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 Bork, her many writings on touchy subjects have given her critics the words with which to brand her an extremist.
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 the Ronald Reagan Administration's civil rights chief, William Bradford Reynolds.
"She has a serious problem with American democracy," he added. By his analysis, 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 Guinier's nomination in trouble just three weeks after it was announced. Conservatives like Bolick readily admit that they are following a script written by liberal activists in the 1980s.
On the day Reagan nominated Bork to fill a vacancy on 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. Bork never recovered from the assault, and his nomination was defeated in the Senate.
Now, Guinier, a Yale University classmate and longtime friend of the President and First Lady Hillary Rodham Clinton, could be headed for a similar fate.
Guinier has not responded to the attacks or agreed to interviews since her nomination. This week, however, Guinier's friends and co-workers came 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 distorted.
"She has presented some novel, tentative ideas on the problem of redistricting, and she is being mischaracterized as a hard-edged advocate of quotas," said Tulane Law School dean John Kramer.
"I'm not campaigning for her, but her work is entitled to a fair hearing," said University of Michigan law professor Alex Aleinikoff. "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, Guinier questions the 1980s strategy of creating "safe districts" for minority candidates. As an alternative, she proposes new voting arrangements which could "encourage cross-racial alliances."
Clearly, though, Guinier courts controversy by raising questions about the principle of majority rule in the halls of city councils and county boards.
Normally, she writes, we accept "the entitlement of a 51% majority to exercise 100% of the power" because majorities are fluid. The group in the minority this year may in the majority next year.
But what about, she asks, 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 members may not change that reality in the slightest.
If so, she writes, this presents a "third generation" problem for voting-rights advocates.
The "first generation" came in the 1960s. Until then, blacks in the South were barred from registering to vote. The Voting Rights Act of 1965 gave the Justice Department and private civil rights lawyers the power to strike down schemes that prevented blacks from voting.
The "second generation" issue was crystallized in a 1980 Supreme Court case from Mobile, Ala. The city was governed by three commissioners, each elected at large. Although blacks made up 35% of the population, no black person had ever been elected to office.
In a 6-3 decision in Mobile vs. Bolden, the high court ruled that the system did not violate the Voting Rights Act because the black plaintiffs could not prove it was set up with a discriminatory intent.
But after a long and heated debate, Congress overturned that decision in the Voting Rights Act of 1982. The new law said federal courts could intervene and devise a new system if an electoral system acted to prevent a racial or ethnic minority from electing a candidate of their choice.
That principle led to the redrawing of electoral boundaries nationwide and to the election of new minority representatives, including the first Latino supervisor in Los Angeles County.
While most civil rights activists have celebrated these changes, many others, including conservatives such as Bolick, have denounced the idea of carving up voting districts along racial and ethnic lines.
