The University of Texas at Austin has retained Latham & Watkins to defend its affirmative action policy before the U.S. Supreme Court in Fisher v. University of Texas. The team of attorneys on the case includes former Solicitor General Greg Garre and former Deputy Solicitor General Maureen Mahoney. It’s hard to think of a legal team more able to defend the university’s program. Both Garre and Mahoney served in Republican administrations and, perhaps more significantly, Mahoney successfully defended the University of Michigan law school’s affirmative action program in Grutter v. Bollinger. (Mahoney was also the subject of Supreme Court nomination buzz and has been characterized as the “female John Roberts.” Some speculate her success in Grutter may have been a strike against her nomination.)
The decision to hire Garre and Mahoney is understandable, the size of the retainer has raised some eyebrows. The choice to eschew representation by the state’s Attorney General and retain outside counsel will cost the University approximately $1 million — money the university insists will not come out of state appropriations or tuition revenues, but “discretionary funds” (as if the money isn’t fungible). John Rosenberg comments:
Funny, I thought the taxpayers of Texas had already paid not inconsiderable sums to support a large and highly regarded law school at the University of Texas, a law school whose constitutional lawyers are no doubt well schooled in all the loopholes of anti-discrimination law — they do, after all, have both institutional and personal memory of their school’s effort to deny admission to Cheryl Hopwood (an effort, by the way, that was represented pro bono by Vinson and Elkins). In addition, Texans also already pay to support the office and large staff of the state’s Attorney General.
UPDATE: Some in the comments have asked how this fee arrangement compares with other recent instances in which government entities have hired elite Supreme Court counsel. I don’t know what’s typical, but there have been several reports about the fees states and other government actors have paid Paul Clement for his recent work. For representing over two-dozen states in the 11th Circuit and Supreme Court Clement received a discounted fee of $250,000. I have not found a direct report on the fees for defending Arizona’s immigration law, but according to these reports, these fees are being paid from an outside fund set up to raise money to defend the law. And Clement’s work for the House of Representatives defending the Defense of Marriage Act in multiple cases pending in lower courts was initially capped at $500,000, but has since been raised to $750,000 and could go as high as $1.5 million.