Patrick's nomination: Clinton learns lessons



WASHINGTON -- President Clinton seems to have gotten it right at last with the choice of Deval L. Patrick of Boston to head the Justice Department's civil rights division.

At the most obvious level, he has chosen a lawyer with broad experience in the field and a reputation as a top-flight litigator. More importantly, however, the president seems to have come to understand that there is simply no choice for that particular job that is going to be greeted with universal approval -- a fact of political life that might have deterred him from throwing Lani Guinier over the side last June.

Told that a conservative critic already had labeled Patrick "a stealth Guinier," the president responded hotly: "The truth is a lot of those people are going to be exposed because they never believed in the civil rights laws, they never believed in equal opportunity, they never lifted a finger to give anybody of a minority race a chance in this country."

If Clinton had shown the same hard edge after he nominated Lani Guinier, she might very well have been serving in the civil rights post for several months now. The president decided instead that the writings of his old friend Guinier on civil rights issues were too controversial for him to defend and dropped her, a decision that caused widespread muttering among black political leaders.

In fact, there were members of the Senate Judiciary Committee, both Republican and Democratic, who said privately after the episode that Guinier might very well have been confirmed if, first, Clinton had given her strong support and, second, Guinier herself had been given the opportunity to discuss her writing in confirmation hearings.

Their view was that the articles that raised questions were the kind of academic musing one might expect from an academic like Guinier, a law professor at the University of Pennsylvania and one-time colleague of Deval Patrick with the Legal Defense Fund (LDF) of the National Association for the Advancement of Colored People. The irony of Clinton's choosing another LDF lawyer was not lost on Guinier. "It's not surprising because I am in the mainstream of civil rights," she told the Washington Post.

That, of course, is exactly the point. The lines on civil rights issues have hardened once again over the past 10 to 15 years. It has become more politically respectable for conservatives to question positions that were essentially exempt from criticism when memories of the civil rights movement -- and the conditions that required it -- were fresh.

To some black leaders, Clinton seemed to be yielding to these new political realities when he withdrew Guinier without even a hearing. Indeed, it became clear that the president would have been more reassuring to those blacks if he had allowed the confirmation process to go ahead even if Guinier finally were rejected by the Senate.

Instead, the White House has been involved for months in trying to find a suitable replacement who would both be capable of handling the job at the Justice Department and getting through the approval process with minimal controversy. The first choice was John Payton, the corporation counsel for the District of Columbia and a highly respected lawyer.

But the discovery that Payton had failed to vote in several D.C. elections in the last few years raised questions in the Congressional Black Caucus, some of whose members had spent their youth trying to assure the right to vote for all Americans. So Payton was shelved before ever being nominated, and the search resumed.

The months required to produce Patrick suggests that the White House has taken pains this time to get it right. After the recent embarrassment in trying to find a new secretary of defense, the last thing Clinton needs is another problem with a prominent appointee at Justice.

But the prospect always has been that any nominee who would be equipped for the post and acceptable to the black political leadership would evoke some howls from conservatives. Clinton now has come to recognize that reality and the fact that there are times a president has to make decisions that aren't universally applauded.

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