Why was there a last-minute swap of counsel in Schuette? Maybe because “‘it was really important’ to see a black lawyer arguing in support of affirmative action”

October 30th, 2013

In my earlier post on Schuette, I noted that Shanta Driver, a last minute substitute was terrible. I questioned why in the world there would be a switch of lawyers before the Court. So did Tony Mauro.

Now Tony found a possible answer.

Detroit civil rights lawyer Shanta Driver made a last-minute decision to argue in a high-profile Supreme Court affirmative action case on Oct. 15 in part, she said, because so few African-American lawyers appear before the justices.

Speaking at a rally of affirmative action supporters in front of the court after the argument, Driver said that only one black lawyer—who spoke for 11 minutes—appeared last term before the justices. It was important, she added, for her as a black woman to argue in Schuette v., Coalition to Defend Affirmative Action to show the justices that someone “who really could speak for the movement” was making the case to save affirmative action.

Her comments, which have gone unreported, help solve the mystery surrounding Driver’s surprise appearance before the court in one of its most important cases of the term. Until the morning of the Supreme Court arguments, Driver’s law firm partner George Washington, who is white, was listed by the court as the one who would make the case for state programs that give a boost to minorities.

The comments come around 12:26. She says that it was very important for this case to be argued by a black attorney, especially for the liberal justices.

This is striking, and patronizing to the Justices. Are we to believe that a white attorney would not be as effective?

“I do think, particularly for the judges on the left, it was really important” to see a black lawyer arguing in support of affirmative action, Driver said to the audience. It was also important, she said, “that there was someone up there who was fighting, who really could speak for the movement and was of the movement.” Her colleague Washington was standing behind her as she spoke.

Interestingly, the video cut off right as she said “of the movement.” Though it still made its way to YouTube.

I earlier questioned whether both of them were mooted. According to Tony’s report, yes:

As late as October 10, five days before the Supreme Court argument, Washington and Driver both did moot court rehearsals in Washington, D.C., stating that they had not yet settled on who would argue. It is extremely rare for that decision to be made so late in preparations.

Washington and Driver informed the Supreme Court of the switch to Driver on Oct. 14, the day before the argument, but the court was closed for the Columbus Day federal holiday. Other lawyers connected to the case were unaware of the change as late as the morning of the argument.

Kudos to Tony for tracking this down. And I don’t expect Ms. Driver to argue before the Court anytime.

Also, check out this video at 7:48. She said “I did great.” That she was in BAMN “added more to her side than any argument could make.” She repeated that the 14th Amendment “protects minority rights.” She referred to Justice Scalia’s question that obliterated her as “yadda yadda yadda.” She “yadda yadda yadda’d” a Supreme Court oral argument.