The Wrong Choice

May 23, 1993

The Clinton administration may be on the verge of undermining federal enforcement of civil rights after 12 years of Reagan-Bush neglect and regression. Instead of restoring the Justice Department's Civil Rights Division to its proper role as vigorous guardian of minority rights, it is about to embroil that beleaguered office in a troubling quarrel. President Clinton has nominated a brilliant but provocative law professor, Lani Guinier, to become assistant attorney general in charge of civil rights.

So provocative that even so liberal a Democrat as Sen. Patrick Leahy of Vermont, a member of the Senate Judiciary Committee, has indicated he may not be able to support her confirmation. Committee Chairman Joseph Biden of Delaware, also a Democrat, says her writings "give me great concern." Ms. Guinier, a contemporary of the president and Hillary Rodham Clinton at Yale Law School and a personal friend thereafter, has written extensively about race, politics and government. One of her legal articles in particular is causing a stir in Washington circles -- in both parties.

It appeared in the Michigan Law Review in 1991 and makes some observations about minority voting rights that can at best be described as provocative and at worst can be described as attacking the foundation of representative government. The concept of the Voting Rights Act, that minorities must be clustered in election districts to maximize their political strength, is not good enough, Professor Guinier argues. And African-American politicians who are elected with white as well as black support are not adequate exponents of minority political views. Furthermore, minorities, she argues, should have a veto against the majority in matters of critical interest to them.

This is pretty extreme stuff, especially that last. The idea that the majority may not violate a minority's basic rights is embedded in the Constitution. But to argue that a relatively small minority should routinely prevail over the majority in certain situations turns America's representative form of government on its head. Should tobacco farmers, who feel pretty aggrieved these days, have a veto over anti-smoking legislation? A Wall Street Journal writer likens Ms. Guinier's argument to the theories of the slave-owning South's leading political theorist, John C. Calhoun.

This could turn out to be a serious blunder by the administration. Ms. Guinier's views are perfectly suitable in law reviews or as private advocacy in court. This nation is not yet so secure in its protection of minorities that there is no need for pressure to strengthen it. But by nominating Ms. Guinier, Mr. Clinton has made her the issue -- not better enforcement of civil rights laws -- and has presented foes and friends with a target they cannot ignore or miss. This is an unwise appointment.

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