M. Miller Baker is a partner in the law firm of McDermott Will & Emery LLP based in the Firm’s Washington, D.C. office. Miller co-heads the Firm’s Appellate Practice group, which was recently nationally rated by Chambers USA. He focuses his practice on appellate and constitutional litigation.
Miller has received national recognition for litigation success. Chambers USA 2009 nationally rated him among the nation’s leading appellate lawyers. Benchmark Litigation 2009 ranked Miller as a national litigation “star,” and on May 7, 2009, the Am Law Litigation Daily named Miller as “Litigator of the Week” for his U.S. Supreme Court win in Arthur Andersen LLP v. Carlisle. In 2008, the National Law Journal included Miller’s U.S. Supreme Court win in Beck v. PACE International Union on its 2008 “Appellate Hot List.”
As an appellate lawyer, Miller has represented or advised clients in more than 50 appeals in federal and state courts involving a broad range of matters, including constitutional law, state and federal tax, ERISA, patent, copyright, federal arbitration act, state and federal election law, class actions, administrative law, preemption, federal practice and jurisdiction, antitrust, securities, bankruptcy, and insurance coverage. Miller has argued before the U.S. Supreme Court as well as before the U.S. Courts of Appeals for the Second, Fourth, Fifth, Sixth, Seventh, Ninth, and Federal Circuits, and state appellate courts in Maryland and New York. Miller has also appeared in the U.S. Courts of Appeals for the Third, Tenth, Eleventh, and District of Columbia Circuits, and state appellate courts in Virginia, Louisiana, and Texas.
Previously, Miller served as counsel to Senator Orrin G. Hatch, the then-ranking Republican member on the U.S. Senate Judiciary Subcommittee on Patents, Trademarks, and Copyrights (1991-1992) and later on the full Judiciary Committee (1993). As counsel to Senator Hatch, Miller took a lead role in the confirmation hearings for Justices Clarence Thomas and Ruth Bader Ginsburg. During the final two years of the Reagan Administration (1986-1988) and immediately following his judicial clerkships, Miller served in the Justice Department, first as an Attorney-Advisor in the Office of Legal Policy and later as Special Assistant to the Assistant Attorney General for Civil Rights. While in government, Miller also served as an intelligence officer in the U.S. Naval Reserve.
Miller has appeared on CNN’s Inside Politics, Burden of Proof and Talk Back Live, NPR’s Morning Edition and the Diane Rehm Show, Fox News, and numerous other radio and television news shows around the country in connection with constitutional matters. Since 9/11, Miller has testified on three occasions before the House and Senate Judiciary Committees on issues pertaining to continuity of government, particularly presidential succession. Fifty-four years after the enactment of the Presidential Succession Act of 1947, Miller was the first legal scholar to spot what the Washington Post characterized as a critical defect in that law’s mechanism for presidential succession: the ability of a handful of surviving members of Congress under the House rules to choose a new House Speaker, who in turn could claim the Presidency from a cabinet member (such as the Secretary of State) serving as Acting President. Miller’s congressional testimony has been quoted in the Wall Street Journal, the Washington Post, and Fortune magazine. Miller’s congressional testimony is also featured on the website of the Continuity of Government Commission, www.continuityofgovernment.org, a joint undertaking of the Brookings Institution and the American Enterprise Institute.
A Louisiana native, Miller attended Louisiana State University in 1980-1981 on an accelerated basis. After being admitted to Tulane Law School on an early-admission basis at age 19 and graduating at age 22, Miller clerked for Judge John M. Duhe, Jr. of the U.S. District Court for the Western District of Louisiana (1984-1985) and later for Judge Thomas Gibbs Gee of the U.S. Court of Appeals for the Fifth Circuit (1985-1986). Miller is admitted to practice in the District of Columbia, the Commonwealth of Virginia, the U.S. Supreme Court, and every circuit of the federal courts of appeals.
Experience in the U.S. Supreme Court in Cases Decided on the Merits
Arthur Andersen, LLP v. Carlisle, 556 U.S. ___, 129 S. Ct. 1896 (2009). Whether non-parties to an arbitration agreement may use the Federal Arbitration Act to enforce arbitration rights; whether non-parties to an arbitration agreement may appeal a district court’s denial of a motion to stay pending arbitration.
Federal Election Commission v. Wisconsin Right to Life, Inc., __U.S.__, 127 S. Ct. 2652 (2007). Whether the McCain-Feingold law’s broad ban on election-related communications by corporations violated the First Amendment.
Beck v. PACE International Union, __U.S.__ , 127 S. Ct. 2310 (2007). Whether a pension plan sponsor terminating a pension plan had a fiduciary duty under ERISA to consider a union’s proposal to merge the plan with the union’s pension plan.
Wisconsin Right to Life, Inc. v. Federal Election Commission, 546 U.S. 410 (2006) (per curiam). Whether McConnell v. Federal Election Commission foreclosed an “as applied” First Amendment challenge to the McCain-Feingold law’s ban on election-related communications by corporations.
Merck KGaA v. Integra Lifesciences I, Ltd., 545 U.S. 193 (2005). Whether the Federal Circuit correctly construed the scope of the “FDA Exemption” under the Hatch-Waxman Act to liability for patent infringement.
Foster v. Love, 522 U.S. 67 (1997). Whether Louisiana’s potentially conclusive October open primary for members of Congress violated federal law setting a uniform national election day in November.
Experience in U.S. Courts of Appeals
Purechoice, Inc. v. Honeywell International, Inc., No. 2008-1482 (Fed. Cir. June 1, 2009). Whether the district court correctly construed a patent’s claims and whether the patent was invalid for indefiniteness.
McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir. 2007). Whether military contractors are entitled to derivative Feres immunity and whether a suit against a battlefield contractor is non-justiciable as a political question.
Williams v. Rohm and Haas Pension Plan, 497 F.3d 710 (7th Cir. 2007). Whether a pension plan violates ERISA by excluding a cost-of-living adjustment (COLA) from the pension plan’s definition of accrued benefit.
Mt. McKinley Ins. Co. v. Corning, Inc., 399 F.3d 436 (2d Cir. 2005). Whether a non-debtor’s claim on insurance policies shared with a Debtor can trigger “core” bankruptcy jurisdiction and whether mandatory abstention under the bankruptcy jurisdiction statute applies to removed actions.
Republican National Committee v. Democratic National Committee (unpublished) (3d Cir. 2004) (en banc). Whether a district court order enjoining poll watching activities in the 2004 presidential election should be stayed pending appeal.
Lexmark International, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004). Whether a manufacturer of computer chips that allowed remanufactured toner cartridges to function was liable under the Copyright Act and the Digital Millennium Copyright Act.
Illinois Clean Energy Community Foundation v. Filan, 392 F.3d 934 (7th Cir. 2004). Whether a foundation was private entity or state instrumentality for purposes of Takings Clause challenge to state law directing the foundation to transfer $125 million to the state.
Continental Ins. Co. v. Allianz Ins. Co., 52 Fed. Appx. 557 (2d Cir. 2002). Whether the effect of a general release and settlement agreement “so ordered” by a federal district court was to be determined by the court or by an arbitration panel.
Millsaps v. Thompson, 259 F.3d 535 (6th Cir. 2001). Whether Tennessee’s early voting system violated federal law establishing a uniform day for federal elections.
Voting Integrity Project, Inc. v. Keisling, 259 F.3d 1169 (9th Cir. 2001). Whether Oregon’s vote by mail system violated federal law establishing a uniform day for federal elections.
Aptix v. Quickturn Design Systems, Inc., 269 F.3d 1369 (Fed. Cir. 2001). Whether the doctrine of inequitable conduct allowed a district court to terminate a patent based upon the patent holder’s litigation misconduct.
Voting Integrity Project, Inc. v. Bomer, 199 F.3d 773 (5th Cir. 2000). Whether Texas’ early voting system violated federal law establishing a uniform day for federal elections.
Love v. Foster, 147 F.3d 383 (5th Cir. 1998). Whether the district court’s permanent injunction restructuring Louisiana’s election system for federal elections comported with severability principles under Louisiana law.
Jordahl v. Democratic Party of Virginia, 122 F.3d 192 (4th Cir. 1997). Whether the Rooker-Feldman doctrine deprived a federal district court of jurisdiction over a claim for damages arising out of a state court’s injunction against the distribution of voter guides.
In re Texas Eastern Transmission Corp. (unpublished) (3d Cir. 1996). Whether a district court erred by failing to enforce the issue preclusive effects of its judgment.
Love v. Foster, 90 F.3d 1026 (5th Cir. 1996), aff’d, 522 U.S. 67 (1997). Whether Louisiana’s potentially conclusive October open primary for members of Congress violated federal law establishing a uniform election day for federal elections.
Fidelity and Casualty Co. v. Texas Eastern Transmission Corp., 15 F.3d 1230 (3d Cir. 1994). Whether under the doctrine of ancillary jurisdiction, the joinder of non-diverse counterclaim defendants destroyed diversity jurisdiction.
Family Foundation v. Brown, 9 F.3d 1075 (4th Cir. 1993). Whether the Younger doctrine barred a federal court from enjoining enforcement of a state court injunction that amounted to prior restraint of core political speech on the eve of a state-wide election.
Experience in State Appellate Courts
Kessler v. Hevesi, 45 A.D.3d 474, 846 N.Y.S.2d 56 (App. Div. 1st Dept. 2007). Whether a state surcharge on wireless devices was a tax or fee for purposes of the Takings Clause of the Fifth Amendment to the U.S. Constitution.
Mt. McKinley Ins. Co. v. Corning, Inc., 33 A.D.3d 51, 818 N.Y.S.2d 73 (App. Div. 1st Dept. 2006). Whether a declaratory judgment action involving an insurance coverage dispute was justiciable and whether the trial court abused its discretion in staying the action in deference to a related bankruptcy proceeding.
Harvey v. Kaiser Foundation Health Plan, 370 Md. 604,805 A.2d 1061 (2002). Whether a Maryland statute giving health insurers a retroactive right of subrogation against tortfeasors violated the Maryland Constitution’s due process clause.
Family Foundation v. Democratic Party of Virginia (unpublished) (Va. 1993). Whether a state trial court’s injunction against the distribution of voter guides on the eve of state-wide election violated the First Amendment.
Constitutional Cases in U.S. District Courts
Love v. Blanco (unreported) (M.D. La. 2006). Whether a new Louisiana election law statute complied with the federal election day statutes as construed by the U.S. Supreme Court in Foster v. Love.
Bioganic Safety Brand, Inc. v. Ament, 174 F. Supp. 2d 1168 (D. Colo. 2001) Whether a Colorado statute imposing unique limitations on pesticide labels violated the manufacturer’s commercial speech rights under the First Amendment and unduly burdened interstate commerce under the Dormant Commerce Clause.
Articles/Congressional Testimony
Oversight Hearing on the Presidential Succession Act of 1947, Hearing before the Committee on the Judiciary, Subcommittee on the Constitution, United States House of Representatives, October 6, 2004.
Ensuring the Continuity of the Presidency, Joint Hearing before the Committee on Rules and Administration and the Committee on the Judiciary, United States Senate, September 16, 2003.
H.J. Res. 67 and Continuity of Government, Hearing before the Committee on the Judiciary, Subcommittee on the Constitution, United States House of Representatives, February 28, 2002.
Fools, Drunkards, and Presidential Succession, National Security White Paper for the Federalist Society (December 2001), available at www.fed-soc.org.
Education
- Tulane University School of Law, J.D., 1984
- Louisiana State University
