Clinton May Be Term-Limited by Nominees : One judge finds redeeming virtues in racial murders; the nominee for NLRB chairman doesn’t believe in majority rule.

An embarrassed President Clinton withdrew his nominee, Lani Guinier, as head of the Justice Department’s civil-rights division once the public found out that she was partial to “race-norm” voting (weighting black votes disproportionately to white votes), but he’s pushing similar forms of race-norming everywhere else. Rosemary Barkett, his nominee to the 11th Circuit Court of Appeals, wants to race-norm crime and punishment, and William Gould IV, his nominee to head the National Labor Relations Board, opposes majority rule in collective bargaining because it is a “roadblock” to unionization.

Barkett, a judge on Florida’s Supreme Court, believes that blacks who receive the death penalty do so because of their race and not their crimes. She argues that traditional exercises in sorting out law and facts are prejudiced by the vast extent of “unconscious racism” in society. Juries, judges and prosecutors are all untrustworthy because of “the rise of the aversive racist, a person whose ambivalent racial attitudes leads him or her to deny his or her prejudice and express it indirectly, covertly, and often unconsciously.”

In Barkett’s view, Charles Kenneth Foster was sentenced to death because he was black, not because he slit the throat and spine of a white victim on a Florida beach.

In another case Barkett found “socially redeeming values” in Jacob John Dougan’s stabbing and shooting murder of a white victim. Dougan had sent a tape to the victim’s mother in which he bragged of the murder. The tape proved to Barkett that the murder was a “social awareness case” in which the victim was merely “a symbolic representation of the class causing the perceived injustices.” In other words, the murder served a higher purpose that aversive racists couldn’t recognize.

Judge Barkett has numerous other items like these on her resume. As one of her colleagues remarked when she voted to vacate one death sentence, she believes the defendant “is a good man, except that he sometimes kills people.”

Gould, a Stanford law school professor, has a similar explanation about why employees reject unions. It is all due to the Reagan “whirlwind” that created a “hostile environment” that causes workers to foolishly reject labor unions.

Gould has written that existing rules such as majority voting, secret ballots and the right to resign from a union during a strike heavily tip “the scale in favor of the individual worker’s rights.” If as many as 20% of the employees express interest in union representation, “it seems perfectly appropriate to compel some form of relationship between the employer and the union.”

In Gould’s view, employers are aversive union-busters and simply cannot bargain fairly. To correct this covert prejudice, he wants to bring in the NLRB as labor’s ally in collective bargaining and to restrain management’s ability to communicate with the work force prior to a union certification vote. He would also impose union contracts on successor companies and forbid companies from hiring striker replacements.

Gould’s proposals would make it easier for him as NLRB chairman to find employers guilty of unfair labor practices. To make certain that the miscreants suffer appropriately, he wants to expand their financial liability for violations to triple damages.

Concerned about his extensive partisan paper trail, Gould told the Senate Labor and Human Resources Committee that his many articles and books merely muse on how Congress might improve labor law. He disavowed that his views would influence his interpretation of the law as written. This unbecoming pretense ignores how regulatory agencies routinely use their interpretative powers to rewrite their authorizing statutes.

The best bet is that Gould would use his powers to stretch the law in his directions. Why else leave the palm trees in pleasant Palo Alto if not for the pleasure of wielding power?

Ironically, Clinton himself is likely to be Gould’s principal victim as unions representing a minority of workers create tumult in the workplace as restructurings are halted and crippling strikes pull the lackluster Clinton economy to a standstill.

Lining up with a judge who finds socially redeeming virtues in racial murders and with an NLRB chairman who wants to cram unions down the throats of workers and managements without a majority vote, Clinton seems destined to be smitten by his own appointees.