The Nine [118]
On September 15, 1999, a month after the article ran, Ford had dinner with James M. Cannon, one of his former White House aides, in Grand Rapids. (The two men were in town to hear a speech at Ford’s presidential museum by his only appointee to the Supreme Court, John Paul Stevens.) Ford encouraged Cannon to do what he could to help the university in the lawsuit, and the following day Cannon met with Bollinger in Ann Arbor. Cannon had served on the board of visitors of the U.S. Naval Academy, and he knew how important affirmative action had been to the military, especially its officer corps. Cannon had been told many times that the navy did not want ships full of enlisted men, who tended to be heavily minority, being commanded by all-white groups of officers. Affirmative action wasn’t social engineering; it was military necessity—a message that Bollinger wanted to make sure the justices received.
The Michigan tactics in front of the justices came to resemble a political campaign as much as a litigation strategy—which was fitting for a Court that hewed so closely to public opinion on controversial issues. Bollinger and his team knew that the key to winning O’Connor’s vote, and thus the case, was mobilizing establishment support for affirmative action. Civil rights groups, even other universities, would be expected to support Michigan’s position, but the justices had to know that support for affirmative action transcended what was left of the traditional Democratic Party coalition.
Earlier, when the case was before the district court, Bollinger and Marvin Krislov, the university’s general counsel, had persuaded General Motors to submit an amicus curiae, or friend of the court, brief on behalf of the university’s program, focusing on the importance of developing a diverse workforce for Michigan’s most famous corporate citizen. In the Supreme Court, the university recruited sixty-five of the Fortune 500 to sign a brief in support of its affirmative action program, and it would come to be endorsed by most of the biggest and most respected companies in the country, including Boeing, Coca-Cola, General Electric, and Microsoft. As those companies told the justices in their brief, “Today’s global marketplace and the increasing diversity in the American population demand the cross-cultural experience and understanding gained from [an education where students] are exposed to diverse people, ideas, perspectives, and interactions.”
But the military was potentially an even greater ally for the university. Active duty officers could not take a stand on such a controversial issue, but the team that Ford set in motion sought out the next best thing—retired military officers. Krislov contacted Joseph Reeder, a Washington lawyer who had been undersecretary of the army in the Clinton administration, and he began recruiting high-profile retirees to sign a brief. The group eventually included H. Norman Schwarzkopf, John Shalikashvili, Hugh Shelton, William J. Crowe, and two dozen others. To write the military brief, the Michigan team recruited Carter Phillips and his colleague Virginia Seitz, pillars of the Supreme Court bar and thus not at all usual suspects in a civil rights case.
“Based on decades of experience, amici have concluded that a highly qualified, racially diverse officer corps educated and trained to command our nation’s racially diverse enlisted ranks is essential to the military’s ability to fulfill its principal mission to provide national security,” Phillips began his brief. Enlisted military were 21.7 percent African American, while the officer corps was only 8.8 percent black. “The officer corps must continue to be diverse or the cohesiveness essential to the military mission will be critically undermined,” he continued.
Then, in the key section of the brief, Phillips showed that the three major service academies—West Point, Annapolis,