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On April 1, 2003, Maureen Mahoney was doubly prepared to defend the University of Michigan Law School’s affirmative action program before the Supreme Court. Mahoney had developed two different ways of getting into her argument — and she wasn’t going to select one until she had first listened carefully to the justices’ questions to the lawyer for the other side in Grutter v. Bollinger. “Whenever you go second in an argument, you have to be very attentive to what the Court is asking, and be prepared to adjust based on what the Court is asking,” says Mahoney, a partner in the D.C. office of Latham & Watkins. In the Michigan case, Mahoney was prepared to open with an argument in favor of the benefits of racial diversity. But when the justices’ questions showed they were surprisingly comfortable with the notion that diversity has benefits, she says, “I decided to try a different opening.” Mahoney chose instead to begin with “the fact that there were no race-neutral alternatives” to achieve the law school’s goals. Her efforts were rewarded. On June 23, 2003, the Supreme Court found that the law school’s admissions policy did not violate the Constitution. The decision, handed down by a court not noted for its liberalism, gave a ringing endorsement to affirmative action programs. “Maureen did a spectacular job for us,” says the university’s vice president and general counsel, Marvin Krislov. “She focused on trying to find the hardest questions and the best possible answers. We worked through the answers in a very thorough way. And she was delightful to work with.” Mahoney, a Republican and a one-time judicial nominee of the first President George Bush, might seem an unusual choice to defend affirmative action. But for the university, it was the case of the century, and Mahoney is often on the short list for those who need to find a top appellate lawyer. Last October, Mahoney argued in the U.S. Court of Appeals for the 5th Circuit on behalf of Arthur Andersen as the accounting firm tried to overturn its conviction for obstruction of justice in the Enron scandal. Andersen is now down to about 250 employees but is still pursuing its efforts in court. The appeals panel has not yet ruled. Companies such as Union Pacific Railroad, General Cigar, DuPont, Denny’s, and HCA have recently hired Mahoney for appellate cases. Says Carol Harris, Union Pacific’s general commerce counsel: “Maureen was fabulous [in winning a crucial 9th Circuit regulatory case for the company]. Of all the outside lawyers I’ve ever worked with, she was the most rigorous in her approach to understanding our complex industry, and she pushed us the hardest to test the soundness of our arguments.” In 1999, Mahoney spearheaded the successful Supreme Court effort by the U.S. House of Representatives to strike down the use of statistical sampling methods by the Census Bureau for the 2000 census. On the losing side of the 5-4 ruling was then- Solicitor General Seth Waxman. The 49-year-old Mahoney, a graduate of the University of Chicago Law School, clerked for 7th Circuit Judge Robert Sprecher and for then Associate Justice William Rehnquist. She joined Latham as an associate in 1980. Mahoney became a partner in Latham’s appellate group, but left in 1991 to become a deputy solicitor general in the first Bush administration. While she was serving in that post, she was nominated for a U.S. district court judgeship in the Eastern District of Virginia, but the Senate did not act on the nomination in the election year of 1992. Mahoney now heads Latham’s appellate and constitutional practice. Her Michigan argument was her 12th before the high court. “ One of the secrets of appellate advocacy,” Mahoney says, “is excessive preparation, beyond the point where you think you’re prepared. It’s hard to do too much.”

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