The Nine [122]
Bush’s speech employed rhetoric that pleased his conservative base—and reflected the well-established views of Scalia and Thomas—but the brief filed by Theodore B. Olson, the solicitor general, took a more nuanced view of the issue. Olson’s brief carefully avoided the question of whether a university could ever consider race in admissions—and took no position on whether Bakke should be overturned. He said only that the Michigan programs amounted to quotas and should be rejected. That was the position that Olson hoped to express when he stood up to argue in Grutter, but he never got the chance.
Before Olson could say anything, Stevens said, “General Olson. Just let me get a question out. You can answer it at your convenience. I’d like you to comment on Carter Phillips’s brief. What is your view of the strength of that argument?…That’s the one about the generals and about the military academies.”
“We respect the opinions of those individuals,” Olson said, “but the position of the United States is that we do not accept the proposition that black soldiers will only fight for black officers or the reverse.” Olson was attacking a straw man, and the justices knew it. The retirees were not saying that blacks would only fight with blacks, they were saying that the military had a strong interest in an integrated officer corps.
Ginsburg went after him next. “But you recognize, General Olson, that here and now, all of the military academies do have race preference programs in admissions?” He did.
“Is that illegal what they’re doing…a violation of the Constitution?” Ginsburg followed up. This was an exquisitely difficult question. If Olson said yes, he admitted that the federal government was violating the law; if he said no, he looked like a hypocrite. So Olson avoided the issue, saying he had not studied the admissions programs at the academies.
Next it was Souter’s turn to wave the green brief, demanding to know how race-neutral recruiting could “respond to the position taken in Mr. Phillips’s brief…. They simply will not reach a substantial number or be able to attain a substantial number of minority slots in the class.” Respectfully, Olson disagreed.
As its lead lawyer in the case, Michigan had hired Maureen Mahoney, and her presence was another reflection of the university’s political strategy of tying its cause to the establishment. Before becoming a partner at Latham & Watkins, Mahoney had been a deputy solicitor general under Kenneth Starr and a law clerk to Rehnquist. (During the argument in Grutter, the chief slipped once and called her “Maureen.”) A Republican, Mahoney had been nominated to a federal trial judgeship in Virginia during the last months of the George H. W. Bush administration. The Senate never brought Mahoney up for a vote—John Roberts’s original nomination to the D.C. Circuit suffered the same fate—so she had the chance, like Roberts, to become one of the leading Supreme Court advocates of her generation. The fact that she came before the Court in Grutter bearing impeccable conservative credentials made her all the more appealing as Michigan’s messenger.
By the time Mahoney reached the podium, she could tell the Court was leaning her way. No justice had really questioned the first issue before them—whether diversity was a legitimate goal—and the only question appeared to be whether Michigan had gone too far to achieve a worthy end. Mahoney deftly parried Scalia’s and Kennedy’s attempts to portray the Michigan program as a “quota,” but then O’Connor came up with a question that had occurred to her while she was reading Bakke.
“Ms. Mahoney, may I shift focus away from this to another point before you’re finished that I am concerned about,” O’Connor said. “In all programs which this