The Fear of Guinier


June 19, 1993|By DANIEL BERGER

Most of the people angry with President Clinton for dumping Lani Guinier had never heard of her before he nominated her to high office. What little they know of her writing comes from its ridiculers.

Mr. Clinton picked her for the wrong reason, because she is an old crony. Her actual qualifications to be assistant attorney general for civil rights are, however, were immense.

Rarely if ever has a new assistant attorney general for civil rights (1) already worked in the division; (2) spent a career litigating in the field and (3) written copiously in the law journals about it. Most nominees come from some other branch of law with no experience in civil rights.

There is a disconnection between campus and non-academic American thinking in many areas. That is at least part of what came to grief in this appointment.

Professor Guinier has written long law review articles on voting rights that propose substitutions for current remedies. Wise or not, she got the ideas for cumulative voting and super-majorities from American corporate life and U.S. Senate rules, not Red Russia.

These are interesting ideas worth airing. They are not law, not Clinton administration policy and most probably ought not to become law or practice. What would she do about her ideas if she were put in charge of enforcement?

It is a good question, one she should have been made to answer. That's what a Senate confirmation hearing would properly have explored. It would not have been a sensitive forum. She could not have expected kid glove treatment. But she wanted the hearing.

The campaign against her began the moment her name surfaced. The White House is run by campaigners who got Mr. Clinton elected by never allowing the opposition to define him, by faxing the rebuttal all over the country the moment an attack was heard.

That's what they didn't do for Lani Guinier. These same people allowed a Wall Street Journal op-ed contributor to define her. They would not rebut or let her rebut before a Senate hearing, which they insured was never held.

So they let hostile ideologues define her. In the Nixon administration, such treatment was called twisting in the wind.

A lot of apologists cite the Robert Bork precedent. Wrong. Mr. Bork, his right-wing views fully known, was confirmed without difficulty to be solicitor general, the comparable job. The idea was that the president was entitled to whom he wanted barring gross unqualification.

Then Mr. Bork was confirmed to be an appeals court judge. It was only the Supreme Court nomination that brought out the firing squad.

President Clinton said he withdrew Ms. Guinier's name because he could not defend everything she wrote. Does anyone think President Reagan could have defended everything Judge Bork wrote?

Mr. Clinton was more truthful when he said he withdrew the nomination because it would have been racially divisive. It might have been. He is right not to want that.

But insiders say he withdrew her name to appease Democratic members of the Senate Judiciary Committee, who were uncomfortable about grilling a black female after the Anita Hill business. This elevates the Guinier affair to operatic farce. It needs only patter by Gilbert and music by Sullivan.

What those senators threatened or promised is unknown. Which makes it hard to say whether the president was right to deal. But the Congressional Black Caucus was right to make trouble. They should want President Clinton to worry about them more than about Joe Biden. That's their job.

The president should have realized -- perhaps did -- that all the scorn heaped on Ms. Guinier as "quota queen" was not really sexist, racist or even aimed at her. He was the real target. That makes you wonder why he gave in.

I have no opinion whether Ms. Guinier should have become assistant attorney general for civil rights. But having named her, the president had no reason to withdraw her name before a hearing. Doing so was showing fear to the hostile congressional dogs.

Unlike the forgotten Zoe Baird, Lani Guinier will remain news. Whoever mocked her looks, her hair and her name was stupid. Those things help people remember her.

Bill is going to be sorry he made her a celebrity and then dumped her. She is loquacious, and she is still out there.

Daniel Berger writes editorials for The Baltimore Sun.

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