June 24, 2024


Unlimited Technology

How a Celebrated Legal Scholar Got Swept Up in the Political Spin Machine

On Jan. 7, a “breaking news” alert flashed across my smartphone screen with word that the legal scholar Lani Guinier, the first woman of color appointed to a tenured professorship at Harvard Law School, had died at 71. Many Americans will recognize Guinier for her legal contributions on voting rights and affirmative action, as well as her controversial, ultimately failed nomination to serve in President Bill Clinton’s Justice Department. For me, her death was a reminder of the night, nearly 30 years ago, when I met her at the beginning of what might have been the worst 24 hours of her professional life.

Back then, those of us in the control room of Ted Koppel’s late-night news program, “Nightline,” where I was a senior producer, still relied on the wire services and print newspapers, not smartphones, for breaking news. What was called the bulldog edition of the next morning’s Washington Post would arrive in the ABC News Washington Bureau around 11 p.m., a half-hour before “Nightline” aired live. The early edition of the New York Times would land at ABC News headquarters in New York around the same time and then be faxed to Washington. Those papers often alerted us to a story that might provide fresh details for the “Nightline” broadcast that was just minutes away. And those early editions were especially consequential on the night of June 3, 1993.

That evening, “Nightline” had an exclusive interview with Guinier, whom Clinton had nominated over a month earlier to be assistant attorney general for civil rights in his new administration. At the time, conservatives were still smarting from Clarence Thomas’ rough treatment during his Supreme Court confirmation hearings a few years earlier, and they were eager to turn the tables on the Democrats. Guinier started taking fire. On the Wall Street Journal opinion page, under the headline “Quota Queen,” conservative activist Clint Bolick accused Guinier of advocating for “racial quotas in judicial appointments.” Even though Guinier had written just four years earlier that she was opposed to quotas to guarantee representation of minorities, the critique started to stick. Even some Democratic members of the Senate Judiciary Committee, notably the chair, Sen. Joe Biden, grew lukewarm about Guinier.

The chaos surrounding her nomination followed her to the ABC Washington bureau that June night — a moment unlike any other in my nearly 20 years as senior producer. Whether she liked it or not, forces outside Guinier’s control were shutting the door on her nomination. It was becoming clear there would be no appearance before the Judiciary Committee and that a president new to the ways of Washington was losing faith in his own nominee. The political spin machine — still alive and well today — was taking hold of the “narrative.” By a quirk of timing, “Nightline” turned out to be Guinier’s last shot to explain her legal ideas in the court of public opinion before it was too late.

Approaching 10 p.m., with less than two hours to air, what had been an on-again, off-again interview that evening was on again. But as Guinier arrived for the broadcast, we had just read the Washington Post headline and were stunned: “GUINIER NOMINATION NEAR WITHDRAWAL.” The New York Times headline also didn’t mince words: “AIDES SAY CLINTON WILL DROP NOMINEE FOR POST ON RIGHTS.” The timing was jolting. The story was changing just as the woman at the center of it appeared in the green room.

Koppel could be a tough interviewer and a demanding boss but also funny and personable, especially when greeting a guest before the broadcast. It was standard practice for him not to discuss the upcoming interview, but on this night, when he saw Guinier in the green room, he told her, “I don’t want to sandbag you on the air.” He not only showed her what had just been published in the papers but also gave her the chance to bow out of the broadcast. A lovely gesture, but, with less than half an hour until air, it left the few members of the producing staff on hand, including me, to wonder what the heck we would put on the show if Guinier took Koppel up on his offer.

Accompanied by two Justice Department officials, Guinier asked for a few moments to review the stories and to talk with the Clinton administration aides. As former producer Kyle Gibson wrote in Nightline, the book she co-authored with Koppel, “until now Guinier had not made one public statement in defense of her legal writings, even though criticism had mounted for weeks.” The Clinton administration had instructed the nominee to remain silent until finally giving her permission to appear on our show, even though the president was reportedly preparing to pull the nomination.

With time seemingly running out, Guinier apparently realized this might be the last chance to defend herself, clear up the confusion over the quota debate and, just possibly, save her nomination. She told Koppel she wanted to go forward with the broadcast, what would be her first-ever interview on national television.

With so much riding on this interview, you would have thought Guinier would be a bundle of nerves. But when she sat across from Koppel, a calm seemed to come over her. Given the Post and Times reports, Koppel began by asking Guinier if the White House “at least had the courtesy to tell you that, as far as they’re concerned, things are rapidly coming to a close here.”

“The nomination has proven a lot more complicated than was anticipated,” she responded, adding, “If given an opportunity to testify before the Senate, I believe the Senate will vote to confirm me.”

Koppel expressed sympathy about “the circumstances under which you have come here tonight.” But he told Guinier she hadn’t answered his question about whether she received any advance warning from the White House.

“I really can’t tell you what is going to happen. I am the nominee,” she replied.

Koppel then asked her about the Q-word that had so dominated the controversy around her nomination: “You did indeed call for the Senate Judiciary Committee to use its power of advice and consent — I think the way you put it — to ensure that more people from minorities get judicial appointments. Now doesn’t that amount to a quota?”

“I do not believe in quotas,” Guinier replied. “I have never advocated quotas, and the one sentence in that one article was a reference to exactly what President Clinton has talked about in terms of making his Cabinet look like America, and that is a more diverse federal bench.”

Although Guinier supported alternative voting systems such as cumulative voting and supermajorities in legislative bodies, she made clear to Koppel she did not support weighted votes for minority politicians.

As the interview concluded, Koppel asked, “You still think you have a chance?”

Guinier expressed confidence: “I have every expectation that, if given a chance, I will succeed.”

That chance she sought before the Senate Judiciary Committee never came. According to Guinier’s account in Gibson’s book, White House and DOJ aides told her the next morning that her “Nightline” appearance had generated a flood of calls that were “eight-to-one, 12-to-one in my favor.” But she also received calls from top White House officials she described as “very angry because I suggested that I should have a Senate hearing.”

On the evening of June 4, Guinier was summoned to the Oval Office to face Clinton, her friend from their Yale Law School days. A witness to the nearly hourlong meeting told me that Clinton informed Guinier what he would soon announce in the White House briefing room — that he was withdrawing h
er nomination. Her writings, he would tell reporters, “clearly lend themselves to interpretations that do not represent the views I expressed on civil rights during the [presidential] campaign.”

The decision drew strong rebukes in certain quarters. William Coleman, a Republican Transportation secretary under President Gerald Ford and the first African American to serve as a Supreme Court law clerk, called Clinton’s decision “political cowardice.”New York Times columnist Anthony Lewis wrote, “Professor Guinier was the target of the most effective smear campaign seen in Washington since Joe McCarthy’s day.”

Since the failed nomination of Robert Bork to the Supreme Court, Washington has seen its share of ugly partisan confirmation battles. But Guinier never reached the hot seat in hers. She suffered from something different: benign neglect from the White House that nominated her. The Clinton administration didn’t anticipate that her enemies would define her so effectively from the get-go and never launched a full-on counteroffensive to neutralize that narrative. Perhaps her academic writings were ahead of their time. Or perhaps she was simply a victim of a new administration not yet schooled in the art of whack-a-mole or knowing how to tamp down multiple crises as each pops up.

That Guinier stood firm under withering attack is just one of her many legacies, along with her celebrated work on voting rights and affirmative action. We’ll never know if she would have been confirmed had she been given the opportunity to make her case before the Senate Judiciary Committee. Instead, she had to settle for an 11th-hour television interview — and only after her critics had free rein for more than a month to take their best shot at her.

“It was as if, until that time, I had been a defendant in a criminal trial in which neither I nor my attorney had been allowed to speak, while the prosecution accused me of all sorts of things,” Guinier would later tell Gibson. “So finally, I was about to speak for myself.”

Source News