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Clinton nominee to civil rights post is becoming Bork case of the left


WASHINGTON -- C. Lani Guinier, President Clinton's choice to head the Justice Department's civil rights division, is quickly becoming the Robert H. Bork of the left.

A voting-rights attorney who once battled to give blacks a chance to win elections in the South, she has spent the past four years as a University of Pennsylvania law professor writing about new strategies for ensuring political fairness and "empowerment" for minorities.

But like Judge Bork, her many writings on touchy subjects have given her critics the words with which to brand her an extremist outside the mainstream.

She is a "quota queen" who would bring "breathtakingly radical" views to the government, says Clint Bolick, a former Justice Department attorney and aide to William Bradford Reynolds, the Reagan administration's civil rights chief.

"She has a serious problem with American democracy," he adds. By his analysis, Ms. Guinier proposes to scrap the cherished principle of majority rule in favor of a "racial spoils system."

Those charges have sent Democrats scurrying for cover and have put Ms. Guinier's nomination in trouble just three weeks after it was announced. Conservatives like Mr. Bolick readily admit they are following a script written by liberal activists in the 1980s.

On the day President Reagan nominated Judge Bork to the Supreme Court, liberals led by Sen. Edward M. Kennedy, D-Mass., lambasted the one-time conservative law professor as anti-civil rights, anti-abortion, anti-privacy and anti-free speech. Judge Bork never recovered from the assault, and his nomination was defeated in the Senate.

Now, Ms. Guinier, a Yale classmate and longtime friend of Bill and Hillary Clinton, could be headed for a similar fate.

This week Ms. Guinier's friends and co-workers have come to her defense, saying she is not the strident, contentious person being portrayed by the conservatives.

And some legal scholars in the field of voting rights say her writings have been badly distorted.

"She is getting a bum rap," said John Kramer, dean of the Tulane Law School. "She has presented some novel, tentative ideas on the problem of redistricting, and she is being mischaracterized as a hard-edged advocate of quotas."

"I'm not campaigning for her, but her work is entitled to a fair hearing," added Alex Aleinikoff, a University of Michigan law professor. "The criticisms I've read don't describe her work as I know it. She is not advocating racial gerrymandering. She opposes it."

Indeed, in several long journal articles, Ms. Guinier questions the 1980s strategy of creating "safe districts" for minority candidates. As an alternative, she proposes new voting arrangements that could "encourage cross-racial alliances."

Clearly, though, Ms. Guinier courts controversy by raising questions about the principle of majority rule in the halls of city councils and county boards.

What about a Southern community with a "racially polarized" power structure that entirely ignores the wishes of the black minority? Even the election of one or two black city council officials, she says, may not change that reality in the slightest.

In the Voting Rights Act of 1982, Congress stressed the effect of election rules on the political prospects of a racial or ethnic minority. If an electoral system acted to prevent these groups from electing a candidate of their choice, federal courts could intervene and devise a new system.

That principle led to the redrawing of electoral boundaries nationwide and to the election of new minority representatives.

While most civil rights activists have celebrated these changes, many others, including conservatives such as Mr. Bolick, have ,, denounced the idea of carving up voting districts along racial and ethnic lines.

In her recent writings, Ms. Guinier says she agrees in part with the critics. The move to create "safe seats" for minority candidates has antagonized whites, ignored other minorities and worked to elect "token" black representatives with little power.

She recites recent examples from Alabama and Mississippi where white majorities on county boards changed the rules to strip power from newly elected black board members. Even though blacks succeeded in electing representatives in these communities, they still often have no "meaningful voice" in the distribution of political power, she says.

This sort of "majority tyranny" should now be challenged under the Voting Rights Act, she argues.

What might be done? Ms. Guinier suggests that counties with a history of "racially polarized" voting might consider "cumulative voting" as an alternative.

Take, for example, a city such as Mobile, Ala., with a 35 percent black population. Under the redistricting schemes that were used in the 1980s, the city could be divided into five districts where blacks could win one, or perhaps, two seats.

Ms. Guinier proposes that all five commissioners be elected during one election in which all the voters would get five votes. They could cast all their votes for one candidate or spread them around to several.

This system, she argues, could protect the interests of a black minority but also encourage all politicians to seek the votes of all city residents. This could "encourage coalitions" of voters that bridge racial lines.

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