Ask the Tough Questions on Civil Rights : Patrick comes from the same philosophical base as Guinier, only he hasn’t written about it.

When he nominated Deval Patrick to be assistant attorney general for civil rights, President Clinton lashed out against anyone who would dare raise questions about his nominee.

“Those people,” Clinton asserted in his podium-thumping diatribe referring to me and my colleagues at the Institute for Justice, “never believed in equal opportunity, they never lifted a finger to give anybody of a minority race a chance in this country.”

One would think Clinton would have learned from the mess he made of the Lani Guinier nomination. But for the second time, Clinton seems either to have nominated someone to this vitally important post whose civil-rights views he doesn’t know, or to have embraced a civil-rights philosophy at odds with the position he took as a candidate.

And he surely didn’t do his homework when he flung the attack our way. Since co-founding the Institute for Justice in 1991, my colleagues and I have fought relentlessly in the courts to help people outside the economic mainstream gain a share of the American Dream. Among many other cases, we are helping secure brighter educational futures for low-income children in Los Angeles and fighting for inner-city entrepreneurs whose livelihoods are being reclaimed from oppressive government regulation.

I’m sure Patrick has experienced similar rewards in his career as a public-interest litigator for the NAACP Legal Defense Fund, on whose board of directors Patrick now sits. But there’s an important difference between the aims of the Institute for Justice and the Legal Defense Fund, one that gave rise to our opposition to Guinier and the questions we raise of Patrick: the extent to which solutions to our society’s problems should be based on race.

Clinton seemed to recognize this distinction during the campaign, when he distanced himself from prevailing civil-rights orthodoxy and embraced equal opportunity rather than equality of results--a principle the overwhelming majority of Americans, both white and black, support.

But since his election, Clinton has veered from his rhetoric. His withdrawal of Guinier’s nomination evoked a firestorm from inside-the-Beltway civil-rights groups. Instead of sticking to his stated principles, he tried to placate these groups by filling the vacancy from their ranks. But he found, as a lawyer from one of the groups remarked to Legal Times, that Guinier’s views are widely shared within the civil-rights lobby.

That’s precisely the problem: groups like LDF, which did so much good for America, have moved away from the very civil-rights consensus they helped create. As even their own surveys demonstrate, the views of Establishment civil-rights groups on issues such as race quotas, busing and crime stray far from the views of mainstream Americans and people the groups claim to represent.

When Clinton went outside the fold to name District of Columbia corporation counsel John Payton to this post, the move was vetoed by the Congressional Black Caucus. Ultimately, Clinton returned for his nominee to the same organization that produced Lani Guinier.

The only sure difference between Guinier and Patrick, who both worked for the LDF, is that Guinier has published her views while Patrick has not. As an LDF lawyer, Patrick pushed the view that fair policies that produce disproportionate outcomes are unconstitutional--precisely the equal-results standard Clinton rejected in the campaign. The LDF in recent years has pursued an unabashedly race-conscious agenda, including quotas, set-asides and racially gerrymandered voting districts. It has argued that forced busing must continue decades after schools are desegregated, even if the burden falls on black children and their parents want it to stop. The question arises: Will LDF’s agenda be Patrick’s agenda in office?

The assistant attorney general controls a vast legal staff with wide discretion in cases involving employment, education, housing and voting matters that touch the lives of every American. The direction this official takes will in large measure determine whether we continue down the disastrous road of race preferences and social engineering or pursue a path of equal opportunity and individual empowerment.

Hence specific questions need to be asked about where Patrick stands on crucial civil-rights law enforcement issues. The answers may tell us a great deal about the President’s civil-rights agenda.

I hope the Senate Judiciary Committee will ignore Clinton’s histrionics and ask tough questions of Patrick. If so, we may find he is willing to move beyond the orthodoxy that has sapped the civil-rights Establishment’s effectiveness and moral vitality. I hope so.