Edward Blum defies odds in getting cases to Supreme Court

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.