Edward Blum defies odds in getting cases to Supreme Court
By Krissah Thompson,
The odds are daunting: Last term, 8,952 cases were filed at the Supreme Court. The justices agreed to schedule a mere 79 for oral argument.
That’s a 0.88 percent chance of having your case reviewed. Getting two to the high court is less likely than averaging a triple-double for an entire season in the NBA.
So how did Edward Blum do it? How did he guide not one — but two — cases to the Supreme Court in one term?
Blum is a 61-year-old former stockbroker with a gentle demeanor and a waify runner’s build. He fashions himself a Supreme Court matchmaker — hooking up worthy plaintiffs with top-notch lawyers. He also thinks government should never allow race to be a factor in its decisions. Liberals have labeled him the Republican who could gut affirmative action and key voting rights protections for minorities. Conservatives laud him as a starting player in their effort to end racial preferences.
On Feb. 27, the Supreme Court will hear arguments in Shelby County v. Holder , which challenges a pivotal section of the 1965 Voting Rights Act. Earlier in the term, the court heard arguments in Fisher v. Texas , a case in which a white student is challenging race-based admission policies at the University of Texas. The justices are expected to hand down decisions in both cases this spring.
Both could upend decades of civil rights law. Both were ushered along by Blum.
As director of the Project on Fair Representation and the project’s sole employee, Blum largely works alone. He found the plaintiffs after years of hunting and paired them with attorneys at Wiley Rein, a powerhouse Washington law firm. Blum’s legal defense fund pays the attorneys’ fees. Although Blum’s legal defense fund holds only $15,000, Blum says it has paid millions over the years to bankroll litigation.
“I’m just a regular guy,” he said quietly in a recent interview. A regular guy whose search for cases at the intersection of race, public policy and law has spanned 20 years.
“It’s not even a close call to say that he is dead wrong in his positions,” said Gary Bledsoe, a civil rights attorney and president of the Texas NAACP, which has tangled with Blum through the years.
Blum will say only that it’s the civil rights groups that have gone astray.
“The civil rights movement had it right from the very beginning — abandon the use of race,” Blum said.
To that end, he has developed a keen eye for plaintiffs with the story, demeanor and will to mount constitutional challenges to laws that show preference to minorities.
“Challenging race-based policies requires a very delicate touch and requires someone of a good heart . . . to understand that there is another side of the argument,” Blum said, describing how he looks for plaintiffs, “and to be sympathetic to that.”
Translation: Bigots, showboats and embittered activists need not apply — a sentiment Blum has put to work in more than one instance.
The power to effect change
Blum (pronounced “Bloom”) was born in Michigan and raised in Florida and Houston. He grew up the son of a shoe salesman in a home where Yiddish was spoken. “There were family members who had tattoos on their forearms,” Blum said.
He attended public schools before graduating from the University of Texas in 1973. He then spent a year at the State University of New York, studying African literature, which he found intellectually stimulating. Blum returned South, where he became an investment adviser and dabbled in Republican politics.
In 1993, he ran for Congress against Democrat Craig Washington in the city’s 18th District, an inner-city hub that many Houstonians still consider Barbara Jordan’s seat. The district’s lines curled around in some places, cutting through neighborhoods. As Blum campaigned, walking the district, he said he found it “so badly gerrymandered” that he thought it must be unconstitutional.
Blum lost the race badly, but he heard about cases that were bubbling up through the courts challenging other districts that had been drawn along racial lines. He recruited a handful of plaintiffs and raided his savings to hire an attorney to the tune of $7,000 a month. In 1996, by a 5-4 vote, the Supreme Court decided that case — Vera v. Bush — and struck down the district.
Blum, by his own admission, was “smitten” by the power to make change. Throughout the 1990s, Blum helped bring a half-dozen other cases challenging congressional districts he thought were unfairly structured around racial lines.
As word about him got out, he began to hear from white mothers in Houston who could not get their children into the public school’s vanguard programs because of quotas that specified the number of whites and blacks. He helped put together a case against the school district that was settled when the district agreed to open enough slots to accommodate all qualified students.
“See, these are good outcomes,” Blum said.
Bert Rein, a founding partner of the Wiley Rein law firm and the lead attorney in both the Blum-shepherded cases this term, said Blum’s agenda is “philosophical rather than personal.”
“He is able to see and appreciate those sides of issues with which he does not agree,” Rein said.
Yet Blum’s mission has had personal repercussions. While working at Paine Webber in the 1990s, he was told by his bosses to stop the political activities. He refused and quit.
In 2000, Blum and his wife, a retired insurance agent, moved to Washington, where he spent time hobnobbing in conservative legal circles. Eventually he landed an unpaid, visiting fellowship with the American Enterprise Institute, a think tank that once served as home for the late Judge Robert Bork, whose Supreme Court bid was sunk after fierce liberal opposition to some of his views, including those on civil rights law.
He turned to his next targets: ending race-based affirmative action in higher education, as well as requirements that jurisdictions with a history of racial discrimination get clearance from the federal government before making changes that affect voting.
Finding the right plaintiff
The strategy that Blum uses to challenge the constitutionality of laws before the Supreme Court is not new. Civil rights attorneys in the 1950s and ’60s honed it to a science.
It was through the NAACP that Thurgood Marshall found Heman Sweatt, a black mail carrier from Houston who in 1946 was denied admission to the University of Texas Law School because of the color of his skin. With its network of contacts throughout the country, the civil rights organization could bring to Marshall’s attention the most compelling cases. In 1950, the famed attorney — who would become the first African American Supreme Court justice — took Sweatt’s case to the Supreme Court. The justices ordered the law school to admit Sweatt, marking the beginning of the end of school segregation. (Marshall’s most famous case as a lawyer — Brown v. Board of Education — would be decided some four years later.)
Conservatives, such as Blum, have adopted Marshall’s tactics — to different ends, said Hans A. von Spakovsky, a fellow at the Heritage Foundation.
“There are plenty of groups who carefully cultivate cases,” von Spakovsky said. “The only thing that is unusual is it is mostly liberal groups who work on stuff like this.”
The search for a plaintiff to challenge affirmative action in higher education took Blum two years. He began the hunt in 2006, just after the Supreme Court narrowly upheld an affirmative action program at the University of Michigan.
Blum’s alma mater — the University of Texas — was a natural target: Blum knew the school used race as one factor in its admissions process. He set up the Web site UTNotFair.org to solicit the stories of white students whose applications had been rejected. He sifted through some 300 entries. He called attorneys, who might already have clients whose cases could lend themselves to his cause. He called old friends. He waited.
He considered one young man, but he seemed like a goofball who might go off the rails, Blum recalls. He met another student whose father said things that struck Blum as bigoted.
Then Blum heard from Abigail Fisher’s father. Blum had known the Fishers since before Abigail was born, and they knew of his hunt. Fisher had been denied admission to UT, the university her father and sister had attended, and she wanted to sue.
Blum look at Fisher’s academic record and then gave the A-student The Talk.
“It will be represented in court that you, as an individual 18-year-old kid, are questioning the wisdom and propriety of diversity in higher education,” he recalled saying. “And your friends may not like this. Your parents’ friends may not like this. . . . I’ll pay for it all. I’ll hold your hand throughout the years . . . but you have to be prepared for this.”
Fisher said yes. The justices agreed to hear the case, which was argued this fall.
“I don’t want to sound cocky, but I knew it,” Blum said.“I just knew it.”
At the same time, Blum was narrowing in on a plaintiff to challenge his other target: Section 5 of the Voting Rights Act, a triumph of the civil rights movement passed to protect black voters from literacy tests and Jim Crow election officials. The section requires certain states and jurisdictions — mostly in the South — to get Justice Department “pre-clearance,” or approval, before changing any law or procedure that affects voting.
Blum thinks that society’s growing embrace of diversity has made these old protections obsolete. “You can’t go to a small dinner party in most of America today and tell an off-color joke and not be ostracized,” Blum said.
He had previously guided the case of an Austin public utility to the court in the hope of killing the pre-clearance mandate. The effort failed; Blum tried again.
He searched the Justice Department’s Web site for jurisdictions that had been denied pre-clearance. After several cold-calls, he reached Frank “Butch” Ellis of Shelby County, near Birmingham, Ala.
“We just got along,” Blum said.
Ellis told him about growing up amid the dairy farms of Shelby County and about the county today — young and growing, where one city in the predominantly white county had elected its first black mayor in 2012.
“We’ve moved beyond race in these jurisdictions,” Blum said.
The court will decide
In a moment of serendipity a few weeks back, Blum boarded a plane from South Carolina to Washington and overheard a man talking about the challenge to the Voting Rights Act. Blum introduced himself and recognized Armand Derfner’s name.
Derfner, who helped shape the Voting Rights Act through Supreme Court arguments in the late 1960s, exchanged polite conversation with Blum during the flight. But he left wondering: “How can a nice person be doing such awful things?”
“The notion that the tiny infinitesimal group of circumstances in which a black person may get some favoritism . . . is the nation’s issue when blacks are on the bottom every single day, in every single way is just insane,” Derfner said. “What people like Edward Blum are doing is ignoring reality.”
Blum will leave it to the Supreme Court to decide. He will be in the courtroom when the justices hear the Voting Rights Act case Wednesday. He may not be arguing the case himself, but his handiwork will be in evidence.
This article has been changed to reflect that individuals had a 0.88 percent chance of having their cases heard last term at the Supreme Court — not a 0.88 chance.