Did Lani Guinier Really Mean It?
LANI GUINIER, President Clinton's first choice to head the Justice Department's civil rights division, wrote herself out of the job.
After the University of Pennsylvania law professor's writings about the Voting Rights Act ignited a firestorm of controversy, the president himself read the dense articles. Stating that Ms. Guinier's radical proposals to redress political inequality for minorities were inconsistent with his own views, Clinton withdrew the nomination.
The Guinier episode, like President Reagan's unsuccessful nomination of Robert Bork to the Supreme Court in 1987, raises questions about the interplay of law, scholarship, and politics:
* Should legal scholars under consideration for a government post be held strictly accountable for their academic writings - or does this chill scholars' academic freedom to push the theoretical envelope, to test speculative hypotheses, or intellectually to play devil's advocate?
* Can scholarly writings on complex legal subjects - often intended for a sophisticated, specialized audience - be summarized accurately and fairly in newspaper op-ed articles or TV sound bites?
* Can a legal scholar nominated for office distance himself or herself, with intellectual integrity, from controversial writings - either saying he has revised his opinions or else insisting that, as a good lawyer, he will subordinate his personal views to established legal precepts?
Legal scholars seem to be virtually unanimous in their view that academics can and should be held accountable for what they write. "Legal writings should never be simply playful or trivial," says federal appeals Judge Richard Posner, who writes frequently for legal journals. "If you don't believe it, you shouldn't write it," echoes Prof. Mark Tushnet, a Critical Legal Studies scholar at Georgetown Law School in Washington.
Many academics comment, however, that the accountability process is fraught with the risk - especially in a confirmation proceeding - that complex legal analysis will be misrepresented and even caricatured by journalists, advocacy groups, and lawmakers. Yet Harvard Law School Prof. Laurence Tribe is not overly sympathetic with any scholar's claim that his words were twisted: "Writing clearly enough to avoid caricature is part of being accountable," he says.
Legal observers generally say that, if given a chance to defend his views publicly (as Guinier was not), a scholar occasionally can put some daylight between himself and his words, but it must be done honestly. "You can't say, `I was just playing with ideas,' " comments Prof. Mary Ann Glendon of Harvard Law School. Some opponents of Judge Bork chide him for "running away from his writings," in Professor Tribe's phrase; but supporters of Bork insist that the only views he partly disavowed in his confirmat ion hearings had been written 20 years earlier.
(However they feel about Guinier's views, most scholars praise her steadfastness to them, even in the face of white-hot criticism.)
A nominee with controversial views can argue that, if confirmed, he will follow the law as it exists and not his personal beliefs, scholars say. "Good lawyers and judges do that all the time," Professor Glendon notes. But observers also point out that almost all officeholders - especially executive-branch appointees but judges as well - have a lot of discretionary authority, and that the "good lawyer" defense offers little guidance about how a nominee will exercise discretion. For that, lawmakers may pro perly consider the nominee's expressed views.
Whether or not they sided with Lani Guinier, whether they think she was treated fairly in being denied a public hearing, scholars agree that, in principle, there was nothing wrong in "Borking" Guinier by subjecting her writings to tough scrutiny.
So future nominees for legal or judicial positions should understand that, in their scholarship, they will be held to the standard set by Horton, the Dr. Seuss elephant: "I meant what I said and I said what I meant."