From Legal Scholar to Quota Queen

Three days after President Clinton withdrew the nomination of Lani Guinier to be head of the Justice Department's Civil Rights Division, The Washington Post published a profile of her chief tormentor, conservative activist Clint Bolick. In the June 6 article, staff writer Michael Isikoff described how Bolick and a colleague at the "libertarian-oriented" Institute for Justice had sought to defeat the nomination by "zeroing in on controversial passages" in Guinier's scholarly articles. They "produced a drumbeat of press releases, reports, and op-ed articles that portrayed the University of Pennsylvania law professor as a pro-quota, left-wing 'extremist' bent on undermining democratic principles," Isikoff wrote, "labels that stuck and helped fuel the debate over the Guinier nomination in terms that made if difficult for her allies to recover."

Fifteen days earlier, in t he Post's first major ariticle on the Guinier controversy, Isikoff had himself been part of that drumbeat, quoting conservatives' assessments of Guinier as a pro-quota, "'extreme' left-wing activist." To explain her "heavily footnoted law review articles" that "are not easily summarized," he had cited several direct quotes from her articles -- every one of which had been cited by Bolick in a Wall Street Journal op-ed piece on April 30, the day after Clinton nominated Guinier, or by conservative Journal columnist Paul A. Gigot in a May 7 column.

"The Wall Street Journal and Clint Bolick really went after her and managed to kill off this nomination," says David Savage, the Los Angeles Times's Supreme Court reporter, who read her articles and came to the conclusion that her "writing wasn't radical or off the wall."

For his part, Post reporter Isikoff defends his use of the quotations, saying he spent "about an hour" with the two law review articles, totaling 119 pages, to get "enough of a flavor" to make sure the "quotes in there were not twisted out of context." To his credit, the Post reporter did not use one quote Bolick attributed to Guinier, in which she was in fact summarizing someone else's views, and he did quote two of Guinier's former colleagues praising the nominee.

Isikoff concedes, however, that his article didn't present a balanced summary of Guinier's complex views on achieving greater minority representation under the Voting Rights Act. That, he says, wasn't his job. "This is not a case where newspaper reporters set the agenda," he explains. "What I was doing was reporting a controversy. My job was to explain to our readers what the controversy was about. . . . The excerpts merely explain what it was she had written that had generated controversy."

Of course, political activists, of either the right or the left, can almost always generate controversy, especially if the person in the spotlight is the author of long, complicated, scholarly articles. "It's impossible to write a 100-page article in which someone can't take something out which damages you, especially when the topic is race," observes Pamela Karlan, an associate professor of law at the University of Virginia and a former colleague of Guinier's at the NAACP's Legal Defense and Educational Fund. She and other law professors worry that because of the treatment Guinier received other scholars may hesitate to propose innovative ideas for fear of being disqualified from ever serving in government, thus limiting the pool of academics eligible for top government appointments to the most timid and unoriginal scholars.

Scholarly articles should not, of course, be immune from scrutiny in a confirmation battle. But two standards ought to be met: one, that the selected passages accurately reflect the author's overall views and, two, that the writings are relevant to the nominee's potential responsibilities. Of course, press coverage of all bodies of work should meet those standards. But the length and complexity of academic writing may make it particularly difficult to summarize and particularly easy to distort. In addition, "scholarship is a conversation," as Yale law professor Stephen L. Carter puts it, in which academics throw out ideas partly to "provoke a response." Journalists should be hesitant to treat such tentative recommendations as concrete policy prescriptions.

No such reticence was exhibited in the coverage of Lani Guinier's scholarly writings. Too few reporters questioned whether her theorizing was relevant to a third-tier, though important, job within the Justice Department. Too many reporters uncritically accepted Bolick's and other conservatives' depictions of her views, the same quotes appearing over and over again in such publications as Newsweek, the Los Angeles Times, and U.S. News & World Report. Too few reporters made a concerted effort to explain her views on her own terms before offering others' criticisms of them. And too many reporters substituted code words, such as "quotas," "affirmative action," and "reverse discrimination," for a genuine dialogue on the sensitive subject upon which her writings focus -- the continuing effort to thwart blacks' effective participation in the political process. The result was a portrait that University of Chicago law dean and constitutional scholar Geoffrey Stone calls a "cartoon."

Bolick launched his attack the day after Guinier's nomination was announced and kept gunning until it was withdrawn, making an effective appearance on The MacNeil/Lehrer Newshour the day before Clinto publicly abandoned the nominee. Bolick's first shot, in a Wall Street Journal column headed CLINTON'S QUOTA QUEENS (also referring to Norma Cantu, the nominee for assistant secretary for civil rights in the Department of Education), did the most damage. Much of the press corps seemed unable to resist this alliterative label -- a phrase that did not appear in the piece. Newsweek's first foray into the Guinier controversy was titled "Crowning a 'Quota Queen'?" The article's author, Bob Cohn, says the use of the term was justified as long as it wasn't in Newsweek's voice" because the "term was around town. It was the way most people identified her." Of course the term was around because it appeared in the Los Angeles Times, USA Today, and the Chicago Tribune, and The Washington Post, not to mention Newsweek. Inact, Guinier had explicitly rejected the use of electoral quotas and affirmative action remedies in voting rights cases in articles in the Harvard Civil Rights-Civil Liberties Law Review and the Michigan Law Review.

Another manifestation of the "quota" controversy involved an attempt to fix Guinier's position in a longstanding debate within the civil rights community over whether antidiscrimination laws should be geared toward ensuring an equal process or guaranteeing equal results, frequently through quotas. Bolick wrote that Guinier "proclaims that antidiscrimination laws mandate a 'result-oriented inquiry, in which roughly equal outcomes, not merely an apparently fair process, are the goal.'" Bolick made much of the quote, which appeared in a footnote in her Harvard Civil Rights article, as did writers for The Washington Post, the Los Angeles Times, Legal Times, Newsweek, and U.S. News & World Report.

He and those who regurgitated his analysis ignored her comment in the Virginia Law Review that, while she could be accused of "outcome-oriented jurisprudence," her "focus on legislative rules, not decisional outcomes, adequately answers this criticism." And Guinier never proclaimed (authors rarely proclaim in footnotes) that the law mandates "roughly equal results." When read in conjunction with the sentence that follows, Guinier seemed to be claiming that "substantive equality" should be measured both by "the process," which "must be equal," and "the results," which "must also reflect the effort to remedy the effects of a century of official discrimination." This complex idea was reduced to: Lani Guinier does not believe in "equal opportunity."

Los Angeles Times reported Savage attributes the emphasis on quotas to an attempt to fit Guinier into a preconceived view of what counts in debates about race. "A lot of my colleagues had the reaction, 'We know what this is about, we know this is about quotas,'" Savage says. But Erwin Chemerinsky, a constitutional scholar at the University of Southern California Law Center, argues that Guinier's writing is "not about quotas; it's not about affirmative action; it's not about affirmative action in voting. If she wasn't a black woman I'm not sure it would have come out that way."

Another racially charged claim involved the contention that Guinier had described Virginia Governor Douglas Wilder as not an "authentic" black representative. The charge first appeared in Gigot's May 7 Wall Street Journal column: "So even Virginia's African-American governor, Douglas Wilder, isn't 'authentic,' she says, because he was elected with votes of the white majority." As Neil Lewis observed a week later in The New York Times: "Her critics have seized on a footnote in one article in which she suggests that L. Douglas Wilder, Virginia's first black governor since Reconstruction, could be an example of an inauthentic black political leader because he is obliged to appeal to a majority of white constituents."

Guinier's views on authenticity are so convoluted that the best solution probably would have been to avoid the issue entirely. Guinier introduced the concept of "authentic" representation as part of her Michigan Law Review criticism of what she described as the "black electoral success empowerment model," the prevailing paradigm for determining whether blacks are successfully represented in the political process. She then proceeded to critique this view of "authentic" black representatives as those "elected by blacks" and "descriptively similar to its constituency base." But she later stated that she "rejected the criticism that authentic black representation is meaningles."

She suggested that, while the idea of "authenticity" has some merit, it is not enough. Even where a candidate is elected by a majority of black voters and is culturally black, she wrote, the election may not "in fact send a recognizable message regarding substantive policies." Thus, "even where black support provides a critical margin, successful black candidates in majority-white electorates do not necessarily feel obligated to black voters."

Here is where Doug Wilder came in. In a footnote to the previous sentence, Guinier used Wilder as an example of why authenticity, as it is defined in the black electoral success model, may not be enough to ensure that black leaders will respond to their black constituents. "[Given] the narrow margin of victory, Wilder's ability to govern on other issues important to the black community is considerably vitiated."

To state that Guinier considered Wilder inauthentic was wrong. Most press accounts, however, didn't even provide the basic definition of "authenticity" as used in voting rights terminology. To many journalists the subtext of this racially loaded charge -- that Lani Guinier called Doug Wilder an Uncle Tom -- was too important to leave out, but not important enough to try to understand or explain.

Claims about other Guinier vies do not need much explanation; they are straightforward distortions. Again citing the Harvard Civil Rights review, Bolick wrote in the Journal that Guinier "decries" 'fundamental flaws in our democracy,' urging that 'certain social goods -- health care, day care, job training, housing -- must be recognized as basic entitlements.'" That is not what Guinier claimed. Rather, she urged then President Bush to "endorse and coordinate support for those legislative initiatives which address fundamental flaws in our democracy." In a footnote she then cited another author and summarized that scholar's view that the political agenda should include those "basic entitlements."

At some level, though, this is all nitpicking. The real problem is that Bolick's purported explanation of Guinier's analysis, laid out in a forty-two-page article in the Harvard Civil Rights-Civil Liberties Law Review, was based on one paragraph and two footnotes. And the press followed suit. What was left out as Guinier's detailed and documented attack on the Reagan administration's enforcement of the civil rights law (in which Bolick, a former official in that administration's Justice Department, played a part) and her "recommendations to the Bush administration on inclusionary ways to address the racial divisions of the body politic." (What kind of "radical extremist," by the way, offers recommendations to the Bush administration?)

Similarly, from the seventy-seven-page Michigan article, "The Triumph of Tokenism," the press focused on the "minority veto" which gives "black lawmakers the power to obstruct bills they do not like," as Bob Cohn of Newsweek put it. What was left out was fifty-three pages in which Guinier cogently criticized the current remedy for voting rights violations and nineteen pages in which she tentatively offered several alternatives, only one of which was a "minority veto." In general, the coverage seemed to ignore Guinier's analysis of the problem (see sidebar) and focus on her solutions.

To Stuart Taylor, Jr., a columnist for American Lawyer Media newspapers who criticized Guinier in three columns, such "condensation" of long, scholarly articles "is unavoidable, and the judgment as to how much context must be provided to be fair is a subjective one." Many journalists didn't bother much with context. In fact, many reporters relied on Taylor -- whom New York Times reporter David Margolick describes as "one of the few people in Washington or anywhere else actually to wade through" her articles -- for their context. Taylor says he received several frantic calls from reporters asking for a quickie summary of Guinier's views to be used in articles due later that day. That gave Taylor, an opinion columnist with defined views on civil rights, a disproportionate influence over the debate.

Some articles did try to put Guinier's views in context. Notable examples were Linda P. Campbell and Michael Tackett's "Perspective" column in the June 6 Chicago Tribune and Peter Applebome's June 5 New York Times article on cumulative voting and supermajority rules in certain southern cities and towns. Some critics, notably David Broder, challenged Guinier on her own terms; in a June 16 column in The Washington Post, Broder questioned whether racial gerrymandering was severe enough to justify continued tinkering with the electoral process. But these stories tended to appear only after the nomination had been withdrawn. The initial and decisive articles swung quickly from "controversy" stories to "doomed nominee" stories; both story lines dictated that the most objectionable parts of her work be the focus.

Perhaps the press's first mistake was in accepting Guinier's law review articles as the essence of the confirmation debate. Her suitability could -- and should -- have centered on her qualifications for the job, about which even Bolick had no reservations. (New York University law professor Derrick Bell notes the irony that the most common complaint about affirmative action is the difficulty of finding "qualified" blacks, but in this case "you can't imagine anybody being more qualified than Lani Guinier . . . and, suddenly, qualifications mean nothing.")

Guinier's skills as a litigator, rather than her views as a law professor, could have taken on paramount importance, particularly because, unlike Supreme Court nominees whose writings have been subjected to similar scrutiny, Guinier would have been constrained by her need to persuade a conservative judiciary. In fact, last year's Supreme Court decision, Presley v. Etowah County, holding that the Voting Rights Act did not apply to legislattive actions, may have rendered her most controversial remedies moot as a litigation tactic.

In addition, Guinier, unlike Supreme Court nominee Robert Bork would have been "part of a hierarchy," subject to control by the president and the attorney general, as University of Connecticut law professor John Brittain observed. In fact, when Bork was nominated to be solicitor general in the Nixon administration he was never questioned about his law review articles, law professors Leon Friedman and Burt Neuborne noted in a letter to the editor published in the June 3 New York Times. Yet, while most of the news articles mentioned the similarities with Bork's failed nomination to the Supreme Court, few mentioned the dissimilarities.

The Clinton administration had at first tried to put out the message that Guinier's law review articles shouldn't be the central issue, because she wouldn't be making policy. But the press wasn't listening and ultimately Clinton rejected this line as well. Only one newspaper, the Chicago Tribune in an editorial on May 27, suggested that the focus of the story might have been askew. After criticizing some of Guinier's views, as expressed in her law review articles, the paper endorsed her nomination. "The error here -- as in the case of Bork -- is to assume what a scholar suggests in an academic article shows what she will pursue in public office. . . . No one is about to give the civil rights division the green light to try and get a court to demand a minority veto on legislation. Guinier, even if she were so inclined, will not be allowed to push any radical agenda in litigation."

Most coverage devoted only a paragraph or two to Guinier's career, and only one -- a profile by The Washington's Post's David Von Drehle that appeared after Clinton had withdrawn her nomination -- included extensive information on ther litigation background.

All this could happen again to the next nominee with an extensive "paper trail" who catches the eye of an activist opponent. (According to the Post, Bolick had never read Guinier's writings until being tipped off by conservative Boston University political scientist Abigail Thernstrom, with whom Guinier has had an extended, antagonistic debate.) In the future, the press will have to work harder to ensure that the nominee's opponents don't set the agenda and dominate the debate.

First, reporter need to evaluate whether a nominee's philosophical theories will decisively affect the job he or she is to do. Second and most obvious, reporters need to read the articles, in their entirety, and decide for themselves, perhaps with the aid of scholars, what they in fact say. And the articles must be engaged on their own terms, not terms borrowed from previous partisan debates.

Samuel Issacharoff, a Unviersity of Texas law professor, describes his experience fielding questions from reporters about Guinier. "The press reaction was based largely on the Bork model," he says. "The issue with Bork was: Is he outside the mainstream? Is Guinier outside the mainstream? This was the main question I was asked by all the reporters who called me. What I tried to say -- before I gave up on it and answered the way they wanted me to answer, yes or no -- was that its was very hard to speak of a mainstream in this are. There are only a handful of people writing about this."

Third, reporters must be committed to explaining a nominee's views in totality, not the most controversial parts. And fourth and most difficult, the press, must look beyond the easy code words, like "quota queens," to facilitate a real discussion about race in this country. "Because Guinier spoke of race, of a divided society, it was almost as if those things were her fault, that it was improper to be speaking about this stuff," says Issacharoff. "The press doesn't know what to say about race in this society."

But the press has an important role in listening and giving expression to all views on the race issues. As Lani Guinier said in a press conference after her nomination was withdrawn: "I . . . hope that we can learn some positive lessons from this experience, lessons about the importance of public dialogue on race in which all perspectives are represented and in which not one viewpoint monopolizes, distorts, caricatures, or shapes the outcome."

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