University of Texas president William Powers stood before a dozen TV cameras outside the Supreme Court Building, discussing the affirmative-action case that had just been argued before the justices, when a slight man approached from the right and said: “The plaintiff is here. Please, let the plaintiff speak.”
The plaintiff was Abigail Fisher, a 22-year-old graduate of Louisiana State University who had been denied admission to the University of Texas in 2008 and responded with a lawsuit alleging that a less qualified minority applicant had taken her place. On an October morning four years later, she was making history.
The man guiding her toward the cameras was Edward Blum, a former Paine Webber stockbroker from Houston who recruited Fisher as a plaintiff, then raised the money to file, try, and appeal her case. Fisher looked painfully uncomfortable as she stood biting her upper lip. Blum told Fisher’s parents, longtime family friends, to stand behind their daughter; he then moved away from the TV cameras and watched.
Fisher’s appellate attorney, Bert Rein, stood beside her. But Fisher was incapable of speech beyond one scripted sentence. Rein fielded the questions. Then Blum escorted Fisher and her family past TV reporters, who had lifted their cameras off their tripods to follow her as she departed.
The scene illustrated how Blum works—producing and directing the program, getting the players to hit their marks, then watching from the wings.
His campaign to dismantle statutes and case law that provide advantages to minority groups began in 1992, when he was a candidate in a U.S. House race he knew he couldn’t win. (A poll he commissioned before the campaign had him losing by a large margin to Congressman Craig Washington.)
After Blum, who is white and ran as a Republican, failed to unseat Washington, a black Democratic congressman in an urban district that was 50 percent black, he filed his first lawsuit. He also founded his own advocacy group, the Campaign for a Color-Blind America Legal Defense Fund. The Supreme Court ruled in his favor in 1996 in a 5-4 decision that made it more difficult for state legislatures to create districts that accommodate minority voters.
In an e-mail response to one of several questions, Blum said he ran against Washington because he was “young and idealistic.” Yet what Blum did was brilliant. A candidate enters a race he knows he can’t win, loses and creates his own cause of action, files suit and prevails in the Supreme Court.
“This decision affirms that we Americans must use our brains and not our skin to decide who will ultimately represent us,” Blum said when the decision was handed down.
With a win before the Supreme Court, Blum found his calling. He began matching plaintiffs, money, and attorneys in a campaign to end race-based laws.
Blum, who in 1997 told The Austin American-Statesman that as an undergraduate at the University of Texas he was a “committed liberal” fighting for civil rights and racial diversity, came to the game late. An anti-affirmative-action campaign that had been gestating in right-wing think tanks since Richard Nixon was president had come to life with the election of Ronald Reagan, who packed his Justice Department with activist lawyers eager to dismantle laws that redressed the legacy of segregation.
The Reaganites who began the campaign against affirmative action are still part of the movement. In fact, one Fisher v. Texas amicus brief posted on Blum’s Project on Fair Representation website reads like a Reagan reunion guest list: Edwin Meese was a Heritage Foundation fellow and opponent of affirmative action before he was Reagan’s attorney general. William Bradford Smith was an assistant AG in Reagan’s Justice Department, in charge of the Civil Rights Division, where he worked on rolling back civil rights legislation. Roger Clegg was a Federalist Society lawyer appointed to an AG position in the Civil Rights Division of the Reagan Justice Department.
The most distinguished amicus is Clint Bolick, who chaired Reagan’s Equal Opportunity Employment Commission and served as a special assistant in the Civil Rights Division at the DOJ under Reagan. Unusual gigs for the author of The Fraud of Affirmative Action (published by the Cato Institute), in which Bolick claimed that “The only state-imposed discrimination my generation has witnessed is reverse discrimination.”
The Reagan-era cabal of Federalist Society lawyers and think-tankers co-opted the “equal rights” language of the civil rights movement and managed to turn the Equal Protection Clause of the Fourteenth Amendment against the people it was intended to protect when it was ratified at the end of the Civil War.
Blum has taken the legal theories developed by anti-civil-rights activists into the courts, using the same litigation strategy Thurgood Marshall used when he was an NAACP attorney: carefully selecting plaintiffs whose cases provide the best opportunity to overturn laws.
Blum confirmed that his litigation is funded by DonorsTrust and that the names of contributors to the fundraising collective are not available to the public. The resume of DonorsTrust CEO Whitney L. Ball suggests where the money comes from. According to SourceWatch, Ball was on a list of right-wing donors and grantees at a Koch brothers strategy meeting in 2010. Ball previously worked for the Cato Institute, which is funded by the Koch brothers, and for the Philanthropy Roundtable, a conservative funding collective. Tax attorneys told SourceWatch that contributors to DonorsTrust receive a tax deduction but “not even the IRS knows where a particular donor’s money goes after it gets to DonorsTrust.”
Blum is now a visiting fellow at the American Enterprise Institute in Washington, D.C. His Project on Fair Representation is housed in an Alexandria, Virginia, office of DonorsTrust.
His litigation strategy, however, seems rooted in Texas. Two years after Abigail Fisher filed her lawsuit, Blum saw an opportunity to reach far beyond college admissions when the Obama Justice Department (foolishly) refused to exempt a tiny municipal utility district north of Austin from an election preclearance process that the Voting Rights Act requires in 11 Southern states, Alaska, and select local jurisdictions.
N.W. Austin MUD Number One v. Holder provided Blum a shot at the 1965 Voting Rights Act, the Holy Grail of opponents of race-based legislation. This case, too, made it all the way to the Supreme Court.
While the Court didn’t overturn the Voting Rights Act, Chief Justice John Roberts’s comments in an 8–1 opinion on the act’s preclearance requirements—which prevent state and local governments from obstructing minority access to the ballot box—suggest he is ready to rule to overturn a law considered essential to the protection of minority voting rights.
“The preclearance requirement represents an intrusion into areas of state and local responsibility that is otherwise unfamiliar to our federal system,” Roberts wrote. While all the justices concluded that imposing preclearance requirements on a municipal utility district was excessive, Clarence Thomas dissented, because he wanted to challenge the constitutionality of the Voting Rights Act.
So does Ed Blum. And he’s just getting started.
While he was working on the Texas case, Blum was also working on an Alabama lawsuit that will ask Supreme Court justices to rule on the constitutionality of the Voting Rights Act. The case is currently on appeal at the D.C. Circuit Court of Appeals.
So Blum will probably have another day at the Supreme Court next year. In a subsequent issue, we will look at the facts on the ground in Shelby County, Alabama, where the organized right believes it will gut the Voting Rights Act.
Meanwhile, the consensus of legal scholars has the Court wiping out some, if not all, of the race-based college admission practices that Fisher and Blum are challenging in Texas.
Also in this issue: Blum’s Box Score.