Gerald Ford’s Affirmative Action

By Jeffrey Toobin, a staff writer at The New Yorker and legal analyst for CNN, is the author of the forthcoming “The Nine: Inside the Secret World of the Supreme Court” (THE NEW YORK TIMES, 30/12/06):

GERALD R. FORD kept his distance from political controversy after leaving office, but he retained a special interest in the workings of his alma mater. In 1999, the 86-year-old former varsity football star decided to make a public stand in support of affirmative action at the University of Michigan.

He wrote an Op-Ed article on this page titled “Inclusive America, Under Attack.” A pair of pending lawsuits, Mr. Ford wrote, would prohibit Michigan and other universities “from even considering race as one of many factors weighed by admission counselors.” Such a move would condemn “future college students to suffer the cultural and social impoverishment that afflicted my generation.”

As it happened, on Sept. 15, 1999, a month after the article ran, Mr. Ford had dinner with James M. Cannon, one of his former White House aides, in Grand Rapids, Mich. The men were in town to hear a speech at Mr. Ford’s presidential museum by his only nominee to the Supreme Court, John Paul Stevens.

By that point, Justice Stevens had long since proved a great disappointment to conservatives. But his nomination remained one of Mr. Ford’s proudest achievements as president, for Justice Stevens’ moderate-to-liberal record reflected Mr. Ford’s own later views, as his stand on affirmative action illustrated. At the dinner, Mr. Ford encouraged Mr. Cannon to do what he could to help the university in the lawsuit, which was heading for the Supreme Court.

Mr. Cannon had served on the Board of Visitors of the Naval Academy, and both he and Mr. Ford knew how important affirmative action was to the military, especially its officer corps. Mr. Cannon had been told many times by the Navy’s top brass that they did not want ships full of enlisted men, who tended to be heavily minority, to be commanded exclusively by white officers. Affirmative action wasn’t social engineering, it was military necessity; and Mr. Cannon and Mr. Ford wanted to make sure the justices heard that message.

Active-duty officers could not take a stand on such a controversial issue, but Mr. Cannon, prompted by Mr. Ford, sought out the next best thing: retired military officers. In time, the University of Michigan defense team recruited Gen. H. Norman Schwarzkopf, Gen. John M. Shalikashvili, Gen. Hugh Shelton, Adm. William J. Crowe Jr. and two dozen others eminences to sign a friend-of-the-court brief in support of affirmative action written by a Washington lawyer, Carter G. Phillips.

The first case was argued at the court on April 1, 2003, less than two weeks after American and allied forces launched their invasion of Iraq. In this initial period, the war looked like a tremendous success; as a result, the military was held in especially high regard in the nation and at the court, and that attitude was reflected in the justices’ many questions about the brief by the military retirees.

To the lawyer representing the plaintiff, Justice Ruth Bader Ginsburg said, “May I call your attention in that regard to the brief that was filed on behalf of some retired military officers who said that to have an officer corps that includes minority members in any number, there is no way to do it other than to give not an overriding preference but a plus for race.”

Justices Stevens, Anthony M. Kennedy, David H. Souter and Sandra Day O’Connor followed up with similar queries. When Theodore B. Olson, the solicitor general, who was expressing the Bush administration’s opposition to the Michigan program, rose to speak, Justice Stevens quickly interrupted: “Just let me get a question out, and you answer it at your convenience. I’d like you to comment on Carter Phillips’s brief. What is your view of the strength of that argument?”

In the end, the court voted to uphold the affirmative action program at Michigan’s law school. Justice O’Connor’s opinion quoted Mr. Phillips’s brief at length and then, in an extraordinarily rare tribute, adopted its words as part of the court’s opinion: “To fulfill its mission, the military ‘must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.’ ”

The court, Justice O’Connor said, agreed with Mr. Phillips that “ ‘it requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.’ ”

In all, considering the statements at the oral argument and Justice O’Connor’s opinion, the submission from the retired officers, as set in motion by Mr. Ford, may have been the most influential amicus brief in the history of the Supreme Court.

By Mr. Ford’s later years, as the Michigan affirmative action controversy illustrated, the former president had fallen out of step with the strong conservative drift of the Republican Party. But more important, the Michigan case, and Mr. Ford’s role in it, suggest that his views remained where they had long been — in the center of the country, politically and geographically — and by staying true to his beliefs, he left a quiet and powerful legacy for the university and the country that he loved.