Affirmative action opinions in 1980s

Affirmative action opinions in 1980s in United States

Affirmative action opinions in 1980s

The Supreme Court had upheld and struck down several different types of racial preferences—
mainly in employment decisions—ranging from hiring, promoting, and layoffs. Each case
seemed to have an internal logic of its own, and broadly speaking, seemed to turn on the specific facts of the case more than any overarching, immutable principles of law. By the end of the 1980s, and as the Court was growing more conservative following three Reagan appointments, it had long been established that affirmative action was both legal and constitutional. It was unclear, however, how far the increasingly conservative Court would allow affirmative action policies to go, or conversely, whether this new coalition could garner a majority to end such policies in the future.

At the start of Bill Clinton’s presidency the legality of affirmative action was an open question.

***

City of Richmond v. Croson

On January 23, 1989, just three days after Ronald Reagan had left office, the Supreme Court tightened the noose on affirmative action programs nationwide. It was on this day in which the Court released its 6-3 opinion in City of Richmond v. Croson; the decision held far reaching implications both legally and symbolically for the future of affirmative action.

Writing for the majority, Sandra Day O’Connor struck down a minority set aside employed by the city of Richmond, Virginia. According to the policy in question, 30% of any given city contract was to be subcontracted out to minority run businesses. Rather than simply
delivering a narrow ruling on the case at hand, O’Connor went much further. The majority
opinion stipulated that all racial preferences implemented by state or local government agencies would now have to survive “strict scrutiny”. In other words, this meant that any such race-based policy would have to be narrowly tailored to serve a “compelling governmental interest”. The policy could not “unnecessarily trammel” the interests of non-minorities, and must be a product of having no race-neutral alternatives available to accomplish the same goal. Beyond mandating that all programs would now have to survive the most heightened of judicial scrutiny, the Croson opinion was also notable for the remarkably narrow language it used to define what now constituted a “compelling governmental interest”. Historically, if an institution or actor could show that they were in fact using the racially geared program to remedy the effects of prior discrimination, the Court would accept this as a sufficient government interest. More importantly, the institution or actor did not have to show they had specifically initiated the discriminatory behavior they were now correcting, and the beneficiaries of the program were never required to be the actual victims of the historical discrimination in question.
Much to the chagrin of Reagan’s Department of Justice, “victim specific” policies never became the Court’s ultimate requirement when upholding affirmative action programs throughout the 1980s. 1 In Croson, however, the now increasingly conservative majority suggested that the future of affirmative action may be legally circumscribed by a line of rationale that appeared only slightly removed from the “victim-specific” standard advocated by Reagan’s Justice Department throughout the previous decade.

In the opinion, O’Connor demanded that the city “…show that it had essentially become
a ‘passive participant’ in a system of racial exclusion practiced by elements of the local
construction industry…” (City of Richmond, Virginia v. Croson. 488 U.S. 469 (1989) Justice O’Connor majority opinion) Furthermore, O’Connor argued that “[t]o accept Richmond’s claim
that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group.” (City of Richmond, Virginia v. Croson. 488 U.S. 469 (1989) Justice O’Connor majority opinion)

Evoking sentiments strikingly similar to the race-blind pronouncements proffered by the
departing Reagan administration, O’Connor remarked that “The dream of a Nation of equal
citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” (City of Richmond, Virginia v. Croson. 488 U.S. 469 (1989) Justice O’Connor majority opinion)

In Firefighters Local Union No. 1784 v. Stotts (1984), Byron White had indicated in his
majority opinion that the Civil Rights Act of 1964 permits “…relief only to those who have been actual victims of illegal discrimination”. Despite the broad interpretation Reagan’s Justice Department gave to this, White’s victim-specific rationale was applied only to the narrow case at hand, one in which employers broke the rules of seniority in layoff decisions to retain minority workers. To be clear, White’s argument actually was meant to read “If you are going to break the rules of seniority on account of keeping minority workers, it is only constitutional to do so when granting relief to individuals who had been discriminated against in the past”. In subsequent cases the Court would uphold plans in which the beneficiaries were never in fact actual victims of discrimination. Sandra Day O’Connor’s concurring opinion in Wygant v. Jackson Board of Education (1986) made this clear when she pointed out that a “plan need not be limited to the remedying of specific instances of identified discrimination”.

While not accomplishing the endgame of Reagan’s Department of Justice—dismantling racial preferences entirely—the language of the opinion incorporated much of what the outgoing administration had fought for: in one fell swoop it made non-federal minority set-asides
inherently suspect and casted doubt upon the viability of race based policies in employment more generally. Charles Fried, who had stepped down as Solicitor General just one week earlier, told reporters that this decision “…would have made his four years in the job ‘worth it’ even if he had accomplished nothing else”. ( New York Times. 1989. Court bars a plan set up to provide jobs to minorities. January 24.) William Bradford Reynolds, the Assistant Attorney General throughout Reagan’s presidency, later remarked that Croson added to the sense that he had finally shifted the direction of the United States Supreme Court in a way that was closer to the former administration’s race neutral stance. (Wolters, Raymond. Right Turn. William Bradford Reynolds, the Reagan Administration, and Black Civil Rights.New Brunswick: Transaction Publishers, 1996.)

From a very different vantage point, Thurgood Marshall, at the age of 80 and sitting on the bench for his 21st term, could not help but agree with the significance attached to the Croson decision by the departing Reaganites. Marshall recognized that the delicate contours of affirmative action jurisprudence shaped by him and his colleagues in the earlier parts of the decade were being called into question. Writing a fiery dissent on behalf of himself, William Brennan, and Harry Blackmun, Marshall opened his opinion in Croson with forceful language to imply that the majority was not only racially insensitive, but also legally inconsistent:
It is a welcome symbol of racial progress when the former capital of the Confederacy acts forthrightly to confront the effects of racial discrimination in its midst. In my view, nothing in the Constitution can be construed to prevent Richmond, Virginia, from allocating a portion of its contracting dollars for businesses owned or controlled by
members of minority groups. Indeed, Richmond’s set-aside program is indistinguishable…[from] the federal set-aside plan which this Court upheld in Fullilove V. Klutznick (1980). (City of Richmond, Virginia v. Croson. 488 U.S. 469 (1989) Justice Marshall dissenting.)

Marshall called the majority opinion “…a deliberate and giant step backward in this
Court’s affirmative-action jurisprudence”, and one that “…launches a grapeshot attack on raceconscious remedies in general.”(City of Richmond, Virginia v. Croson. 488 U.S. 469 (1989) Justice Marshall dissenting.)

In retrospect, it is quite likely that even the more liberal Court of the early 1980s would
have struck down the plan in Croson, especially considering that the 30% set-aside was unusually high. However, the danger in the Croson opinion for liberals who still supported
various forms of affirmative action was its overly broad language. Marshall was quite obviously distraught by this, and continued his lengthy dissent by remarking that “I would ordinarily end my analysis at this point…However, I am compelled to add more, for the majority has gone beyond the facts of this case to announce a set of principles which unnecessarily restricts the power of governmental entities to take race-conscious measures to redress the effects of prior discrimination.” (City of Richmond, Virginia v. Croson. 488 U.S. 469 (1989) Justice Marshall dissenting.)

Marshall’s fears concerning the Court’s broad language in the opinion were not
unfounded. At the time of the decision there were similar set aside programs in 32 states and 160 other cities. ( Linda Greenhouse. 1988. Justices Weigh Sentencing and Racial Hiring. New York Times October 6.) What is more, Marshall himself had already produced a famous quote regarding strict scrutiny in an opinion nine years earlier, calling it “strict in theory…fatal in fact”, referring to the extremely low probability that an affirmative action policy subjected to this heightened judicial standard would ever be upheld. ( Fullilove v. Klutznick. 448 U.S. 448. (1980) Justice Marshall concurring.) With little he could do, Thurgood Marshall voiced his outrage from the impotent position of the minority as the Croson court made this fatal level of review the law of the land.
Marshall and the liberal trio were not alone in their dire assessment of what the Croson
opinion may entail. Following the decision, civil rights activists and scholars feared that cities across the United States would dismantle their affirmative action programs in order to avoid expensive litigation. In an attempt to counter this, Professor Laurence Tribe of Harvard Law School moved quickly to gather some of the most preeminent constitutional scholars and release an advisory statement on the state of affirmative action in light of Croson. On March 30, 1989, just over three months after the opinion was handed down, Tribe and 28 others convened a conference in Boston to discuss what practical impact the court’s ruling had on programs already in place. (Linda Greenhouse. 1988. From the frying pan as Solicitor General to the fire of renewed
academic debate. New York Times. December 29.)

The statement that ultimately came out of the conference is notable not only for what it
said, but also for the signatories it boasted. Listed were reputable names from the past, present, and perhaps most importantly, the future of civil rights policy. The deans of Harvard, Yale, Columbia, Chicago, Michigan and Berkeley law schools were listed alongside former government officials such as Eleanor Norton, the first female to head the Equal Employment Opportunity Commission under Jimmy Carter, and Burke Marshall, the Assistant Attorney General under John. F. Kennedy. Beyond this, three signatories are of particular note: Drew Days, Walter Dellinger, and Christopher Edley. The first two would serve as the first and second Solicitor General respectively during the Clinton administration, and the third would become one of Bill Clinton’s top advisors on civil rights and affirmative action, ultimately chairing a review on affirmative action policies nationwide (1988-1989. Constitutional Scholars’ Statement on Affirmative Action After City of Richmond
v. J.A. Croson Co. Yale Law Journal 98. (1711)). Signed by these influential figures, the statement was something of a manifesto on how to successfully protect affirmative action in light of heightened judicial scrutiny. It shot right to the heart of the matter, pleading that although in light of Croson “…some have recently argued that race-conscious remedies by local and state governments should be regarded as conflicting with the Constitution…we regard this assessment as wrong.”(1988-1989. Constitutional Scholars’ Statement on Affirmative Action After City of Richmond v. J.A. Croson Co. Yale Law Journal 98. (1711)).

More to the point, the scholars then spelled out the constitutional rules of engagement for
affirmative action plans according to the Court’s precedents. They made it clear that there was a
fundamental difference between using race to advance permissible objectives such as correcting
historic discrimination or promoting diversity versus using race to achieve malignant racial
exclusion. Local governments did not have to document past discrimination to implement a
program, they argued, and programs are not to be limited to “redressing the effects of that
government’s or body’s own past discrimination”.
Advancing their argument one step further, the scholars finished by touching upon a less
robust area of the court’s jurisprudence: promoting diversity in education. Since the 1978
decision in Regents of the University of California v. Bakke,15 the Court had said very little as to
the extent to which affirmative action programs could be upheld based on the promotion of
diversity alone. The scholars hit on just that point, recalling:
In educational settings in particular…the Supreme Court has recognized not only the
crucial role of racial integration…but also the positive educational value of assuring
racial diversity and facilitating multiracial experiences. Some Justices have explicitly
treated this value as a sufficiently compelling governmental interest to justify raceconscious
measures in education. See Regents of the University of California v. Bakke. (1978), where Justice Powell wrote a
plurality opinion striking down the use of racial quotas in admissions decisions, but allowed for
race to be used as one “plus factor” to advance the compelling interest of diversity in higher
education.

And the Supreme Court as a whole has not yet
resolved the issue of what goals other than overcoming historic discrimination may
provide permissible grounds for race-conscious measures in areas outside education (see above, 1713)

In many ways, this statement reflected the lessons of affirmative action going into the
1990s. Three conservative Reagan appointments to the Supreme Court later, it was clear that all
but the most exceptional variants of affirmative action would be viewed suspiciously. Despite
this, the Court was still bound by the tradition of stare decisis, and the 1980s had witnessed
several cases in which contract set asides and employment decisions based on race and gender
had been upheld. For examples of racial set asides and preferences see Fullilove v. Klutznick (1980),
Firefighters v. Cleveland (1986), Local 28 Sheet Metal Workers v. EEOC (1986). For gender
being used as a plus factor in promotion decisions see Johnson v. Transportation Agency, Santa
Clara County (1987).

Moving forward, the debate over affirmative action became a battle of
interpretation. That is, liberals would push the idea that the Court had implicitly allowed for all
types of affirmative action except for that which they had explicitly prohibited. Conservatives on
the other hand, would argue that the Court’s suspicion implied banning all but the most
More precisely, on the 1988-1989 Court Justice Stevens, Blackmun, Brennan, and Marshall
had all implied in previous opinions they would consider the promotion of diversity a compelling
governmental interest in its own right. Justice O’Connor had not explicitly ruled it out, and had
stated that “although its precise contours are uncertain, a state interest in the promotion of racial
diversity has been found sufficiently ‘compelling’, at least in the context of higher education”
necessary forms of affirmative action. How these differing points of departure would play out in
practical terms was anything but clear at the start of the new decade. More to the point, it would
take cases such as Piscataway v. Taxman to test how these vague rules would be applied in the
real world.
As the constitutional scholars had suggested, the Court was going to have to better
articulate what “goals other than overcoming historic discrimination” would survive scrutiny in
court. The Taxman case would ultimately center on this very question and it appeared to be one
of the most open areas for debate heading into the 1990s. In fact, just nine days into the new
decade and less than one year after Croson had been decided, the Supreme Court granted
certiorari in a case that would grapple with this very issue. (Linda Greenhouse. 1990. Reviving Affirmative-Action Issue, Court will Decide on F.C.C.
Rules. New York Times. January, 9.)

The case was Metro Broadcasting Inc. v. Federal Communications Commission, and on
June 27, 1990, the Court made something of a surprise decision. Justice William Brennan,
writing the 5-4 majority opinion, upheld two F.C.C. programs that awarded preferences to
minorities in the issuance of broadcast licenses. The rationale used to uphold the policies,
perhaps more so than the holding itself, is of particular importance. Brennan’s majority opinion
declared, “We hold that benign race-conscious measures mandated by Congress—even if those
measures are not ‘remedial’ in the sense of being designed to compensate victims of past
governmental or societal discrimination—are constitutionally permissible…” (Metro Broadcasting Inc. v. Federal Communications Commission. 497 U.S. 547 (1990) J.
Brennan majority opinion.)
Furthermore,
Brennan maintained, the F.C.C.’s interest in “enhancing broadcast diversity” was an “important
governmental objective”. In keeping with past precedent, the Court required the federal
affirmative action program to only pass the so-called “intermediate level” of scrutiny test. In Fullilove v. Klutznick (1980) a plurality of the court had decided that affirmative action
programs enacted by Congress should be given greater deference, and thus only have to survive a
lower level of scrutiny in order to be upheld, a standard the Court calls “intermediate scrutiny”.

Under this level of review, the F.C.C.’s minority preferences were deemed constitutionally
sound.
Moreover, the opinion’s language regarding the “fostering of diversity” as a permissible
goal held powerful implications. For this reason, Justice Stevens concurred in both the opinion
and judgment of the Court, but wrote separately to highlight the significance of Brennan’s
rationale. Opening his concurrence, Stevens observed that “Today the Court squarely rejects the
proposition that a governmental decision that rests on a racial classification is never permissible
except as a remedy for a past wrong.”(see above, J. Stevens concurring).

More specifically, he pointed out that “The public interest
in broadcast diversity, like the interest in an integrated police force, diversity in the composition
of a public school faculty or diversity in the student body of a professional school, is in my view
unquestionably legitimate.”(see above)
Response to the Metro decision was predictable. On the left, legal scholars speculated
that the Court may be receptive to applying the diversity argument to uphold affirmative action
programs in other areas. Some affirmative action enthusiasts were even more sanguine,
interpreting Metro as an invitation to overturn the previous term’s Croson decision.
(Neil Lewis. 1990. Court Ruling Encourages Affirmative Action. New York Times. July 4.)

Conservatives such as Charles Fried, however, disagreed, and lamented that the type of minority
set-asides upheld in this instance were a “ ‘ready-made source of corruption’ that rewarded
people who needed help the least: wealthy minority entrepreneurs…” (see above)
What both sides could agree on, however, was the tenuous nature of the court’s approval
for affirmative action policies at the moment. The swing vote in Metro was provided by Justice
Byron White, whose decision to join the majority appeared much more a product of his
deference to congress’ authority in crafting remedial legislation than any liberal proclivities on
the affirmative action issue itself. Thus, when Thurgood Marshall announced his retirement
from the bench exactly one year later in June of 1991, it was clear that an anti-affirmative action
coalition could be in the making.
***
President George H.W. Bush, though not advocating the type of categorical rejection of
affirmative action taken up by his predecessor, was equally opposed to any sort of racial
preferences that bordered on the idea of rigid quotas. His administration would ultimately be
forced to sign into law a bill that Reagan likely would have rejected: The Civil Rights Act of
1991.( Anderson, Terry. The Pursuit of Fairness. Oxford: Oxford, 2004. (212)).
To anti-affirmative action Reaganites who rallied behind the idea of race-neutrality,
Bush’s most important accomplishment on this front was the successful appointment of Clarence
Thomas to the Supreme Court in July of 1991.
Clarence Thomas was something of an anomaly. Looking to burn the bridge that had
ultimately enabled much of his own personal success, Thomas adamantly opposed racial
preferences of all kinds. In a Yale Law and Policy Review article, Thomas derided affirmative
action as “social engineering”. (Maureen Dowd. 1991. Conservative Black Judge, Clarence Thomas, is named to Marshall’s
Court Seat. New York Times. July 2.)

Moreover, during his eight-year tenure as chairman of the Equal
Employment Opportunity Commission (EEOC), Thomas moved the agency in an increasingly
conservative direction, leaving it in 1990 as an institution far removed from the enforcement
vehicle it was in the 1960s and 70s. By the mid 1980s Thomas had effectively taken the teeth
out of the EEOC, discouraging the use of statistical disparities to prove discrimination in
employment, and advising staff lawyers to discontinue proposing settlements that utilized goals
and timetables to increase minority representation in the work force.

Robert Pear. Court Nominee Defied Labels As Head of Job-Rights Panel. New York Times
July 16.
Stuart Taylor. 1991. Beware the Judicial Override. New York Times. October 3. Taylor’s
article cites an unpublished opinion in which Thomas struck down an F.C.C. policy that
preferred women for broadcast licenses, a policy strikingly similar to that upheld by the Court in
Metro Broadcasting Inc. v. F.C.C. Had Thomas sat on the court for Metro it is all but certain the
opinion would have been 5-4 in the opposite direction.

Clarence Thomas along
with others such as William Bradford Reynolds, the Assistant Attorney General from 1981
through 1988, and Clint Bolick–– a special assistant to both of these individuals–– was part of
the cadre under Ronald Reagan who shaped the “zero is best” approach to affirmative action.
The only thing deterring their absolutist stance from being adopted on the ground was the law of
the land itself. Liberals were justified then in fearing what placing Thomas on the bench entailed
for the future of affirmative action jurisprudence.31
An article covering the changing of the guards from Thurgood Marshall to Clarence
Thomas correctly observed “It comes amid a growing debate over the policies of affirmative
action and racial preferences. The political consensus supporting those policies, increasingly
fragile in recent years, seems frayed, and civil rights groups and their allies are increasingly on
the defensive, both in the courts and in the political realm.” (Robin Toner. 1991. Symbolic Justice; Capturing an Era’s Racial Conflicts and Ironies. New
York Times. July 7.)
For civil rights groups, Thomas’
52-48 confirmation in the Senate was the confirmation of something much larger: It was official
that moving forward the Supreme Court was no longer an amicable medium in which to further
or even maintain most liberal civil rights interests. Legal weapons such as the Civil Rights Act of
1964 had long been turned on their heads, and groups that had historically looked to the courts
for help were now focused on keeping their cases out of them. As the Piscataway v. Taxman case
will show, the legal and political reality of the 1990s meant that allowing courts to better define
what types of race-based policies were permitted meant risking the loss of affirmative action
programs that had been deemed acceptable ten or twenty years earlier.
***
This was the reality that confronted Bill Clinton when he entered office in 1993. Clinton
was open about his desire to make his cabinet “look like America” by appointing men and
women of all races to fill various posts. More importantly for civil rights policy, Clinton also
made it a point to fill most key positions in the area of civil rights enforcement with figures from
historically liberal civil rights groups. In the Department of Justice, Deval Patrick, Bill Lann Lee,
and Kerry Scanlon—each of which who had worked for the NAACP Legal Defense Fund—
would take the most important posts in the Division of Civil Rights. Isabelle Pinzler would serve
as one of the top deputies in this division, and had come from the American Civil Liberties
Union.(Clint Bolick. Civil Rights Law Enforcement: A Time For Healing. Harvard Journal of Law
and Public Policy. 24 Spring 2001.)
Drew Days, who also spent several years at the NAACP Legal Defense Fund before
becoming the first African American Assistant Attorney General under Jimmy Carter, was
picked to be Clinton’s first Solicitor General—a position with immense independence in the
litigation of the law before the Supreme Court. (Drew Days. When The President Says ‘No’: A Few Thoughts on Executive Power and the
Tradition of Solicitor General Independence. The Journal of Appellate Practice and Process Vol.
3 No.2. Fall 2001).

To chair the Equal Employment Opportunity Commission Clinton ultimately selected
Gilbert Casselas from the Puerto Rican Legal Defense Fund. Casselas’ recognition that the
agency, which had grown lax under Clarence Thomas’ watch in the 1980s, needed to be
reinvigorated was captured at his press conference when he remarked that “By the end of my
term, I hope people worry when they get a call from the EEOC.” (Bovard, James. “Feeling your pain”: The explosion of abuse of government power in the
Clinton-Gore years. New York: St. Martin’s Press, 2000.)
Rounding out the important
civil rights related posts was Norma Cantu, formerly a director of the Mexican-American Legal
Defense and Education Fund, for Assistant Secretary for Civil Rights at the Department of
Education. And finally, Clinton appointed Roberta Achtenberg as Assistant Secretary for Fair
Housing and Equal Opportunity at the Department of Housing and Urban Development (though later confirmed, at the time of Achtenberg’s nomination, Republican Senator Jesse
Helms said he would oppose her “because she’s a damn lesbian”. See Al Kamen. 1993. Helms
on Nominee: ‘She’s a Damn Lesbian’. The Washington Post. May 7);

Achtenberg was formerly the executive director of the National Center for Lesbian Rights.

On paper then, it would seem as if Bill Clinton had the opportunity, barring any
impediments from the federal courts, to regain the territory lost by liberals in the area of civil
rights under Reagan and Bush. To be fair, in some areas, such as disparate impact litigation,
Clinton’s team of liberals vigorously enforced the law. (a discussion of the Office of Federal Contract Compliance and their
vigorous assault on companies that allowed for policies which had disparate impacts on
minorities).
However, as the Taxman case will
exemplify, in areas such as affirmative action, where enforcement entailed national attention and
the possibility of negative scrutiny in the press, Clinton’s political sensitivity and inclination for
popular compromise threw the more liberal stances to the fan.
Despite having the support of over 80% of blacks that voted in the 1992 election, Clinton
was largely supported by a base of “New Democrat” moderates who envisioned a more limited
version of affirmative action. Clinton was sensitive to this fact, and was loath to support some of
the more liberal policies openly endorsed by his executive appointments. Perhaps at no point was
Clinton’s lack of political gumption on civil rights more obvious than in the weeks after he made
the decision to appoint Lani Guinier to Assistant Attorney General.
For Bill Clinton, Lani Guinier was a natural choice for the post of Assistant Attorney
General. As William Bradford Reynolds had shown under Ronald Reagan, the position offered
the opportunity to influence the direction of civil rights policy, as it entailed formulating the
litigation strategy for major civil rights cases in the lower federal courts, where the vast majority
of cases would ultimately be settled. Lani Guinier had spent the 1980s as a staff attorney for the
Legal Defense Fund and had even litigated several voting rights cases against Clinton during his
time as Arkansas governor. On a personal level, she had attended Yale Law School with the
President and First Lady, and had even invited them to her wedding. In fact, just three days into
the new presidency, Lani Guinier hosted a small private dinner party for Bill and Hillary
Clinton.( Guinier, Lani. Lift Every Voice. New York: Simon & Schuster, 1998.)
On April 29, 1993, Clinton announced Guinier as his nominee for the crucial civil rights
job. With the help of former Reagan official Clint Bolick, however, controversy began
surrounding the appointment within a single day. On April 30th, Bolick penned an acerbic attack
on two of Clinton’s nominees, Lani Guinier and Norma Cantu, for the Wall Street Journal in an
editorial entitled “Clinton’s Quota Queens.” (Clint Bolick. Clinton’s Quota Queens. Wall Street Journal. April 30.)
Bolick used law review articles Guinier had
written to paint her as a radical leftist who was not only firmly in support of racial quotas, but
fundamentally opposed to the principle of “one-person one vote”. Laurence Tribe and Randall
Kennedy, both renowned constitutional scholars at Harvard Law School, would later remark that
a fair reading of Guinier’s articles could easily disprove Bolick’s comments. (Randall Kennedy. 1993. Lani Guinier’s Constitution. The American Prospect. September 21.)

For the time
being, however, Clint Bolick had set the agenda for conservatives who were opposed to Bill
Clinton’s revamping of civil rights policy in the executive branch.
During the initial two weeks following the nomination, criticism remained largely
confined to circles on the right. With mainstream America still largely apathetic on the issue,
Clinton was still willing to openly support Guinier, and on May 11, during a speech to the
Leadership Conference on Civil Rights, Clinton briefly came to her defense:
I thank you for the vote of the national board of the leadership conference today to
support the nomination of Lani Guinier to be Assistant Attorney General for Civil Rights.
I want to say a special word of support for Lani Guinier. I went to law school with her,
and I announced at the Justice Department the other day when we announced all of our
Assistant Attorneys General that she had actually sued me once. Not only that, she
didn’t lose. And I nominated her anyway. So the Senate ought to be able
to put up with a little controversy in the cause of civil rights and go on and confirm her so
we can get about the business of America.(William Jefferson Clinton. Remarks to the Leadership Conference on Civil Rights. May 11,
1993.)
By the latter part of May, however, attacks on Guinier snowballed, and grew into a major
story in the national press. On May 21, the Washington Post recapped the charges initially
brought by Bolick, and included discouraging statements from Democratic congressmen. Senator
Patrick Leahy commented that “If the writings I’ve seen so far reflect the way she feels about
how the Civil Rights Division should be run, then it would be a complete aberration and in no
way would be acceptable to me”. Senator Joseph Biden added that at her confirmation “there will
be a fair amount of explaining to do.” Mic(hael Isikoff. 1993. Confirmation Battle Looms Over Guinier. Washington Post. May 21.
Isikoff later admitted that the coverage did not accurately portray Guinier’s views, but he argued
that the articles were meant to simply cover the controversy. For a discussion about this and how
the media put a spin on Guinier’s views without ever fact checking with her actual law review
articles, see Laurel Leff “The making of a quota queen” from Martha Fineman. Feminism,
media, and the law. New York: Oxford University Press, 1997).

Regardless of the actual merit of Guinier’s writings, her nomination soon took on an even
larger meaning for moderates who supported Clinton. On May 23, the press took the story one
step further. The New York Times described the “bedrock” of Clinton’s electoral base as being
“frightened and angry” over a “long list of signals they feel send a message of overwhelming
liberalism to voters…like the choice of the civil rights litigator Lani Guinier.” (Michael Kelly. 1993.’New Democrats’ Say Clinton Has Veered Left and Left Them. New
York Times. May 23)
This story was
juxtaposed with “A Gallup poll conducted May 10-12 [that] found only 45 percent of the
respondents approved of the job Mr. Clinton was doing, a record low for a President this early in
his term.”( Michael Kelly. 1993, see above).

From May through the beginning of June over 330 articles appeared in the national
press covering the Guinier controversy46, most of them with titles implying she was a “radical”
and that Clinton was retreating “leftward.”(See Lally Weymouth. 1993. Lani Ginier: Radical Justice. Washington Post. May 25. See also
Robert Novak. 1993 Post-Campaign Leftward List. Washington Post. May 27.)

Even the New York Times Op-Ed page was framing
the nomination as an indictment against Clinton, noting that “questions about how she came to
be nominated are as important as she is herself…How could he have done such a thing?” Based
on her nomination alone, the president was no longer “the Bill Clinton who had stood against
quotas during the campaign.” (A.M. Rosenthal. 1993. On My Mind; Clinton Voter Stays Glad!. New York Times. May 28.)

By the beginning of June the attacks had taken a toll on the politically sensitive president.
Early in the day on June 2nd, Clinton cautioned that “he did not agree with all of her writings on
civil rights and needed to consult with senators before determining how to proceed.” (Michael Isikoff. 1993. Administration Leaves Guinier in Limbo. The Washington Post. June 3.)
A last
ditch effort by Guinier to defend herself on Nightline was of no avail. On June 3rd, much to the
chagrin of the civil rights establishment, Clinton withdrew Guinier’s nomination. (Neil Lewis. 1993. Aides Say Clinton Will Drop Nominee for Post on Rights. New York Times.
June 3.)

At the press conference announcing the withdrawal, Clinton came down hard on
Guinier’s law review articles, commenting that “They clearly lend themselves to interpretations
that do not represent the views that I expressed on civil rights during my campaign, and views
that I hold very dearly…had I read them before I nominated her, I would not have done
so.” (Transcript of President Clinton’s Announcement. 1993. New York Times. June 4.)

After his remarks were given, one reporter commented quite pointedly, “Mr. President,
there’s a perception among some of your critics among the Black Caucus that your move to the
center and your desire to have conservative Democratic votes in the Senate on your economic
plan and your health plan to come played a large role in this…”52 A conversation between
Guinier and Clinton behind closed doors just before the withdrawal announcement implied a
similar idea. Clinton told Guinier, “…my problem is with your articles and what other people are
saying about them, and it will be divisive to have this conversation [in the senate] and I need
these senators’ support on other things.”
In his 2004 autobiography, Clinton sounded a similar tone when recapping the Guinier
withdrawal. Clinton recalls a conversation with Senator David Pryor, in which he was reminded
“that we also have an economic program to pass and not a vote to spare”. Regardless of this
political explanation, Clinton’s memoir maintains that Guinier’s articles were “in conflict with
[his] support for affirmative action and opposition to quotas, and seemed to abandon one man,
one vote.” ( Clinton, Bill. My Life. New York: Vintage Books, 2004)

Clinton’s fear of losing support among moderate Americans and congressional support
from moderate Democrats was telling. It signaled from the start of his presidency that on the
hierarchy of objectives, refashioning a strong civil rights agenda to counter the retreat that
Reagan had begun twelve years earlier was far below many of Clinton’s other goals. As
Guinier’s withdrawal suggested, Clinton would remain supportive of liberal civil rights causes
only insofar as they did not alienate his more moderate base of supporters.
Ibid.


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