NEWS ANALYSIS : Nomination May Add Race Issue to Democrats’ Schism

President Clinton’s controversial nomination of law professor C. Lani Guinier as assistant attorney general for civil rights threatens to add the incendiary issue of race to the firefight between liberals and moderates over his Administration’s direction.

Moderate elements of the Democratic coalition, such as Jewish groups, are joining Republicans in raising objections about legal writings in which Guinier appears to assert that fairness to racial minorities may require dramatic departures from majority rule in legislative bodies.

Groups representing minorities are promising an aggressive defense. But these rapidly polarizing views not only foretell a turbulent time for the University of Pennsylvania law professor when the Senate Judiciary Committee takes up her nomination, but more broadly suggest the opening of a new front in the battle over the Administration’s course.

So far, the sharpest Democratic divisions have come over economic policy--with congressional moderates calling for an economic plan with more spending cuts and fewer tax hikes than Clinton’s. Some Democratic centrists are now accusing Clinton of losing his balance on social issues as well.

Already, the Guinier nomination has provoked a rare public split between Clinton and the Democratic Leadership Council, the organization of centrist Democrats the President headed until he announced his candidacy in 1991.

Many of Guinier’s views “fall way outside the American tradition of equal opportunity, individual versus group rights, and majority rule,” charged Will Marshall, president of the Progressive Policy Institute, the council’s think tank.

Added Democratic consultant Brian Lunde: “His moderate positions on cultural issues was a large reason why he was elected. When he says the words ‘new Democrat’ that’s what people heard. But his actions have run counter to the rhetoric of the campaign on these cultural issues.”

In office, Lunde and other critics maintain, Clinton has emphasized the cultural priorities of the party’s liberal wing. Among them: revoking restrictions on abortion imposed by Presidents Ronald Reagan and George Bush, developing plans to expand access to abortion under his health care reform plan, greatly expanding efforts to recruit minorities and women for federal jobs, and seeking to overturn the ban on homosexuals serving in the military.

Particularly in the South, many observers maintain, this leftward drift on social issues may have lastingly damaged Clinton’s image as a centrist. “The gay rights thing (in the military) was a great symbol even though it was a tangential issue,” says Jim Dyer, director of the Texas Poll at Texas A&M; University. “That really defined him as a liberal in no uncertain terms.”

By contrast, Clinton’s record on the “new Democrat” cultural agenda is spotty. Though he has reiterated his campaign commitment to reform welfare, he still hasn’t appointed an Administration task force to draw up the plans, though several Administration officials have started to meet informally on the issue.

Clinton has proposed spending $2 billion over the next five years to implement his promise of providing 100,000 additional police officers, but he hasn’t stressed measures to combat crime or offered proposals to revise the federal criminal code. And he has only rarely reprised his campaign-trail calls for greater “personal responsibility,” though officials insist that the Administration still intends to offer initiatives on such questions as discouraging teen-age pregnancy and collaring “dead-beat dads.”

But conservative strategist William Kristol, former chief of staff to Vice President Dan Quayle, says Clinton’s early record on cultural questions validates the GOP argument last year that whatever Clinton’s own preferences are, the institutional forces in the Democratic Party would inevitably pull him leftward.

Kristol argues that Clinton’s early actions on social issues deviate not only from his centrist line during the presidential campaign but also from his cautious approach as governor of Arkansas. As governor, Kristol noted, Clinton did not pass a state civil rights law or repeal the ban on sodomy, and signed bills prohibiting Medicaid funding for abortions and requiring minors to notify either a parent or a court to receive an abortion.

“Probably contrary to his own political instincts, and certainly contrary to his Arkansas record, he’s now thrown in with the left wing of the Democratic Party on cultural issues,” Kristol said.

To these combustible questions, the Guinier nomination adds the explosive issues of race, quotas and equal opportunity.

Throughout his campaign, Clinton sought a nuanced course on racial issues that maintained support in the black community while reaching out to moderate, white swing voters who had defected from the Democratic Party over the past generation partly around such racially-tinged issues as busing, affirmative action and crime.

At the philosophical level, Clinton signaled that he preferred “universal” programs that offer benefits without regard to race--such as expanding college education or health care coverage.

On a symbolic level, Clinton tried to indicate that he would hold all Americans to common standards when he both accused the Bush Administration of manipulating racial animosities and publicly broke with Jesse Jackson to criticize remarks by a young black rap singer as racist.

On civil rights law itself, Clinton consistently said government should seek to prevent discrimination but not guarantee minorities a specific share of employment or educational opportunities.

Guinier, though, apparently takes exactly the opposite view. A law professor at the University of Pennsylvania who attended law school with both Bill and Hillary Rodham Clinton, Guinier has written that “the goal” of anti-discrimination policies should be “roughly equal outcomes, not merely an apparently fair process.”

“Accordingly, substantive equality should be measured by equality in fact: The process must be equal, but the results must also reflect the effort to remedy the effects of a century of official discrimination,” she wrote in 1989.

One of Guinier’s principal responsibilities in the Justice Department would be enforcement of the Voting Rights Act, and in her writings she has proposed expanding the act’s application to apply a results-oriented racial test to the outcome of legislative deliberations.

In a 1991 article, she contended that even without evidence of discriminatory intent, racially-polarized voting in a legislative body “that leads predictably to minority losses” violates existing voting rights law.

In two 1991 articles, Guinier proposed that courts might require legislative bodies with such a history of racially-polarized voting to give minority representatives a veto over “legislation of vital importance to minority interests” or establish rules that would allow legislation to pass only if it receives the votes of most minority representatives, as well as a majority of the entire legislature.

That argument “really goes to a core issue of one’s conception of American society as a colorblind society,” said Jess N. Hordes, Washington director of the Jewish Anti-Defamation League. “There are concerns about solutions (Guinier has proposed) that may Balkanize and polarize” American society.

Likewise, Marshall of the Progressive Policy Institute says the approach Guinier embraces in her writings threatens “the prospect of biracial politics in the Democratic Party--and more importantly Bill Clinton’s own vision of a national community with citizens held together by common bonds that transcend their race, sex or ethnicity.”

Dayna Cunningham, an attorney with the NAACP Legal Defense Fund, argues that such concerns are misplaced. Whatever her academic writings, Cunningham says, Guinier’s focus as a litigator has been eliminating practical obstacles to black political participation and creating more opportunities to build “cross-racial bridges.”

“The thrust of it is not to say black people should have a veto over what whites want to do--but to say there are structural problems that have to be addressed,” she said.

Some Democratic strategists fear that a drawn-out public struggle over Guinier could exacerbate racial tensions already evident in Clinton’s coalition. As Clinton’s approval rating has dropped in recent weeks, the public assessment of his performance has sharply polarized along racial lines: In the latest Gallup Poll, blacks approved of his performance by a margin of more than 7 to 1, while a plurality of whites gave him negative marks.

One Democratic consultant who has advised the White House said that even contentious nomination battles only rarely create lasting political problems for the President. But with all the President’s other difficulties, the consultant added: “Why is Clinton willing to take any risks at all defending the proposition that majority rule is racist?”