Crowning A 'Quota Queen'?

In Washington, a favorite game is to "bork" an enemy, as in, "We borked that right-wing nut." Conservatives have been plotting their revenge ever since triumphant Democrats made Supreme Court nominee Robert Bork's name a verb in 1987. To right-wingers, the silver lining in George Bush's defeat is the chance to bork one of Bill Clinton's liberal nominees -payback for the way Senate Democrats treated Bork, John Tower and Clarence Thomas. After civil-rights activists torpedoed one of Bush's judicial nominations last year, The Wall Street Journal editorialized: "The wheels will turn the day someone from the NAACP Legal Defense Fund is nominated" to a high government job. That day is here. Members of the Senate Judiciary Committee, meet Lani Guinier.

Named to the Justice Department's top civil-rights post, Guinier is a former LDF lawyer and a voting-rights scholar who has known Bill and Hillary Clinton since their days at Yale Law. But she has staked out a position on minority rights that troubles even some centrists. She would use the Voting Rights Act, which is intended to help blacks get elected, to guarantee that state and local lawmakers protect black interests. There has long been an argument whether the law should offer blacks equal opportunity-to win a job or a contract, say-or actually guarantee the result by racial quotas. To Guinier, it's not enough for blacks to win a certain number of seats in the legislature. In states or cities where there is strong evidence that lawmakers vote along racial lines, she would guarantee the white-dominated council set aside a share of the legislative pie for minorities. Guinier would do this by requiring a "minority veto"-giving black lawmakers the power to obstruct bills they do not like. "In a racially divided society," she wrote last year, "majority rule is not a reliable instrument of democracy."

She would further strengthen minorities' power by "cumulative voting." In an election for, say, five seats, voters would get five ballots. They could split them among several candidates, or cast them all for one, increasing their power to elect a special-interest or minority representative.

Friends and colleagues downplay her most controversial writings. (Guinier declined to speak to NEWSWEEK.) "She's talking about very experimental stuff," says Pamela Karlan, a University of Virginia law professor who used to work with Guinier. "She's trying to suggest issues for people to think about." Maybe, but Republicans on the Judiciary Committee will attack her as a "quota queen" and for trying to fatten the welfare state. Guinier defines health care, job training and housing as "basic entitlements" that should come to citizens as a legal right. With confirmation hearings tentatively set for next month, Guinier's opponents are giddy. "I am hoping to be her worst nightmare," vows Clint Bolick, a former Reagan Justice official. But her critics may be stymied by the ghost of Anita Hill. "Some Republicans are worried about beating up on a black woman," says a Senate source.

Why did Clinon nominate someone whom advisers knew would be a lightning rod? Guinier, who worked in the Carter Justice Department and at LDF before becoming a law professor at the University of Pennsylvania, has had a lock on the nomination from the beginning. Clinton saved this slot for her months ago, even as he fumbled for an attorney general. The Clintons came to know Guinier well when, at LDF, she sued Arkansas over its voter-registration practices. Clinton holds no grudges: announcing her nomination, he said that "she once sued me; [naming her] shows how broad-minded I am." (As governor, Clinton settled the case.)

If confirmed, Guinier would take civilrights policy in a new direction. Under Republicans, the Justice Department championed the cause of whites claiming reverse discrimination. Guinier would return the focus to African-Americans, and may try to introduce minority vetos to remedy voting-rights abuses. White House officials are trying to distance the president from what they concede are "provocative, cutting-edge" ideas. "It doesn't matter what Lani thinks," assures one aide. "Bill Clinton is a moderate on these issues."

The controversy comes at a bad time for Clinton. He needs to conserve his Capitol Hill chits to push for domestic initiatives and his Bosnia policy. He already has one controversial nomination before the Judiciary Committee: Assistant Attorney General-designate Webster Hubbell, who is under fire for his membership in an all-white Little Rock country club. And this week the president is expected to announce a replacement for retiring Supreme Court Justice Byron White. If conservatives find the high-court nominee vulnerable, the fight over Guinier may be just a warm-up for the main bout.