Constitutional Opinions / Lani Meets Her Quota

...In a 1989 article, Guinier suggested that in order to promote "diversity in the appointment process" the Senate Judiciary Committee "should by Terry Eastland begin evaluating federal judicial nominations with reference to specific goals for increasing non-white nominees" and should refuse to confirm any white nominee until a "sufficient number" of nonwhite nominations were made—"such as twenty or thirty...

...Still, in these writings Guinier does embrace the concept of "race-conscious" remedies...

...He was the victim of a racial quota, a quota of one," Guinier said...

...goals or quotas...

...The most they can hope is that in sending Guinier back to Pennsylvania, Clinton has postponed having to decide between his stated commitment to diversity and his stated opposition to quotas, although he will, be hard-pressed to postpone this decision, since at some point he'll have to fill the seat he originally saved for Guinier...

...It is no wonder that Guinier, graduate of the Carter civil rights division and the NAACP Legal Defense and Educational Fund, was widely regarded as "the consensus civil rights choice" to be assistant attorney general for civil rights...

...After leaving the Justice Department, Guinier worked as a voting rights litigator for the NAACP Legal Defense and Educational Fund for almost eight years...

...Indeed, in his public statement and then over dinner in the White House with private guests, including journalists, Clinton scorned the Bolick piece, together with its headline, and defended Guinier, a law professor at the University of Pennsylvania...

...Still, the fund's record in that area is worth reporting...

...W as Clinton right...

...Roughly equal outcomes, whether pursued in order to remedy proven or stipulated discrimination, or merely to secure "diversity," require counting by race, a.k.a...

...Clinton, if one is to trust his word, Terry Eastland is executive editor of Forbes MediaGuide and a fellow with the Ethics and Public Policy Center in Washington...

...But savvy politicians were aware that a confirmation hearing would bring quotas to the surface...

...Quota Queen" succeeded in publicly defining Guinier and in galvanizing Beltway politics that culminated, five weeks later, in Clinton's pulling her nomination...

...Little was said about quotas in the affirmative-action contexts in which the term is typically used—university admissions and financial aid, appointments to public office, and public and private employment...

...This term was not actually in Bolick's piece, but it proved more important than his text...

...sent Guinier packing because he disagreed with some of her voting rights views, not because he believed she endorses quotas, which he routinely says he opposes...

...Unfortunately, the reporters at Guinier's press conference did not ask her about the 1989 article...

...Guinier disagreed with Clinton's assessment of her voting rights views, but in effect she agreed with his defense of her on quotas...

...Guinier's writings do not treat affirmative action in admissions or employment—except to the extent that they bash the Reagan administration for nonenforcement of relevant laws...

...During those weeks, Guinier's views on voting rights, expressed in a series of recent law review articles, were disputed by not only conservative Republicans like Bolick but also moderate to liberal Democrats, including Senator David Boren, leaving her seemingly unconfirmable...

...The DLC nightmare must surely be that on quotas Clinton is fooling himself, that he is more like Guinier than he knows...

...In her 1989 article, Guinier composed a footnote that I think forecast how she would have proceeded in enforcing the civil rights laws...

...Now there would be one for Counselor Gergen to explain...

...As the New York Times reported after the nomination was pulled, a hearing "would have focused on affirmative action and race-based quotas, two notions Democrats in the Senate and the White House would like to avoid...

...I'd say it's fair to conclude that the fund's "opposition" to quotas is never present-tensed, never in the real world in which the issue is joined...

...The important issue is how much race-consciousness in employment cases she might have endorsed as a successor to Reynolds, and whether that race-consciousness would have expressed itself in numerical remedies for proven discrimination requiring preferential treatment on the basis of race—which is to say, goals or quotas...

...And prior to becoming a law professor in 1988, she worked in offices that routinely advocated, or defended, quotas...

...Even William Bradford Reynolds, Reagan's civil rights division chief, whom Guinier vilifies repeatedly in her work, accepted some degree of race-consciousness in developing remedies for job discrimination...

...I have never been in favor of quotas...

...Of course, there is a DLC dream that is even more nightmarish: that on the quota issue Clinton is just like Guinier, as in fact he knows...

...By 1985, according to the Justice Department press release issued at the time, those localities were to seek "police and fire forces that are approximately 17 percent black—the black percentage of the labor force of the Nashville metropolitan area...

...Again, so far as I have been able to determine, the NAACP's legal arm has never opposed a goal or quota litigated in the Supreme Court, and in the Supreme Court cases in which it has participated—taking those from the eighties as a useful sampling—it has vigorously defended every employment racial preference under review...

...Given her history and associations, I can only believe Guinier would have pursued numerical devices as head of the civil rights division...

...Such goals, as Days said in a 1980 speech, are "a lawful and appropriate remedy to cure past discriminatory practices which excluded minorities and women from obtaining positions...

...But what does Clinton really think about quotas or, if he prefers not to use the word, racial preferences, whether as a remedy for proven discrimination or a non-remedial device for promoting diversity...

...As an example, in the spring of 1980, the civil rights division forced the police and fire departments of Nashville–Davidson County, Tennessee, to establish "annual and five-year hiring goals...

...Where is his center on this rather large matter...

...Guinier, in fact, has been on the record in favor of at least one thing that sure looks like a quota...

...No doubt her response would have been akin to those heard for more than a decade now by her colleagues in the civil rights industry whenever they are accused of embracing quotas: she would have defined quota in such a narrow or unreal way (e.g., Harvard circa 1929) as to make it meaningless...

...From 1977 to 1981, Guinier worked in the Carter civil rights division as a special assistant to Drew Days, Reynolds's immediate predecessor...

...Cantu, by the way, escaped scrutiny and survived...

...After all, his attorney general is Janet Reno, who endorsed minority business set-asides (another euphemism for quotas) in Dade County, and who vigorously championed Guinier's nomination...

...Al From and Will Marshall, both "new" Democrats, are deceived if they think the Guinier episode means the president has resolved the quota issue in their favor...

...E xactly one day after President Clinton announced Lani Guinier as his nominee to head the Justice Department's civil rights division, the Wall Street Journal published an op-ed sharply criticizing Guinier and, to a lesser extent, Norma Cantu, who earlier had been nominated as assistant secretary for civil rights in the Education Department...

...In enforcing Title VII—the job discrimination statute—against public employers, the division routinely entered into consent decrees that required remedial hiring or promotion goals...

...As far as I have been able to determine, she did not participate in any of the Legal Defense and Educational Fund filings in admissions or employment cases during her time there...

...In it, she said the term "anti-discrimination" incorporates "aresult-oriented inquiry, in which roughly equal outcomes, not merely an apparently fair process, are the goal...

...It does not appear that the fund, which says it's opposed to quotas, has ever found a number—a quota—it can oppose in litigation...

...She has been subject to a vicious series of willful distortions on many issues, including the quota issue," he said...

...n withdrawing Guinier's nomination, Clinton made much of how his decision was dictated by "my center," not the political center...

...We oppose quotas that create racial, gender, or ethnic preferences,"the Democratic Leadership Council stated in 1991...

...Other than the quota Guinier said her father encountered at Harvard, I can find no other quota or goal or racial preference that she has ever publicly opposed...

...The piece, by lawyer Clinton Bolick of the Institute for Justice, was headlined: "Clinton's Quota Queens...

...That is, was Guinier really not a quota advocate...

...If this is not a quota, then will someone please advise what is...

...Also, there is Clinton's education bill, which would revive the discredited practice of race-norming, a key element in the quota culture...

...It is more accurate, however, to say she has never been in favor of the Harvard quota her father encountered—a quota nowhere today to be found at any public or publicly assisted private university and which, in any event, no one would favor...

...In a prepared statement at her press conference the day after her nomination was pulled, she told reporters that when her father matriculated at Harvard College in 1929, the school denied her father financial aid because another black student had already been awarded a full scholarship, and would not allow him to live in a campus dormitory because no black, except the relative of a United States senator, had ever resided there...

...and his solicitor general is none other than Drew Days, supporter of "numerical goals" and Guinier's boss during the Carter years...