Justice Nominee May Be Dropped By White House

Guinier says she will fight for position. MODERATE SHIFT

PRESIDENT Clinton's reported decision to drop his nominee for the top enforcer of civil rights in the Justice Department comes as a grave disappointment to civil-rights activists and a victory for the conservatives who had the long knives out for her even before she was formally nominated.

The decision to withdraw Lani Guinier, reported yesterday, also is seen as a defeat for "due process" in the court of public opinion. Until the past few days, the image of Ms. Guinier, a legal scholar and civil-rights litigator, had been one of an antidemocratic radical whose support for minority rights led her to advocate alternatives to majority rule in some cases.

Guinier's supporters, including the White House, were slow to counter that image. In short, Guinier has been "Borked." Just as in the case of Judge Robert Bork, the Supreme Court nominee who was blindsided by a liberal opposition that used his own legal writings to characterize him as an extremist, Guinier's paper trail has come back to haunt her.

But the difference now is that Guinier may not have a chance to make her case, as Judge Bork did, before the Senate Judiciary Committee.

"Fairness requires that I be given an opportunity to present my views to the Senate," Guinier said on ABC-TV's "Nightline" Wednesday night in a bid to save her nomination.

Ironically, there is some consensus, outside the White House at least, that Guinier should have been given that chance. Both the liberal Washington Post and the conservative Washington Times editorialized this week that a confirmation hearing should be held. Liberals say the Washington Times took this position because a hearing would prolong Mr. Clinton's public distress over a seemingly doomed nomination.

The latter argument would explain just why Clinton is apparently cutting his losses before it becomes an even bigger story.

The president has received indications from key senators both on and off the Judiciary Committee that they have doubts about Guinier. Committee chairman Joseph Biden (D) of Delaware has voiced concerns about some of her published views. So has Sen. John Breaux (D) of Louisiana, who heads the Democratic Leadership Council, a centrist organization that Clinton used to lead - and whose members have muttered that Clinton-as-president has not behaved like a true DLC-er.

The apparent dumping of Guinier comes at a time when Clinton is shoring up his moderate credentials on several fronts, most notably with the naming of Republican David Gergen to a senior adviser position in the White House. Clinton, the argument goes, needs to save his chits in the Senate for the crucial battle over his tax-increasing budget, and not expend the energy it would require to save Guinier.

The flip side for Clinton is that he appears to be bailing out - on a friend, no less (Guinier attended Yale law school with Clinton and his wife) - without much of a fight. Unlike his decision to drop attorney general choice Zoe Baird, who had hired an illegal alien as a nanny, Clinton will pay a political price for dropping Guinier.

Ms. Baird had no natural constituency rushing to her defense when her nomination ran aground. But Guinier does have her ardent supporters, namely civil-rights, black, and women's groups. Guinier, who is black, spent 7 1/2 years during the 1980s as head of the Voting Rights Project at the National Association for the Advancement of Colored People.

"This is a test of whether Clinton has a backbone," says C. Delores Tucker, chairwoman of the National Political Congress of Black Women Inc. If Clinton drops Guinier, Ms. Tucker adds, he will be jeopardizing his support in the black community.

Robert Richie, national director of The Center for Voting and Democracy, calls the conservative spin on Guinier's views a gross distortion. "If Clinton withdraws her nomination, he will be saying he's not willing to fight for the Voting Rights Act," Mr. Richie says.

Guinier has argued that simple-majority rule can be inadequate to ensure minority blacks their fair share in the political process. For example, on a council with a white majority, whites could always carry a vote as a bloc without ever considering the black perspective. In such cases, it might be desirable to institute a requirement for a "super majority," for example, 5 out of 7 votes.

Guinier's opponents, with conservative litigator Clint Bolick at the lead, argue that, as assistant attorney general for civil rights, Guinier would implement that and other alternative voting requirements on a large scale.

The Guinier flap comes on the eve of Clinton's nomination of a Supreme Court justice to replace the retiring Byron White. But ironically, Clinton does not appear headed for a similar battle royal, if he picks one of the names reportedly at the top of his list. They are all political moderates, and conservative groups like the Free Congress Foundation, which monitors judicial nominations, say they do not have any major problems with that list. Clinton, it appears, saw that potential train wreck well in ad vance, and will not even allow the train to leave the station.

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