The influence game
A little group makes big law
By W. John Moore
The National Journal, November 15, 1998
When Cheryl Hopwood successfully sued to overturn affirmative action at the University of Texas Law School, she was represented by the Center for Individual Rights (CIR). After liberal groups challenged Proposition 209, the anti-affirmative action initiative that California voters approved last year, CIR lawyers defended it all the way to the Supreme Court, besting Harvard Law School professor Laurence H. Tribe in the process. Last month, Jennifer Gratz filed an affirmative action lawsuit against the University of Michigan. If the suit goes all the way to the Supreme Court, it could end racial preferences in college admissions. Her lawyers? You guessed it.
Who are these guys? Despite a string of victories in some of the most important and contentious constitutional cases this decade, the center and its top lawyers—president Michael P. McDonald, executive director Michael S. Greve and general counsel Michael Rosman—remain unknowns, even in Washington’s clubby legal community.
Yet if influence is measured by impact on the law rather than by partnership draws or invites to cushy ABA confabs, the center’s three Mikes are among the most important lawyers in Washington. “They have been involved in at least three of the biggest decisions on affirmative action and free speech that have come down in the last five years,” said Michael A. Carvin, who is a partner in the Washington law firm of Cooper & Carvin and has litigated cases for the center. “Any other group would be riding a publicity wave from those decisions.”
Founded in 1989 with seed money from conservative foundations, the nonprofit center now has six fulltime employees and a budget of $1.3 million, Greve said, including $300,000 from “the usual suspects,” such as the John M. Olin Foundation. In its early days, the CIR specialized in defending politically incorrect professors and students in free speech cases.
The center’s first major victory came in 1995, when the Supreme Court ruled, on free speech grounds, in Rosenberger v. University of Virginia that the school could not deny funding to a campus Christian publication. The university had argued that it withheld the money to avoid subsidizing a particular religious viewpoint.
The ClR’s mission—best expressed in its motto, “Bringing lawsuits for a better America”—has remained the same: Attack political correctness through hardball litigation. It eschews gentlemanly friend-of the-court briefs in favor of filing two dozen carefully targeted lawsuits a year.
The center is often described as a conservative version of the American Civil Liberties Union (ACLU) or the NAACP Legal Defense Fund, groups that pursue their causes from courthouse to courthouse all the way to the Supreme Court. Some civil rights lawyers scoff at the analogy, claiming the CIR gives no thought to the social ramifications of its work. Moreover, the NAACP relies on teams of lawyers to pursue racial justice in the courts, and the ACLU has an enormous national apparatus ready to go to court to protect civil liberties. The CIR, on the other hand, takes far fewer cases than those two groups, and its goal is precedent-making litigation.
The CIR represents defendants in sexual harassment cases and plaintiffs in affirmative action cases. It defended a Cornell University professor found guilty, under the school’s code, of sexually harassing students. In a reverse-discrimination suit, the CIR sued Virginia Commonwealth University on behalf of male professors after a pay raise went only to their women colleagues. When civil rights groups attempted to show racial discrimination by using representatives from ethnic and racial groups to pose as job applicants, the center opposed the effort and won. The group has also successfully challenged the constitutionality of the 1994 Violence Against Women Act, which lets rape victims sue their attackers in federal court.
“They look for cases that truly represent the principles that they are interested in vindicating,” said Theodore B. Olson, who is a Washington attorney with the Los Angeles-based firm of Gibson, Dunn & Crutcher and helped litigate the Texas law school case.
It helps that the center has a knack for sifting through hundreds of potential plaintiffs or defendants and then choosing those with the strongest cases. In the Michigan case, for example, the plaintiff, Jennifer Gratz, daughter of a policeman, attended public high school in a blue-collar section of Detroit. The center also relies on a network of conservatives in some of the nation’s best law firms to handle tricky litigation.
Critics attribute some of the CIR’s success to plain old good luck. Houston lawyer Harry Reasoner, who represented the other side in the Texas law school case, said “it was clear that we were going to lose” when three conservative judges on the U.S. Court of Appeals for the 5th Circuit were named to hear the case.
Center lawyers say that they have won plenty of cases without the benefit of a conservative judge. But they concede that the appointment of conservative judges by Presidents Reagan and Bush have made the courts more receptive to their arguments.
Others find it hypocritical that the CIR is pushing its agenda through the courts, given all the conservative rhetoric about activist judges. “They believe in using the courts for social engineering,” Reasoner snapped.
But the CIR is more libertarian than conservative. Libertarians “think the courts should be active in restraining government and defending liberty,” said Roger Pilon of the libertarian Cato Institute. CIR lawyers couldn’t agree more.