Did Lani Guinier Really Mean It?
Andrews, James H., The Christian Science Monitor
LANI GUINIER, President Clinton's first choice to head the Justice Department's civil rights division, wrote herself out of the job.
After the University of Pennsylvania law professor's writings about the Voting Rights Act ignited a firestorm of controversy, the president himself read the dense articles. Stating that Ms. Guinier's radical proposals to redress political inequality for minorities were inconsistent with his own views, Clinton withdrew the nomination.
The Guinier episode, like President Reagan's unsuccessful nomination of Robert Bork to the Supreme Court in 1987, raises questions about the interplay of law, scholarship, and politics:
* Should legal scholars under consideration for a government post be held strictly accountable for their academic writings - or does this chill scholars' academic freedom to push the theoretical envelope, to test speculative hypotheses, or intellectually to play devil's advocate?
* Can scholarly writings on complex legal subjects - often intended for a sophisticated, specialized audience - be summarized accurately and fairly in newspaper op-ed articles or TV sound bites?
* Can a legal scholar nominated for office distance himself or herself, with intellectual integrity, from controversial writings - either saying he has revised his opinions or else insisting that, as a good lawyer, he will subordinate his personal views to established legal precepts?
Legal scholars seem to be virtually unanimous in their view that academics can and should be held accountable for what they write. "Legal writings should never be simply playful or trivial," says federal appeals Judge Richard Posner, who writes frequently for legal journals. "If you don't believe it, you shouldn't write it," echoes Prof. Mark Tushnet, a Critical Legal Studies scholar at Georgetown Law School in Washington.
Many academics comment, however, that the accountability process is fraught with the risk - especially in a confirmation proceeding - that complex legal analysis will be misrepresented and even caricatured by journalists, advocacy groups, and lawmakers. …