Starting in 1981, the Reagan administration adopted the civil-rights agenda of the Republican right wing. It was a cheap way to appease a key constituency. The Justice Department’s Civil Rights Division was put under William Bradford Reynolds, whose policies were skewed by preoccupation with the threat of quotas and reverse discrimination against white males: He adopted a tone of self-righteous ideological certitude that polarized debate and obscured the strengths of his own position.

Now it appears that the Clinton administration may be starting down a similar road by adopting the civil-rights agenda of the Democratic left wing-including a proclivity for pushing the use of thinly veiled racial quotas. The best evidence is President Bill Clinton’s nomination of Lani Guinier, an impressive litigator-scholar with some alarmingly radical views, to head the Civil Rights Division.

Guinier sees white racism as an evil so pervasive and persistent as to require the most drastic of remedies-like junking "American majoritarianism" in favor of court-ordered allocation of "proportionate power" among racial blocs in legislative bodies. She says that civil-rights enforcement is and must be "a result-oriented inquiry, in which roughly equal outcomes, not merely an apparently fair process, are the goal." She suggests black legislators are "authentic representatives" only if they "are politically, psychologically, and culturally black."

And she has reviled Reynolds, six Supreme Court justices, and others with a bitterness and stridency that makes Reynolds’ rhetoric seem almost mild by comparison.

For example, Guinier wrote that the Court had "lynched" the Voting Rights Act last year in a 6-3 decision (which I didn’t like much either) curbing the reach of the statute. In the same Feb. 2, 1992, op-ed article in the Philadelphia Inquirer, she added that the Court "resurrects the rhetoric and the logic of white supremacy" in a manner reminiscent of "another era when the excesses of power took cover under a white sheet instead of a black robe."

The Meaning of Qualified

Guinier and her scholarly writings (which omit such inflammatory rhetoric) deserve to be taken seriously. Her views have been forged in the crucible of a career dedicated to improving the lives of poor blacks and other disadvantaged minorities. They reflect understandable frustration at the failure of mainstream civil-rights policies to arrest the steadily worsening deprivation and squalor of the inner cities. And they include cogent, creative, and provocative criticisms of current voting-rights orthodoxy.

Ideology aside, the 43-year-old University of Pennsylvania law professor is superbly qualified for the civil-rights job: A 1974 graduate of Yale Law School (where, she has written, she felt "profound senses of alienation and isolation" as a black woman), she is an experienced litigator who worked in the Civil Rights Division during the Carter administration and then for the NAACP Legal Defense and Educational Fund Inc. Not to mention being black; a woman, and a close enough friend of both Bill and Hillary Rodham Clinton to have had them as guests at her 1986 wedding, held at her father’s vacation home on Martha’s Vineyard.

The problem is that Guinier’s published views advocate interpretations of the Voting Rights Act that can only be called startlingly extreme, unworkable, and, as a matter of statutory interpretation, extra-ordinarily far-fetched. As assistant attorney general for civil rights, she would not only be responsible for enforcing this and other laws through litigation, but would also exercise the enormous discretionary "pre-clearance" power, conferred upon the Justice Department by §5 of the Voting Rights Act, to veto any changes in the voting rules of many states and localities.

Taking as her premise a bleak vision of blacks as perpetually oppressed by a racist, white "majority tyranny," Guinier has contended that "winner-take-all-majority rule" as we know it is both "illegitimate" and (at least at the local level) violative of the Voting Rights Act".

She has contended that the statute is a mandate for the courts to change the rules of local legislative bodies so as to ensure not only, that black voters have substantially proportionate representation, but also that black representatives-or, rather, those who are "authentic"-can win "a fair number of contested policy decisions" in the legislature.

("Identifying ‘black representatives’ raises several questions," Guinier observes in a footnote. "For example, would descriptively black representatives who were also Republicans qualify as black representatives?… [O]nly a representative sponsored by the black community and electorally accountable to it would count." Thus, Guinier suggests, a black elected official like Virginia Gov. L. Douglas Wilder might not count as authentically black because he had to appeal to white voters in order to get elected.)

So much for the quaint notion that the civil-rights movement had something to do with moving the country away from its sad legacy of racial stereotypes and polarization.

Among the "remedies" that Guinier has suggested for cases in which the "authentic" black legislators can’t get majority-white legislatures to adopt their programs are judicially imposed rules "restructuring the legislative decision-making process" by giving black legislators "a minority veto" or a system of "weighted voting," so that the white majority cannot get anything done without black-minority assent. The weighted-voting approach would explicitly give each "authentic" black legislator’s vote the same weight as, say, those of two white legislators; the "minority veto would be designed to have a similar effect.

What about the Constitution’s one person/one-vote requirement? No problem, Guinier writes: "[T]he minority veto would be justified to overcome the disproportionate power presently enjoyed by white voters in certain jurisdictions."

(Most of the above quotations come from Guinier’s 102-page "No Two Seats: The Elusive Quest for Political Equality," in the November 1991 Virginia Law Review.)

Guinier turns to making such extreme proposals after having criticized, with some cogency, the focus of current voting-rights doctrine on carving out as many majority-black, single-member voting districts as possible. This strategy is, Guinier says, "anemic" because it leads to mere "token" representation by black legislators who are so isolated as to be perennial losers in legislative racial-bloc voting and are so insulated from electoral competition as to be unresponsive to constituents.

But Guinier takes the argument to extremes by suggesting that legislative bodies are so racially polarized that black representatives are effectively powerless to do anything for their constituents: "Racism excludes minorities from ever becoming part of the governing coalition, meaning that the white majority will be permanent….[S]uch a majority will ‘marginalize’ or ignore minority interests altogether." She disregards the myriad civil-rights laws and social welfare, affirmative-action, and other programs that majority-white legislatures have adopted around the country.

Guinier also cites as per se proof of illegal "prejudice" any pattern of persistent white-majority rejection of proposals favored by "authentic" black representatives. In doing so, she ignores the possibility that there could ever be legitimate disagreements between racially polarized groups of legislators over issues like minority contract set-asides. She also tars as racist the natural, class-based tendency of representatives of affluent taxpayers to vote their own economic self-interest by resisting welfare expenditures sought by representatives of poor people.

In Pursuit of Factionalism

Guinier proposes to guarantee election of proportionate numbers of black legislators through court-ordered use of cumulative voting in large, multi-member districts. This would allow blacks or any other "self-identified" racial or ideological groups that include, say, 10 percent of the local population to elect their own representatives by "plumping" their votes behind their candidates.

Guinier acknowledges-indeed, she says she hopes-that this would likely spur a proliferation of "minority political parties" organized along racial, ethnic, and ideological lines, giving not only blacks but also other "self-identified" blocs of voters an effective veto over key decisions. She waves aside the manifest dangers that her approach would magnify the electoral clout of extremist fringe groups, increase racial conflict, or lead to legislative paralysis, as similar approaches have done in countries like Italy.

At least you can’t accuse Clinton of choosing Guinier to pursue a partisan Democratic agenda; her proposals, if adopted, would probably splinter the Democratic Party into some kind of "authentic black" party, a Latino party, and a collection of other ethnic and ideological factions.

The Theory in Action

Guinier’s November 1991 article sketches out how her kind of "proportionate interest representation" lawsuit might work in a 20-percent-black city with a five-member city council:

First, the election rules would have to be revised, if necessary, to assure roughly proportionate representation through election of one or more black representatives to the council. But that would be just the beginning. The city council’s "legislative decisional rules" and decisions on substantive policy issues would also be scrutinized, for evidence of "legislative vote dilution." If black plaintiffs could show "sustained defeats of minority interests"-for example, proposals by black councilmembers to fund social welfare things, foreclosed the sort of Voting Rights Act challenges to internal legislative rules that Guinier had advocated in her November 1991 article.

But Guinier will still have enormous discretion-especially in §5 pre-clearance cases-to fit civil-rights enforcement to her own views, including her tendency to attribute all the problems of minorities to continuing racist oppression.

How will Guinier handle other issues, such as the extent to which the vaguely worded 1991 amendments to the federal job- discrimination law require employers to use racially preferential, numerical "goals" (quotas, if you prefer) to produce statistically balanced work forces? I think I can guess, although her writings touch this area only obliquely.

For example, in the same 1989 article (in the Harvard Civil Rights-Civil Liberties Law Review) that calls for "roughly equal outcomes, not merely an apparently fair process," Guinier also suggests that "the Senate Judiciary Committee should begin evaluating federal judicial nominations with reference to specific goals for increasing non-white nominees" and should refuse to confirm too many whites in a row. In another article (in 1992), Guinier dismisses "the chimera of achieving a physically integrated legislature in a color-blind society."

Clint Bolick, a conservative opponent of the Guinier nomination who is litigation director at the Institute for Justice in Washington, D.C., scans such passages with a certain relish. If confirmed, he says, "She will provide four years of fodder for us. She will be to conservatives what Brad Reynolds was to liberals."

Just what Bill Clinton needs.