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Affirmative advocate

Defending affirmative action and big business, Maureen Mahoney, JD’78, has a caseload that’s supreme.

Not many lawyers receive fan mail or flowers from anonymous admirers. But not many lawyers have won a landmark case defending affirmative action—last year’s University of Michigan Law School suit, which some commentators have called the most significant civil-rights case in decades—before today’s conservative Supreme Court. “I must say I enjoyed the fan mail,” laughs Maureen Mahoney, JD’78. “But it’s not something I expect or need for every case.”

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Illustration by Richard Thompson

Poised and unflappable—even under Justice Antonin Scalia’s withering questions—and awarded 2003’s Best Oral Argument prize by the Daily Journal, a legal publication, Mahoney has appeared before the Supreme Court 12 times, losing only once. “I’ve just been lucky getting the winning side of the issue,” Mahoney says, though when pressed she admits it’s more than mere luck: she prepares “excessively,” memorizing statistics, quotes, and precedents. Yet she never prepares speeches in advance: “I don’t know for certain what I’m going to say in any given argument, not even the opening couple of sentences.” She also admits to a secret weapon: a cake doughnut with chocolate frosting, eaten just before delivering her argument. After her high-school swim coach said she’d compete better if she ate some sugar, she told the Legal Times, “I decided that was very tasty advice, and I followed it ever since.”

Born in South Bend, Indiana, Mahoney determined by age 8 that she wanted to be a lawyer like her father, a personal-injury specialist. Her father explained—meaning to be kind, Mahoney stresses—that in his experience there was no place for women in the law. Ignoring his advice, Mahoney earned a political-science degree from Indiana University and then enrolled at the U of C Law School, where her favorite class was federal jurisdiction. Encouraged to pursue a clerkship after graduation, she worked for 7th Circuit Judge Robert Sprecher on the U.S. Court of Appeals in Chicago. This led to an even more prestigious clerkship with William Rehnquist, then an associate Supreme Court justice; she still considers the day he offered her the job a career highlight. Both Sprecher and Rehnquist were “phenomenal judges,” she says, “who gave me every opportunity.”

At the end of her 1979 clerkship with Rehnquist, Mahoney received his standard advice to clerks: leave Washington and pursue a career back home. Disregarding his suggestion as she had her father’s, Mahoney took a job in Latham & Watkins’s DC office—then the only other branch of the 150-lawyer, Los Angeles–based firm, which now has 1,500 lawyers and 21 offices worldwide—primarily so she could stay in the city with her husband, William Crispin, JD’75, who had interned at her father’s firm and is now a name partner at Crispin & Brenner. At Latham she initially worked on both trials and appeals but after eight years began to specialize in appellate work. “I really enjoyed the more intellectual, legal side of practice,” she says. As an added benefit, an appellate lawyer’s schedule, with its reduced travel demands, made it easier to balance work and family, including children Brad, 21, and Abigail, 19.

Mahoney argued her first case before the Supreme Court, Mackey v. Lanier Collection Agency & Service, in 1988. Though the subject matter—a dispute over an employee welfare benefit plan—was “somewhat dry,” Mahoney says, “nevertheless I thought it was thrilling.” Pitted against the U.S. solicitor general, who represents the federal government, she says, “I expected to lose,” but instead she triumphed in a 5–4 decision. Her presentation was so impressive, American Lawyer reported, that the justices passed notes among themselves praising her and asking about her background.

The defeated solicitor general’s office also took notice; in 1991 Mahoney was appointed one of four deputy solicitors general, working for Kenneth Starr. In two years she argued eight cases before the Supreme Court, winning seven. The case she lost, McCarthy v. Madigan, she lost spectacularly: 9–0. The court found that a prisoner did not have to exhaust the penitentiary’s complaint procedures before suing for monetary damages. “I would have settled if I could have,” she says; representing the federal government, she didn’t have the option. “But I went in hoping to win.”

In 1992, at age 37, she was approached by the first Bush administration about a seat on the U.S. District Court for the Eastern District of Virginia. Mahoney accepted the offer enthusiastically and was formally nominated in April. But in November, when Democrat Bill Clinton was elected president, Mahoney found that she, along with other Republican nominees, had been abandoned. Disappointed, in 1993 she returned to Latham as partner in charge of its appellate and constitutional practice.

Then last year came the fan-mail case, Grutter v. Bollinger. Barbara Grutter, 43, a white Michigan Law School applicant, claimed she was rejected while less-qualified minority applicants were accepted. (The court also considered a companion case, Gratz v. Bollinger, about Michigan’s undergraduate admissions.) Mahoney, added to Michigan’s legal team for her Supreme Court experience, defended the law school’s affirmative-action policy—anathema to both the Bush administration and the court’s more conservative justices, including now-Chief Justice Rehnquist.

Though the media asked again and again about her views on affirmative action, or why a Republican would take such a case, Mahoney insisted that she was her client’s advocate, not an ideologue. To focus on an advocate’s personal views is “asking the wrong question,” she says. “If you’re really dedicated to the process of law, you take on the cause. You represent your client in the very best way you can.” What’s more, she adds, “I certainly was very comfortable with Michigan’s position.”

In June the court voted 5–4 to uphold the admissions policy, ruling that universities can use race as an admissions factor. Writing for the majority, Justice Sandra Day O’Connor echoed Mahoney’s argument: “In the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.” But Mahoney didn’t win over her former boss: Rehnquist—who broke with tradition at the hearing to address her as “Maureen”—wrote the minority opinion.

Most recently Mahoney took on an appeal by Chicago accounting firm Arthur Andersen, which in 2002 was found guilty of obstructing justice during the Enron Corp. investigation. While the once-mighty Andersen may never regain its dominance, an appellate victory would help the firm’s defense against multimillion-dollar shareholder suits. Corporate America is following the case as closely as higher education watched Grutter—the decision could radically alter document-retention policies. Mahoney argued the case before the 5th U.S. District Court of Appeals in October; the decision will come later this year.

While women remain rare in law’s top echelons, Mahoney, recently named one of America’s top 50 women litigators by the National Law Journal, says she hasn’t encountered sexism: Latham, in particular, “has been unbelievably fabulous—totally accommodating in every way.” Her father, meanwhile, had changed his mind by the time she applied to law school, and now, Mahoney says, “He’s my biggest fan.”—Carrie Golus, AB’91, AM’93


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