didn't participate in the drafting of the opinions (which were pathetic as a legal matter by the reports of them - evidencing mediocre to bad lawyering, let alone ethics etc). Nevertheless, it is the kind of red herring issue that politicians like to jump on when they want some way to oppose a candidate or get a candidate to withdraw without stating the real objection, which might sound too elitist, too ends-oriented on a particular issue, etc. Kind of like a nanny-gate issue.

"Kind of like a nanny-gate issue." Kimba Wood might have some thoughts about whether a "nanny-gate issue" can be important.

Considering what has happened to Jenkins and Gilchrist, it's surprising that the correspondent discounts the importance of the issue.

Whether or not it should matter, it is likely to. Her role as co-managing partner of her firm is an important credential on a resume lacking any experience as a judge. These lucrative but dodgy tax shelter opinions happened on her watch, and they could tarnish her tenure as co-managing partner. If that doesn't count in her favor, there might not be enough left on her resume to get 50 Senate votes.

Prior Tax Update coverage here.

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