Failure to Combat Labels Sunk Justice Nominee

THE day after President Clinton withdrew Lani Guinier's nomination to be the nation's top civil rights enforcer, conservative lawyer Clint Bolick could not have been more pleased to talk all about it.

For it was Mr. Bolick who fired the first salvo - a column in the Wall Street Journal titled "Clinton's Quota Queens" - after Ms. Guinier's nomination was announced April 29.

Guinier, the column stated, "sets the standard for innovative radicalism" in her views on civil rights. She "calls for racial quotas in judicial appointments" and "demands equal legislative outcomes, requiring abandonment not only of the `one person, one vote' principle, but majority rule itself," Bolick wrote.

The White House said nothing.

On the eve of Mr. Clinton's June 3 announcement that Guinier was no longer his choice, Guinier gave her first public defense: an ABC-TV "Nightline" appearance. She stated unequivocally that she does not believe in any quotas and does not have "any quarrel with majority rule."

But it was too late. Clinton was already set to pull the plug. Furthermore, it was not supposed to be Guinier's job to defend herself. The White House had asked her, as is customary with executive-branch nominations, not to give interviews before her confirmation hearing.

In the post-mortems on the Guinier flap, finger-pointing is rampant: The White House counsel's office is being blamed for not seeing that Guinier's provocative writings could cause political problems. The communications office is being blamed for not countering the conservative campaign against Guinier. And the president is being blamed for getting caught in a lose-lose situation in which he either denies his friend the opportunity to explain herself in Senate hearings, or goes ahead with hearings he fea rs could heighten racial polarization and wind up in defeat anyway.

But the fatal error, Guinier's supporters say, was the White House's failure to counter the "quota queen" epithet, which worked its way into other media and into the Zeitgeist. In Newsweek's May 24 issue, an article on the Guinier nomination was titled "Crowning a `Quota Queen'?" Just as 1987 Supreme Court nominee Robert Bork never recovered from early definition by his opponents, neither did Guinier.

"After the original attack on Lani, the White House should have responded forcefully and put Bolick on the defensive," says Jim Coleman, a law professor at Duke University and friend of Guinier. "The label `quota queen' was sexist and racist."

Just as Bolick was preparing his opposition to Guinier weeks before her actual nomination, so too was Dr. Coleman working on her behalf.

"I got involved when White House staff started raising questions about her," he says. "My sense was that some in the White House opposed her." So he called Guinier and told her that questions were being raised about her articles, and they decided to give the White House references - respected moderates and conservatives, including two federal judges - who would say that Guinier's writings represented "mainstream, excellent scholarship." Coleman does not know if the White House ever followed up on those s uggestions.

Meanwhile, Bolick and another conservative legal activist, Tom Jipping, were poring through Guinier's writings and preparing their own analysis. Bolick delivered his column to the Wall Street Journal the morning of the day Guinier was nominated. Days later, he sent out packets containing copies of four Guinier law-review pieces, highlighting passages Bolick found damning, his "quota queen" column, and a critical column from the Legal Times newspaper. These went to members of the Senate Judiciary Committe e and the media.

Mr. Jipping, head of the Judicial Selection Monitoring Project of the Free Congress Foundation, wrote his own 23-page analysis of Guinier's work and sent it to all United States senators and the media. His group also distributed "talking points" on the nomination to dozens of other conservative groups.

With the all-important Senate Judiciary Committee, whose endorsement Guinier needed, the White House appeared to do little to counter the conservative arguments or grease the skids for the nominee.

Another element in the sinking of Guinier was early questioning by several Jewish groups, which are sensitive about race-consciousness in politics.

They did not oppose her outright (though some Jewish publications did) but rather raised concerns about her writings and requested a meeting with her, which never took place.

"We got conflicting messages from her handlers," says Mark Pelavin of the American Jewish Congress. "Some saw no particular urgency. Others thought there was nothing to be gained from a meeting."

The real turning point for Guinier came two weeks ago, when key members of the Senate Judiciary Committee, such as chairman Joseph Biden (D) of Delaware and Patrick Leahy (D) of Vermont, began voicing reservations about Guinier.

"Joe Biden has good political antennae; remember, he told Clinton that Zoe Baird, Clinton's first choice for attorney general, would have trouble before the committee," says a top aide to a Judiciary Committee Republican. "If Biden raises his eyebrows over someone, he's probably got 20 senators behind him."