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WASHINGTON — It began four years ago in a private conversation between James Cannon, a retired journalist and political operative, and former President Gerald Ford, whom Cannon served as a domestic affairs assistant. Cannon was Ford’s biographer and remains his friend. He is also a former chairman of the board of visitors of the U.S. Naval Academy in Annapolis. That chat between two political old-timers in the summer of 1999, over dinner in Ann Arbor, Mich., proved to be the catalyst for what may be remembered as one of the most important amicus curiae briefs ever submitted to the Supreme Court. The pair of cases testing undergraduate and law school affirmative action at the University of Michigan drew an avalanche of amicus briefs, on both sides of the issue. But after the Supreme Court’s landmark June 23 ruling, a brief filed by 29 high-ranking former leaders of the U.S. military stands out for having had a direct impact. “It was a very unusual amicus brief,” says Marvin Krislov, the university’s vice president and general counsel, who played a major role in coordinating the brief-writing process. “It evidently made a difference to the court.” When Cannon and Ford met in Ann Arbor, trial courts had not yet even ruled. To many, the university’s legal position seemed precarious. “I talked with President Ford about the suits that had been filed,” says Cannon, now 85. At the time, Ford, a 1935 graduate of the University of Michigan, had just written an op-ed article supporting the affirmative action programs at his alma mater, which was published in The New York Times in August 1999. Cannon says the two men agreed at the dinner that a court-ordered end to minority preference programs at Michigan could be a “real handicap” for the university, and that they should try to take steps to shore up the school’s position. Former President Ford confirms this account. “I got involved very early in supporting the university,” Ford says. Soon thereafter, Cannon met with Lee Bollinger, then the president of the university, and raised the issue with him. Cannon says his own “instant reaction” upon discussing the cases with Bollinger was that a ruling against Michigan would not only hurt the university but would also be “devastating to the continued efforts by the service academies to recruit and train minorities.” “I tried to think of a way to file a separate brief,” says Cannon, who is not a lawyer, but is well-versed on military concerns from his stint on the board of the Naval Academy. “Bollinger liked my idea, and I continued to keep him informed.” Krislov, the general counsel, recalls, “Jim Cannon had serious concerns about the cohesiveness of the military [if affirmative action were curtailed]. There was serious concern in military circles that the military would not be able to do their jobs. It all started from this discussion.” The military brief, filed in February 2003, strongly asserted that maintaining racial diversity programs in higher education is crucial to the needs of all branches of the service and thus to national security. This turned out to be a central point in Justice Sandra Day O’Connor’s 5-4 majority opinion last week that upheld the law school’s affirmative action plan in Grutter v. Bollinger. Signers of the brief, in addition to Cannon, included such heavy hitters as retired Gen. Norman Schwartzkopf, former Defense Secretary William Cohen, and Sen. Carl Levin, D-Mich., a former chairman of the Senate Armed Services Committee. The final lineup of former Defense Department and military officials wasn’t exactly what Cannon originally had in mind. In October 2002, after the lower courts had ruled on the Michigan cases but before the Supreme Court had agreed to hear them, Cannon stepped into action. “I went to the Pentagon and spoke with the assistant secretary for manpower,” Cannon says. “I said, ‘You ought to initiate an amicus brief.’” At the time, however, the Bush administration had not yet formulated its position on the Michigan cases. The Defense Department rejected Cannon’s proposal. “[I] told them I would go ahead and do it anyway,” Cannon says. Cannon had remained in touch with university GC Krislov. Cannon suggested that if current Pentagon officials couldn’t sign a brief, former leaders of the U.S. military, both uniformed and civilian, certainly could. On Dec. 2, 2002, the Supreme Court agreed to hear the case, and things started moving quickly. Krislov, 42, a former associate White House counsel under President Bill Clinton, reached out to Joe Reeder, a former undersecretary of the Army whom he knew from his days in government. He asked Reeder, the managing partner of the D.C. office of Greenberg Traurig, to help put an amicus brief together and to find the best possible retired military leaders to sign on. “I worked very hard to bring in people who were household names and whose reputations were unimpeachable. They included Republicans, Democrats, apolitical people — a wide range, so that no one could possibly say this is a partisan effort,” Reeder says. At the same time, the Michigan lawyers decided they also needed a leading Supreme Court advocate to be part of the effort to write an amicus brief. The university had already enlisted two teams from elite firms to argue its own case — a group from Wilmer, Cutler & Pickering, led by John Payton, and one from Latham & Watkins, led by Maureen Mahoney. For the amicus brief, Mahoney recommended Sidley Austin Brown & Wood, where Carter Phillips leads the appellate practice. Mahoney spoke with Phillips and with his partner Virginia Seitz, and they agreed to participate on a pro bono basis. Seitz took the lead in writing the brief, while Reeder and Cannon used their extensive contacts in the military to bring new signers in. “Joe Reeder is the man who moved this from my modest idea to a dynamic case,” says Cannon, a former correspondent for Time and Newsweek. “I began to realize that there was a force behind this movement.” Krislov kept the process moving smoothly, and some of the former generals themselves contributed suggestions to the brief. Cannon wrote a two-page memorandum to Seitz with his own ideas. “We had two large research tasks,” Seitz says. “We had to figure out exactly what the affirmative action policies were in each branch of the military, and we had to review the history of the desegregation of the military to understand the relevance of these policies.” Payton says that at one meeting, the generals told the lawyers that half the nation’s officer corps comes from the ROTC. “I stopped the meeting at that point,” Payton recalls. “I told them, ‘I see that you’re depending on student bodies like that of Michigan to develop your officers.’” Parts of the brief were rewritten to emphasize the need for diversity in ROTC programs, as well as in the service academies. At oral argument on April 1, the justices showed that they had read the military brief closely. As soon as he began his argument, Solicitor General Theodore Olson was peppered with questions from several justices about the amicus brief. Justice Ruth Bader Ginsburg asked Olson if he recognized that “all of the military academies do have race preference programs in admissions.” He replied, “The Coast Guard does not. . . . I do acknowledge, Justice Ginsburg, that the other academies are doing so.” The O’Connor decision handed down June 23 reflected the military leaders’ arguments. “High-ranking retired officers and civilian leaders of the United States military assert that . . . a ‘highly qualified, racially diverse officer corps is essential to the military’s ability to fulfill its principal mission to provide national security,’” O’Connor noted. Reeder and the others who put the brief together could not have asked for a better result. “It’s kind of hard to ignore 29 people who are four-star generals or on a similar level,” says Reeder. “Nor should anyone ignore what they have to say.” Jonathan Groner is editor at large at Legal Times, a Recorder affiliate based in Washington, D.C.

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