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The Washington duo behind a Texas affirmative action case

By Catherine Ho,March 04, 2012

Bert W. Rein, founding partner of District law firm Wiley Rein, will be arguing… (Jeffrey MacMillan/Capital…)

Eighteen years ago, Edward Blum was a plaintiff in a lawsuit filed by several Texas voters who sued the state over its redistricting plan.

When the case, Bush v. Vera , landed on the Supreme Court’s docket, Blum knew he needed a law firm with a well-oiled appellate practice to argue on his behalf. That’s when he found Dan Troy, then a partner at Wiley Rein, one of Washington’s largest home-grown law firms.

Troy, now general counsel at GlaxoSmithKline, won the case for Blum and his co-plaintiffs, when the high court struck down the congressional districts created by the Texas plan, ruling they were formed through racial gerrymandering.

Those ties led Blum and Wiley Rein to collaborate again, this time on one of the most talked-about issues the Supreme Court has agreed to hear in the fall: Fisher v. University of Texas at Austin, which could eliminate affirmative action in college admissions. Abigail Fisher, a white student, sued the university in 2008 after being denied entry to the freshman class, saying the school’s use of race in admissions discriminated against her. The case revisits the use of affirmative action in higher education, an issue last addressed by the Supreme Court in 2003, when it upheld the University of Michigan Law School’s limited use of race preferences in Grutter v. Bollinger .

Blum is the force behind the Project for Fair Representation, a Washington legal defense foundation that opposes race preferences in education, voting, contracting and employment. Blum, who is not an attorney, is the founder and sole proprietor of the nonprofit, which he created in 2005 after several years of running its predecessor, the Campaign for a Color-Blind America. The two groups have brought several cases challenging redistricting plans in Virginia, New York and South Carolina.

Blum, who is also a visiting fellow at the conservative think tank American Enterprise Institute, connects plaintiffs with attorneys and raises money from individuals and private foundations to fund the litigation. Lawyers who have brought cases with Blum have received “greatly reduced” fees for their work, he said.

“My role in this is to facilitate and fund the various lawsuits,” Blum said. “I don’t take a salary, I don’t have overhead, I don’t have a staff. What I do have is a two-decade long relationship with some of the brightest legal minds in the country.”

A two-decade relationship

Blum has known Fisher’s father for 20 years and approached Bert W. Rein, co-founding partner of Wiley Rein, to bring the case on the family’s behalf. Rein is an antitrust litigator who represents pharmaceutical companies and airlines, and has served as director of the U.S. Chamber of Commerce. This will be his first time arguing before the Supreme Court.

To prepare, Rein plans to do a moot court at Georgetown Law School, which hosts practice sessions for attorneys preparing to appear before the high court. A panel of law faculty act as justices and fire off questions in a mock courtroom. The firm typically holds moot courts internally with its own lawyers, but seeks “outside mooting” for big cases.

Rein said he doesn’t have any superstitious pre-trial rituals, and that he’s concentrating on trying to anticipate potential questions justices may ask, and making sure he can drive his point home in the answers.

Rein is also the lead lawyer in another case Blum brought to the firm, Shelby County, Ala. v. Holder, which challenges parts of the federal Voting Rights Act that require local governments to seek federal approval before making changes to voting laws — a rule put into place during the civil rights era to prevent racial discrimination in voting. The case was argued in January, and is awaiting a decision from the Court of Appeals for the D.C. Circuit.

“These are important cases but ... we are not engaged in an ideological pro bono crusade,” Rein said.

He said the firm decided to take on the Fisher case because the high court’s 2003 decision — which allows universities to consider race in admissions to promote diversity — left room for further clarification on how race preferences should apply under different circumstances.

“There’s always been a question about how much preference Grutter condones and it seemed like a fair matter for litigation,” Rein said. “We believed we would be assisting the courts and the academic community to straighten it out.”