Last week, Sen. Sheldon Whitehouse, D-R.I., harangued Judge Brett Kavanaugh over nonprofit, public-interest law firms that “get money from right-wing conservative and corporate interests and look for cases around the country [where] the true party [in] interest is actually not the named party before the court but rather the legal group that has hired the client and brought them to the court more or less as a prop.” This is not the first time Whitehouse has tried to tarnish the nonprofit legal group I lead — he sought to sully us as part of a cabal of climate change deniers — so I will respond.
I could point out that both President Ronald Reagan and Justice Ruth Bader Ginsburg praised our work, but instead, I will present some of our clients — the furthest thing possible from “props.”
In 1989, Randy and Valery Pech of Colorado Springs walked into my Denver office. Their tiny, family-owned business, which installs guardrails on federal highway projects, lost a major, bet-the-company contract. Although their bid was the lowest, it was rejected because a $10,000 bribe paid by the federal government induced the prime contractor to award the contract not to Randy and Valery’s Adarand Constructors, Inc., but to the lowest minority bidder. “Is that constitutional?” they asked. I said “No,” but it will take a trip to the Supreme Court of the United States to get that answer. Over the next 12 years, we made that trip three times, in 1995, 2000, and 2001. We made headlines and history, and changed how the equal protection guarantee applies to the federal government. As a result, what Justice Antonin Scalia wrote in his concurring opinion is the law of the land: “In the eyes of government, we are just one race here. It is American.” We were with Randy and Valery every step of the way, gave them our best counsel, and did what they asked us to do.
Meanwhile, in 1993, at a property rights gathering near the Denver airport, a booth displayed a topographical map of a forested, lake-strewn region at the western tip of the Upper Peninsula of Michigan and a home-made banner, “Help Us Straighten Out Crooked Lake.” “I’ll bite,” I told the woman at the booth. “How do we straighten out Crooked Lake?” Kathy Stupak-Thrall’s grandfather had built a cabin near Crooked Lake where she and her husband Ben summered. But one of her neighbors, the U.S. Forest Service, thought it had the right to regulate her use of the lake contrary to 156 years of Michigan law. Our journey took us to a federal court in Michigan, the U.S. Court of Appeals for the 6th Circuit in Cincinnati, including a rare en banc hearing, and back to Michigan where her property rights, and those of her neighbors, a World War II disabled veteran and his wife, were vindicated. When, in 2013, the Forest Service, despite Kathy’s victory, resumed its mischief, we represented David and Pamela Herr. Their landmark victory at the 6th Circuit is at the Supreme Court, where we expect they will reject an attempt by environmental groups to reverse it.
In February 2006, I received an email from Bob Johnson, president of the Fox Park Home Owners Association in Wyoming. “Since you graduated from the [University of Wyoming] Law School, you probably know where our community is located,” he wrote. Of course, I did. He advised me that a neighbor, Marvin Brandt, had been threatened by officials from the U.S. Forest Service who told him, regarding a former railroad right-of-way that had reverted to him when the railroad left town, “You got it. We want it. And if we have to take you all the way to the Supreme Court we plan to get it.” We agreed to represent Marvin, and, when later in 2006, the federal government sued him, we counterclaimed and defended his property rights. In 2014, we reached the Supreme Court, where we won an 8-1 victory for him that Justice Stephen Breyer speculated during oral arguments would benefit “millions.” Three years later, in the West where it all began, Marvin got his land back.
Back in Washington, D.C., Kavanaugh answered Whitehouse’s question: “I think public interest litigation groups span the ideological spectrum that look for cases to weigh in on [and] try to identify suitable plaintiffs to [file] challenge[s].” This was, of course, accurate. I would go further, however, at least for the men and women we have represented over the decades. Hardly “props,” they seek, not to further some grand political agenda, but simply to get the government off their backs so they may go on with their lives. If they seek anything else, it is to ensure, after all their years in courtrooms, that others need not endure the indignities inflicted on them by mischief makers, schemers, and buttinskies like Sen. Whitehouse.
William Perry Pendley is a contributor to the Washington Examiner‘s Beltway Confidential blog. He is president of the Mountain States Legal Foundation, has argued cases before the Supreme Court and worked in the Department of the Interior during the Reagan administration. He is the author of Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today.
