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
, was swapped on
the eve of the Oct. 15 argument for Shanta Driver, his African American law
partner and fellow leader of the group. Cincinnati
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.
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
it would be Driver instead. Washington
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,
have better credentials than Driver for the assignment. Both are Washington Harvard College
graduates, but Washington went to
and was first admitted to the bar in 1973. Driver is a 2003 graduate of Harvard Law School . Wayne State
School has a 6.5 rating from the
lawyer-rating service Avvo; Driver is unrated. Washington
Why then the switch? Driver herself disclosed the reason in a post-argument pep rally to the coalition’s supporters brought to
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. Washington
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
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.