Race-Based Lawyering Misfires at Supreme Court

  Opponents of Michigan’s voter-approved ban on racial preferences in public college and university admissions had an uphill fight in persuading the U.S. Supreme Court to strike it down. But it appears that the Michigan group that has fought the initiative tooth-and-nail for eight years may have weakened its slim chance of victory by playing the race card on game day in front of the justices.

  Thanks to reporting by Tony Mauro of National Law Journal, it is now known why the provocatively entitled Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary made a last-minute switch in the lawyer to argue the case at the Supreme Court. George Washington, the white lawyer who had argued the case before the federal appeals court in Cincinnati, was swapped on the eve of the Oct. 15 argument for Shanta Driver, his African American law partner and fellow leader of the group.

   Mauro reports that Washington and Driver both “mooted” the case — that is, rehearsed their arguments before panels of lawyers and law professors — in the week before the Oct. 15 arguments. Washington had been listed as the coalition’s attorney on the “hearing list” released by the court on Sept. 28 in advance of its October calendar. But the court was notified on Oct. 14—  Columbus Day, a legal holiday — that it would be Driver instead.

   As Mauro notes, it is rare — one might say unheard of — to change lawyers in a Supreme Court case at such a late date. And, on paper at least, Washington appears to have better credentials than Driver for the assignment. Both are Harvard College graduates, but Washington went to Harvard Law School and was first admitted to the bar in 1973. Driver is a 2003 graduate of Wayne State University Law School. Washington has a 6.5 rating from the lawyer-rating service Avvo; Driver is unrated. 

  Why then the switch? Driver herself disclosed the reason in a post-argument pep rally to the coalition’s supporters brought to Washington for a demonstration outside the court. The comments were recorded and posted on YouTube, where Mauro discovered them last week. It was important to have a black lawyer for the case, Driver explained, because only one black lawyer argued before the court in the preceding term: 11 minutes, she elaborated, out of 1,800 minutes of argument time altogether. 

   Driver’s information was correct, as first reported by the Associated Press. The only black lawyer to argue before the court during the 2012-2013 term was Debo P. Adegbile, counsel with the NAACP Legal Defense Fund, who shared argument time with the government in unsuccessfully defending the constitutionality of the Voting Rights Act. But Adegbile, an experienced appellate advocate, acquitted himself well in the argument. Driver, in the estimation of court watchers who attended the Oct. 15 argument, did not.

   Supreme Court advocates carefully rehearse their opening sentence, knowing that they may be interrupted before getting to the next. Driver opened by asking the court to restore the Fourteenth Amendment to its “original purpose” — to wit, “to protect minority rights against a white majority.” Justice Antonin Scalia forcefully interrupted to say that the court’s precedents now hold that the Fourteenth Amendment protects all persons.

  When Driver held to her point, Scalia asked the predictable question: “Do you have any case of ours that propounds that view of the Fourteenth Amendment, that it protects only minorities? Any case?” And to that question Driver had no answer: “No case of yours,” she said.

  Off to a terrible start, Driver’s argument did not get much better. She had no direct answer to one question from Justice Samuel A. Alito Jr., prompting both Alito and later Justice Anthony M. Kennedy to chide her for not being responsive. When Chief Justice John G. Roberts Jr. joined the questioning, he easily put Driver into a logical bind, prompting Scalia to accuse her of contradicting herself. For the coalition, the best moment in Driver’s argument came when Justice Sonia Sotomayor summarized her position. “You restated it very well,” Driver replied. 

  Outside afterward, Driver gladly accepted the crowd’s cheered assessment that she “did well.” “I did great,” she said, even as reporters preparing to write their stories inside were shaking their heads at the poor performance. In recapping the session for the crowd, she dismissed Scalia’s gotcha question as “yada, yada, yada.” 

  Driver went on to say that it was important for someone “from the movement” to have made the argument to “help bring the left wing to life . . . make them assert themselves.” Apparently, Driver had missed the point of all the advance stories about the case — that it was Kennedy, not the liberal justices, who held the key to any hopes the coalition might have to strike down the Michigan initiative. 

  Driver came to the Supreme Court argument with a two-decade history of organizing and demonstrating in the streets — back as far as disrupting a meeting of the University of California Board of Regents in 1995. She is quoted repeatedly in news coverage about the initiative — from signature gathering in 2005 up to the present — with rhetoric that is strident and confrontational. There is a place for that, of course, but one place where it does not help and is very likely to hurt is the lawyer’s lectern at the Supreme Court.