Lani Guinier's Constitution

When President Clinton abandoned Lani Guinier, she became the latest in a string of jilted appointees dumped once controversy arose. Guinier, who was nominated as head of the Justice Department's civil rights division, was a respected civil rights lawer, legal theorist, and Friend of Bill, whom she has known since their days at Yale Law School. Why ultimately did he abandon her nomination? What in her writing as a University of Pennsylvania Law School professor prompted such bitter opposition? Did the president err in nominating her-- or withdrawing her nomination? What is the meaning of this affair in the ongoing struggle for the soul of the Democratic Party?

A hard-nosed political calculation best explains why Clinton dumped Guinier: he believed that he stood to lose less by abandoning than supporting her. Other considerations--personal, accidental, and ideological--also played a role. Clinton has shown that, unlike Presidents Reagan and Bush, he has no strong sense of attachment to people whom he exposes to attack. And he felt he was losing his grip on his presidency as a result of setbacks large and small. At the very moment the debate over Guinier became most intense, Clinton was seeking to regain his footing by openly moving rightward, a move best symbolized by his hiring of David Gergen.

Clinton said he changed his mind about Guinier because, upon actually reading her work, he found it at odds with his own views. It probably is true that Clinton disagrees with some of what Guinier has written. But neither that nor the reasons noted above fully explain why he dropped her.

Had opposition to Guinier been limited to conservative Republicans, Clinton surely would have stood by her. But the opposition included the centrist-liberal New York Times, New Democrats like Al From of the Democratic Leadership Council, and neanderthal liberals such as A.M. Rosenthal. Joseph Biden, chairman of the Senate Judiciary Committee, was openly skeptical, and even Edward Kennedy, one of the Senate's most stalwart liberals, distanced himself. Thus in addition to predictable Republican opposition, Guinier faced opposition from important sectors of the Democratic Party. In fact, her only solid base of support was the civil rights establishment including the Congressional Black Caucus (CBC). Clinton does not wish to offend that establishment gratuitously, but he is willing to offend to avoid alienating other allies whom he perceives as more essential to his presidency.


WHAT NEW DEMOCRATS UNDERSTOOD

The Democratic right and center correctly perceived that Lani Guinier's racial politics sharply differ from theirs. At the same time, many of these opponents failed to understand large aspects of her work. I doubt that A.M. Rosenthal actually read and understood Lani Guinier's writings before writing that she stands for "racial polarization" and for "setting black and white politically and legally apart." And both Bill Clinton and Vice President Al Gore sputtered to the verge of incoherence when they were challenged to specify precisely the aspects of Guinier's writings to which they objected.

But this critique cannot be pushed too far. After all, even the most intellectually rigorous observers depend upon second-hand or third-hand information in evaluating policies or politicians. Does one really have to read the collected writings of David Duke before denouncing him? And if some of Guinier's opponents rejected her solely on the basis of what they had heard as opposed to what they knew from personal study, isn't the same true of her supporters? Did members of the Congressional Black Caucus studiously examine her work before announcing their ringing endorsements? For all the ignorance, exaggeration, and misunderstanding that animated the campaign against Guinier, there was an accurate perception that, whatever its particulars, her work reflected a racial politics at odds with that of centrist and conservative liberals, the chief constituency of the New Democrats.

In "Keeping the Faith: Black Voters in the Post-Reagan Era"--the first of the four law review articles that mainly constitute the public record of Guinier's thinking on racial policy--she articulates themes that clearly indicate why many New Democrats (not to mention Republicans) would oppose her nomination as the administration's leading voice on civil rights policy. "Keeping the Faith" harshly criticizes the Reagan administration's racial policies, particularly its slack enforcement of the Voting Rights Act, noting that under the stewardship of William Bradford Reynolds, the Justice Department's civil rights division "had contributed to an increasing sense of isolation among African Americans." While this might anger some conservatives--especially insofar as she describes the newly inaugurated George Bush as "the president of the white electorate"--it alone would not bother Clinton's New Democrat allies, many of whom vaguely perceive the Reagan-Bush racial policies as "divisive."


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What would upset these allies, however, is a second aspect of Guinier's writing. She not only condemns the Republicans who "refused to court the black vote at all" but also castigates Democrats. Mainstream Democrats, she writes, have "taken blacks for granted" and "do not accept black Democrats, such as Jesse Jackson, as legitimate party spokespersons." Taking aim at the low priority Michael Dukakis placed on issues of racial justice in his presidential campaign, Guinier writes that "the vision Democrats offered in 1988 hardly mentioned, even indirectly, problems of race, and . . . deliberately ignored connections between racism and poverty."

"The Democratic Party," she charges, "has responded to racial polarization by distancing itself from black interests." Pursuing and broadening her point, Guinier argues that "Democrats who control both Houses of Congress seem unaware that reciprocity in bargaining requires the active promotion of black interests, not just the occasional subvention and authorization of civil rights enforcement. In other words, black legislative issues can be ghettoized from the Left as well as the Right." She asserts, moreover, that "the Democrats' policy of benign neglect toward African Americans has not gone unnoticed." Arguing that blacks' support for Democrats has far outstripped Democrats' support for blacks, she raises the specter of black withdrawal from the Democratic Party.

This critique plainly marks her as part of the left-wing contingent of the Democratic Party, the sector that would like to elevate the plight of the poor--particularly poor racial minorities--to a higher place in the party's policy priorities, the sector that abhors the quietistic stance on racial matters taken by the Dukakis and Clinton campaigns, the sector that worries that the price it pays for remaining part of the Democratic Party coalition is not worth the benefits it receives, the sector whose politics are more in tune with Jesse Jackson and the Nation than Bill Clinton and the New Republic.

The antagonism between Guinier's perspective and that of New Democrats was presaged by a brief reference in "Keeping the Faith" to a New York Times Magazine article by Joe Califano, who served as Jimmy Carter's secretary of health, education, and welfare. In "Tough Talk for Democrats" (Jan. 8, 1989), Califano articulated a message that has subsequently been pressed by Barney Frank (see Speaking Frankly), Thomas B. Edsall (see Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics), and Jim Sleeper (see The Closest of Strangers: Liberalism and the Politics of Race in New York), institutionalized by the Democratic Leadership Council and the Progressive Policy Institute, and tested in electoral competition by Bill Clinton and Al Gore.

Asserting that "the rebirth of the national Democratic Party does not mean abandoning or even tempering our commitment to social and economic justice," Califano wrote that recapturing the White House would necessitate "enduring the painful labor of asking why so many whites perceive us as the party of blacks and special interests, soft on crime and naive about defense." Observing that "racism haunts the American attic like a malevolent specter, denying peace to anyone who would live in the house," Califano also argued that Democrats must be willing to reexamine well-intentioned policies, singling out busing ("a counterproductive failure") and affirmative action (a policy whose time for justified continuation was "running out").

In her article, Guinier responds to Califano in the way that many on the Democratic left interact with the party's right. "Now," Guinier notes (with what I imagine to be a tone of exasperation), "even progressive political, social and economic analysts have begun discounting or ignoring pervasive vestiges of America's racist heritage."


THE ROLE OF RACISM

Two other aspects of "Keeping the Faith" underline subjects over which Guinier and New Democrats were bound to clash. One concerns the nature and definition of race relations. New Democrats stress that what appear to be racial differences in outcomes increasingly stem from differences in preparation or training as opposed to current, invidious racial discriminations. Guinier, by contrast, emphasizes the continuity of racism as the all-important force shaping race relations. Blacks, she writes, are "still the pariah group."

Another inevitable clash was over race-based affirmative action. New Democrats tend to be skeptical of the justice and efficacy of affirmative action. By contrast, Guinier seems committed to extending race-based decision making. Consider the following suggestion from "Keeping the Faith":

The Congress can play an important role in encouraging diversity in the appointment process by withholding its advice and consent until enough nominations have been made to establish a pattern of "affirmative recruitment." For example, the Senate Judiciary Committee should begin evaluating federal judicial nominations with reference to specific goals for increasing non-white nominees. The Committee should decline to consider any nominee until a sufficient number of nominations--such as twenty or thirty--were made so as to enable the Committee to consider not only the individual qualifications of each, but the impact of these twenty or thirty nominations as a totality on the composition of the federal bench.

Thus despite efforts by Guinier and some of her supporters to repackage her into a more "mainstream" candidate, her foes accurately perceived her racial politics as those of the Democratic left wing--precisely the racial politics that New Democrats perceive as an impediment to the party's reconstruction. Acknowledging this does not mean siding with her opponents; it simply means clearing the way for a debate over the substance of contending approaches to racial politics.


THE VOLATILE MATTER OF VOTING RIGHTS

Voting rights is the area of racial politics about which Guinier has written most extensively. Its volatility particularly afflicts the Democratic Party, with its far-flung racial, ethnic, and ideological coalition. During the Reagan-Bush years, voting rights was one of the few areas in which the civil rights establishment largely succeeded in shaping the law to its liking. In 1982, for example, aided by the effort of Guinier, who then worked for the NAACP Legal Defense Fund, the civil rights establishment prevailed over Ronald Reagan's opposition and amended the Voting Rights Act, authorizing courts to prohibit not only electoral schemes that intentionally disadvantage racial minorities but schemes that have the effect of disadvantaging them. Subsequently, the federal judiciary interpreted the amended act generously, offering to racial minority plaintiffs an environment more supportive than in any other area of civil rights law.

Until recently, the leading constitutional decision on the permissible use of race in legislative districting was United Jewish Organizations (UJO) v. Carey, decided in 1976, a case whose very title is revealing. In UJO, organizations representing a Hasidic community sued the Democratic governor of New York in order to block legislation that purposefully created a jurisdiction with a voting majority of blacks, incidentally reducing the voting strength of a Jewish enclave that was split to make way for the new, predominantly black district. The plaintiffs argued, among other things, that the state's action amounted to creating an unconstitutional "racial quota" in electoral results. Only Chief Justice Warren Burger agreed with them. Dissenting, he denounced the race-conscious redistricting in language that sounds as if it were lifted from debates surrounding the Guinier nomination and other recent controversies:

The use of a mathematical formula tends to sustain the existence of ghettos by promoting the notion that political clout is to be gained or maintained by marshalling particular racial, ethnic, or religious groups in enclaves. . . . I cannot square the mechanical racial gerrymandering in this case with the mandate of the Constitution.

The majority of the justices, however, upheld the state's action, solidifying one of the main bases on which black electoral representation at every level has depended for growth.

The political consequence of the race-conscious redistricting at issue in UJO was a double-edged sword. On the one hand, the purposeful creation of majority-black districts has significantly enhanced black political power. In 1992, for instance, 13 of the 16 blacks elected to Congress (nearly doubling the ranks of the CBC) represent districts that were created to contain a majority of black voters. But this same strategy has produced a backlash against affirmative race-conscious measures. The hostility to Guinier was itself a vivid example of that backlash.

Three weeks after Clinton's withdrawal of Guinier, the Supreme Court, in Shaw v. Reno, sidestepped UJO, ruling that under some circumstances whites may properly claim that their "constitutional right to participate in a `color-blind' electoral process" is violated when state governments purposefully create majority-black congressional districts. Although the precise contours of the Court's ruling are murky, its rhetoric, excoriating so-called reverse-discrimination, spells trouble ahead for race-conscious electoral measures. "It is unsettling, " stated Justice Sandra Day O'Connor for a 5-4 majority, "how closely [the plan at issue] resembles the most egregious racial gerrymanders of the past. . . . A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid."

In this context of judicial reconsideration and political backlash, Guinier's receptivity to other strategies to achieve electoral fairness was ahead of the curve.


WHAT GUINIER BELIEVES

According to Guinier, blacks' struggle for racial equality in electoral politics has entered a new phase. Her analysis of the initial two phases is uncontroversial. The first involved securing the right simply to cast a ballot free from openly racist exclusionary laws, economic blackmail, or naked violence. This phase came to an end relatively soon after the passage of the Voting Rights Act of 1965. The second phase involved securing the right of blacks to participate in politics free of covert efforts to dilute the effectiveness of their votes. This phase is not yet wholly past; in some locales, white politicians still deliberately draw district lines to fracture or dilute the voting strength of racial minorities. What goes on today, however, is nothing like the wholesale efforts to negate black power in the late 1960s and early 1970s.

What is controversial about Guinier's writings stems from her discussion of what she views as a third phase of the struggle for racial justice in electoral politics--a phase in which, according to her, racial minorities should demand not simply formal access to electoral opportunities but a fair share of actual power. In an article significantly titled "The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success," she concludes that "for those at the bottom, a system that gives everyone an equal chance of having their political preferences [by which she means political representatives] physically represented is inadequate. A fair system of political representation would ensure that disadvantaged and stigmatized minority groups also provide mechanisms to have a fair chance to have their policy preferences satisfied."

Guinier's conclusion rests upon two arguments. First, merely electing a certain number of blacks to a legislature or some other decision making body is insufficient to satisfy her conception of multi-racial fairness. Even after they gain access to a legislature, blacks can be rendered mere tokens if they are isolated by a white majority of lawmakers who refuse to bargain with them and thus prevent them from delivering substantive benefits to their constituents. Guinier contends that this "resegregation within the walls of a formally integrated legislature" has happened often. Thus instead of hailing the enlarged number of black elected officials since 1965 as a sign of substantial progress, Guinier warns that this development represents "the triumph of tokenism."

From this flows her second argument: fairness requires that the legal system protect the representatives of black communities from having their votes diluted in legislatures, just as the 1982 amendments to the Voting Rights Act protect black voters from having their votes diluted in elections.

This demand, according to Guinier, is insufficiently addressed by most existing political arrangements, including those that have been established over the past decade under pressure from Congress, courts, and the civil rights division of the Justice Department. To meet statutory requirements, many jurisdictions have created majority-black, single-member districts, the remedy of choice of the civil rights establishment. Instead of leaving black communities submerged, their voting strength diluted, in districts dominated by white majorities that constantly negate the electoral choices of blacks (to the extent of discouraging those preferred by blacks from even running for office), race-conscious districting aims to subdivide jurisdictions in such a way as to allow minority voters to express themselves in the selection of a representative primarily accountable to them.

Guinier criticizes race-conscious, single-member districting on several grounds. First, she notes that it offers an incentive to residential racial separatism and, for minorities, penalizes dispersion, which seems especially to hurt Hispanics. As Guinier puts it in one of her most recent articles, "Single member districts improve the prospects of minority representation only to the extent that there is substantial residential segregation at the appropriate geographic scale. Thus, for Latinos who live in barrios that are dispersed throughout a jurisdiction, districting does not capture either their real or potential power."

Second, Guinier observes that race-conscious, single-member districting cannot adequately address the multiracial character of many jurisdictions. "In a jurisdiction with a complicated racial, ethnic, and linguistic mix," she warns, "the redistricting struggle can become a source of conflict between blacks and other minority groups."

Third, Guinier objects that redistricting is done by self-interested political professionals who frequently put the preservation of their own power above all other competing concerns. Guinier makes clear that her distrust is race-neutral, focusing on all political insiders whatever their hue. She argues strongly that single-member, winner-take-all districting corrupts not only the political culture of white communities but also the political culture of racial minority communities. She contends that, as conventionally implemented today, race-conscious districting inhibits political competition in minority communities, making them all too safe for the perpetuation of black political elites who insulate themselves from accountability to their nominal constituents.

Fourth, Guinier objects to the way in which single-member districting, even when race-conscious, buttresses the hegemony of the two-party system, marginalizes third party challengers, and encourages a relentlessly centrist, lowest common denominator style of politics that is hostile to any ideas "outside the mainstream."

Fifth, Guinier complains that race-conscious districting impedes the construction of trans-racial political coalitions. According to her, the process of darkening districts probably separates from the newly created, majority-black jurisdictions some whites who would vote along the same lines as the black majority, relegating these whites to more conservative jurisdictions. Moreover, insofar as the process of darkening some districts entails whitening others, Guinier maintains that this reform will inevitably make some white legislators less dependent on and less accountable to black voters.

Guinier is mindful of benefits race-conscious districting creates. She recognizes, for instance, that while the creation of "safe" black districts may encourage complacency among incumbents, they at least "enable blacks to get elected and then reelected, leading to positions of seniority and status" in the legislative body. And she certainly prefers race-conscious, single-member districting, with all its drawbacks, to the circumstance that prompted its birth as a remedy: governing bodies devoid of people who represent the expressed preferences of communities of black voters. Guinier argues, though, that we are not limited to these alternatives and recommends pressing on to potentially more open, integrated, and participatory forms of democratic governance.

Two points need to be made here about Guinier's critique. First and foremost, it belies certain damaging claims made against her nomination. Opponents contended that her writings showed her to be a racial separatist, hostile to integration, and rigidly attached to racial districting. This portrayal is false. The entire thrust of Guinier's writing has been to find ways that more fully integrate racial minorities into all of the various organs of American self-government. Second, contrary to the claims of some, Guinier is admirably open-minded, possessing a demonstrable willingness and ability to revise her own deeply held beliefs in the face of countervailing evidence and argument. This is best illustrated by the change in her analysis of race-conscious districting. An omnivorous reader, Guinier has the capacity to recognize good ideas even when they come from people with whom she intensely disagrees.


MINORITY-SENSITIVE REPRESENTATION

But what about Guinier's alternatives to race-conscious districting? Do her theories of electoral representation warrant the condemnation she encountered?

Guinier argues that election procedures should be made more sensitive to the preferences of minority voters--not just racial minorities but minorities of all sorts. She contends that winner-take-all systems give too much power to the prevailing majority, condemning to virtual irrelevance the votes of all others. She does not object to the majority wielding the most power. She objects to the majority wielding a degree of power disproportionate to its share of the electorate, particularly insofar as this accentuates the dominance of racial minorities by the white American majority.

To prevent the monopolization of power by a mere majority, Guinier recommends the sort of proportional or semi-proportional electoral systems used in most democracies around the world. Here it must be said that Guinier (like most social critics) is considerably more comprehensive, detailed, and assured when discussing what she rejects than what she wants. Her writings do not yet present a thorough road map of alternatives. They do offer a clear indication, however, of points of departure.

Guinier argues in favor of two broad reforms. One involves changes in the rules governing the selection of representatives; the second involves changes in the rules governing decision making by representatives. With respect to the first, Guinier recommends the creation of multi-member districts where representatives are chosen by cumulative voting. Under such an arrangement, people can cast multiple votes up to the number of open seats and express the intensity of their preferences by aggregating their votes. A voter could, for instance, cast all of her votes for a single candidate. Guinier champions cumulative voting because, like race-conscious districting, it provides a way of making visible the political preferences of racial minorities, protecting them, to some degree, from having their collective choices diluted by surrounding white majorities.

Consider one of Guinier's hypotheticals: a five-member, at-large city council in a jurisdiction in which blacks constitute 20 percent of the population. Under a cumulative voting arrangement, the black community can, if its members vote strategically, always elect at least one representative wholly accountable to that community of voters. This matches what race-conscious districting accomplishes but avoids the drawbacks mentioned above. For one thing, cumulative voting would counteract current incentives toward racially separated residential patterns, removing the anxiety felt by some minority politicians who fear that residential desegregation will inevitably lessen blacks' potential political power.

The second set of reforms Guinier suggests are changes in the rules governing decision making by representatives. She proposes "supermajoritarian decision-making rules" that would "give minority groups an effective veto, thus forcing the majority to bargain with them and include them in any 'winning' coalition." For instance, she argues for rules requiring enough votes that at least some representatives of minority groups would have to assent before a given policy could be implemented. In contexts in which a majority of white representatives consistently refrains from bargaining with the representatives of racial minority groups, Guinier proposes imposing supermajority rules that would compel the white representatives to bargain.

On balance, Guinier's writing constitutes an impressive intellectual achievement that should have strengthened, rather than destroyed, the case for confirming her as head of the Justice Department's civil rights division. Still, there are weaknesses in her work that should be mentioned. Two are particularly noteworthy.

First, Guinier's discussion of remedies needs considerable refinement. In suggesting the imposition of supermajority voting rules upon legislatures in which minorities are isolated, she only vaguely defines improper isolation. Guinier writes that the supermajority requirement would be triggered for votes "on issues of importance to the majority" or "critical minority issues." However, she neither offers reasons for the limitations she notes nor guidance for distinguishing "critical minority issues" from those that will be critical to all voters. Given the interdependencies at work within our society, such distinctions--white folks' business and colored folks' business--are dubious. Guinier also has failed to distinguish adequately the strengths and weaknesses of alternatives to existing voting and legislative ground rules. Given this, it seems premature for Guinier to recommend cumulative voting over other ideas that may deliver more of the benefits she seeks for historically oppressed minorities.

A second major weakness in Guinier's work is the tendency, shared by many on the left, to use indiscriminately "racism" as an all-purpose condemnation of policies with which she disagrees and to minimize the substantial reforms that have transformed race relations over the past half-century. Guinier helped to feed the public relations attack on her with an op-ed piece that ran in the Philadelphia Inquirer in February 1992. In it she castigated a recent Supreme Court decision, Pressley v. Etowah County. Likening to a lynching the decision in which a 5-4 majority of the justices resurrected "the rhetoric and the logic of white supremacy," she suggested that racism explains the Court's holding that the Voting Rights Act did not reach certain suspicious actions taken by white commissioners in a Georgia county soon after the election of a black commissioner. The Bush Justice Department argued that the act should have been interpreted to reach the defendant's conduct. A different result could have been--should have been--reached.

But an erroneous decision that has the consequence of hurting the interests of racial minorities is not always attributable to racially selective indifference or malevolence. There is nothing wrong with stigmatizing a decision as racist as long as one can justify making such a serious charge. In her op-ed piece, however, Guinier offered no such justification. Instead, evading the problems posed by the case, she argued as if it were self-evident what the correct decision would have been and as if only a moral flaw could divert anyone from her preferred result. Pressley, however, raised a difficult issue of statutory construction, a fact that even some of the strongest backers of the act (and of Lani Guinier) concede. By lodging the accusation of racism somewhat recklessly, Guinier pinches the nerves of those who, with some justice, resent overplaying the "racism card."

This tendency surfaces in her law review articles as well. Allegations of racism or prejudice pop up whenever she describes a situation in which a majority of black voters (or legislators) prefers a given result while a majority of white voters (or legislators) prefers another. She gives too little consideration to variables other than prejudice to explain differences in voting patterns that, while racially correlated, may be animated to a significant degree by other causes, including socioeconomic and ideological differences.

Looming behind patterns of what appear to be racially polarized voting are what Samuel Isaacharoff aptly describes as "fundamental differences in the socioeconomic positions of whites and black Americans." According to him, only 2 of every 100 white households would be adversely affected by a cut in welfare payments, compared with 15 of every 100 black households. At the more affluent end of the socioeconomic spectrum, 53.5 percent of all blacks in professional or managerial positions are employed by government. Only 27.5 percent of whites in similar positions serve the public sector. Hence, as Isaacharoff asks, "Is it any wonder that blacks and whites have hugely different views on the critical political issue of government responsibility to guarantee employment and/or decent standards of living?"

Racially correlated divergences on voting patterns may stem from different causes, thereby justifying different responses. Is it the case, as some contend, that whites would be willing to vote for black candidates if they were more conservative than those who currently dominate the CBC? Or is it that whites shun black candidates regardless of the latter's politics ( a scenario that would strongly bolster the claim that current electoral outcomes are illegitimate)? The persuasiveness of Guinier's account, which largely favors the second hypothesis, will always suffer to the extent that she negates by assumption, as opposed to empirical testing, plausible explanations that compete with her own.

While there are grounds for criticizing Guinier's writings, those articulated by many commentators after her nomination revealed the appallingly low intellectual standards in even the upper reaches of the political and journalistic establishments. The central slogan of the attack on her writings--one that was pathetically embraced in the end by President Clinton--was that they are "antidemocratic." This was, and is, absurd--unless one limits the definition of "democracy" to the particular set of rules currently dominant in the United States.

Far from abandoning democracy, Guinier maintains that, in all too many circumstances, too few people have too little say about the rules and rulers that govern them. An adherent to a consensus (as opposed to a simple majoritarian) model of democracy, a self-described "democratic idealist" who unashamedly invokes the 1960s rhetoric of "participatory democracy," a synthesizer of John Stuart Mill, Arend Lijphart, and Fannie Lou Hamer, Guinier favors rules of self-governance that she believes will encourage more participation by a wider array of people.

It became increasingly evident during the controversy over Guinier's nomination that many who felt themselves competent to evaluate her work publicly were not only ignorant of its complexity but ignorant, too, of various strands of democratic thought and practice within the United States and around the world. Some condemned Guinier as if they had never read James Madison and The Federalist Papers or considered the obstacles to majoritarianism built into the constitutional structure--including the Bill of Rights, bicameral legislatures, and quotas dictating that all states must be represented by two senators regardless of difference in populations--or reflected in customs--like the Senate filibuster--by which minorities compel majorities to take their interests into account.

Some of Guinier's opponents spoke as if they were unaware that some of the very devices that she sought to justify have already been implemented to good effect with the backing of the Reagan and Bush Justice Departments in certain locales where a conjunction of racially polarized voting and ostensibly race-neutral electoral rules have, for years, excluded racial minorities from any decent share of political power. Some of Guinier's critics, moreover, spoke as if there were only one truly democratic way. Pressed to justify withdrawing her nomination, President Clinton remarked that in her writings she had seemed to advocate proportional representation, which he termed "antidemocratic and difficult to defend." But, as an unsigned editorial in the New Yorker caustically noted, Clinton's view "will come as news to the good people of Germany, Spain, the Netherlands and Sweden. . . . Indeed, most of the electorates of continental Europe, including those of the liberated East, elect their legislatures under some form of proportional representation." Moreover, as the New Yorker further editorialized:

P.R., as its advocates call it, is the very opposite of undemocratic. It not only facilitates minority representation but also virtually guarantees majority rule (the majority most often being a legislative coalition). By contrast, single-member-district, winner-take-all systems . . . often produce minority governments. . . . Bill Clinton, himself, it should be remembered, owes his job to forty-three percent of the voters.

Senate hearings on Guinier's nomination might have facilitated a widely watched, widely debated, public seminar about contending conceptions of democracy, the strengths and weaknesses of various electoral and legislative schemes in the United States and around the world, the means and ends of the Voting Rights Act, and other important issues about which American citizens and their representatives are deplorably ill-informed.


LEFT BEHIND

The struggle over Guinier's nomination demonstrated certain strengths of the Right and certain weaknesses of the Left. Tactically, her allies were slow in responding to the attacks mounted initially by the Wall Street Journal. I was one of those unresponsive allies. I took too lightly the Journal's flailing. I did not think that its criticisms would be so influential with politicians and media bureaucrats beyond right-wing circles. I thought, moreover, that the White House would orchestrate appropriate rebuttals on behalf of its nominee--though, in fact, the White House kept her under enforced wraps while Clinton dithered. Only at the eleventh hour did Guinier's allies stage dramatic, public shows of support. By then it was too late.

There is a more important and more subtle way in which the left wing of American politics helped inadvertently to ease the way for Guinier's defeat. Intellectuals on the left supplied a real basis to fuel the anxieties wrongly loosed upon Guinier by people who should have given her the benefit of the doubt. All too many intellectuals on the left have loudly embraced, or quietly accepted, such notions as the claim that nothing substantial has changed in race relations since slavery, that the very idea of merit is a racist myth, that it is impossible for blacks to be racist, that it is better for orphaned black children to be raised in institutions than for them to be adopted by white adults, that only indifference to racial justice can explain refusals to censor speech hurtful to members of racial minority groups, that only racism can explain opposition to affirmative action.

These views, the people who hold them, the rhetoric with which they are articulated, and the judgments to which they give rise were very much in the minds of at least some of those who opposed Guinier. They associated these views with the Left, associated her with that community, and, frightened, acted accordingly. This observation neither justifies nor excuses caricatures of Guinier. But the affair should prompt progressives to ask how such caricatures could be believable to a broad range of people. And it highlights the political costs progressives incur from loose rhetoric and bad judgments.

Effectively pursuing a progressive racial politics today requires the skill of a tightrope walker. A weakened Left insists in strident rhetoric that the legal and socioeconomic status of blacks has scarcely improved over the past half-century. At the same time, precisely because of the real progress that has been made, white Americans tend to deny the extent to which America remains a pigmentocracy. This denial is prevalent among New Democrats, who have dramatically demoted the race question on their agenda.

To counterbalance this evasion, some progressives emphasize, indeed exaggerate, the extent to which the United States avoids addressing the wound of racial oppression. But this approach lacks credibility in the face of obvious gains made by minorities. Moreover, as progressives, we should not minimize these successes, for progressives helped bring them about, changing America for the better.

Among the multiple lessons of the Guinier affair are that New Democrats need reminding about the unfinished agenda of racial justice; that progressive Democrats need to remember that legislative and electoral progress requires allies and that allies require civility; and that intellectuals who anticipate appointment to high office should consider that their "intellectual musings," in Senator Biden's phrase, are likely to be taken literally.

In the end, it is hard to resist the conclusion that Guinier was unjustly demonized. She is a committed, decent, and eloquent progressive, a first-rate intellectual, an experienced litigator, and a genuine Democrat. Clinton's abandonment of her remains a blot on his presidency. The ferocious opposition of her enemies and his eventual capitulation deprived the nation of an important debate and a talent that is hard to come by.

Perhaps Clinton's desertion of Guinier will soon be eclipsed by other decisions that are more palatable to the left wing of the Democratic camp. If not, the Left will have to reconsider a subject it briefly broached during the fight over Guinier's nomination: how should progressives discipline an electorally weak president with some liberal tendencies when the alternatives are conservative Republican aspirants for the White House? At some point, progressives must be willing to confront a Democratic president, regardless of the specter posed by the Republicans. It is a sign of Lani Guinier's strength and Bill Clinton's weakness that his abandonment of her brought this question into such sharp relief this past summer. One can hope that it will recede as a question that progressives must seriously ponder.

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