Lani Guinier Reconsidered
By John H. Hinderaker and Scott W. Johnson
Center of the American Experiment Minneapolis, Minnesota August 1993
Foreward
This paper about the strange legal world of Lani Guinier, by Minneapolis lawyers John H. Hinderaker and Scott W. Johnson, may be unusually brief, but it’s unusually on-target.
Yes, a fair amount was written earlier this summer about the degree to which Ms. Guinier’s legal scholarship (and presumably her convictions) were well left of the mainstream she claimed to swim in. David Broder, for instance, did a very good column about how she indicted herself, with her own word processor, when given an opportunity by the Washington Post to explain just what she believed. But columns and analyses like Mr. Broder’s notwithstanding, I don’t recall anything at the time which examined Ms. Guinier’s paper trail with nearly the detail that Messrs. Hinderaker and Johnson do in this short essay, “Lani Guinier Reconsidered.”
Fact is, as the two show, Ms. Guinier reflects and leads a school of legal and social thought that’s not just deviant; it’s divisive, counterproductive, and racist in real ways. It’s also profoundly incongruent, not just with our ideals as a nation, but with our practices. And no, I do not overstate any of this in the smallest way.
The basics and implications of Ms. Guinier’s radicalism — in which America’s prejudices are presumed to be all-encompassing and fixed, and in which racially defined remedies are presumed always to be required — are examined far too rarely in public settings. Which is the main reason why it has made the insidious progress it has. I thank Messrs. Hinderaker and Johnson for their essential vetting and airing, as in their concluding paragraph:
In the elite circles in which Lani Guinier moves, it is not controversial to allege that whites are irredeemably and universally racist; that all blacks think alike unless they are victimized by “false consciousness;” that the races, having nothing in common, exist in a state of permanent conflict; and that democracy is therefore a thing of no value. So it probably was a shock to her when Bill Clinton — a soulmate, perhaps, under the skin — was forced to bow to the belief, common among humbler Americans, that democracy is worth preserving; that the races are more alike than different; that words have meaning, and that writers — even professors — should be held responsible for what they say.
John Hinderaker received his law degree from Harvard University and his undergraduate degree from Dartmouth College. Scott Johnson did his law work at the University of Minnesota and also attended Dartmouth as a younger man. They both describe themselves as former liberals “who learned a lot from Ronald Reagan.” They both practice in Downtown Minneapolis, and write frequently as a team for local publications, including the Star Tribune, St. Paul Pioneer Press, and CityBusiness. My colleagues and I are very pleased that they’ve now written for American Experiment.
Center members receive free copies of all American Experiment publications, including this one. Additional copies of “Lani Guinier Reconsidered” are $3 for members and $4 for nonmembers. Bulk discounts are available for schools, civic groups and other organizations (including law schools and law firms). Please note our phone and address on the previous page for membership and other information, including a list of other Center publications and audio tapes.
I welcome your comments.
Mitchell B. Pearlstein
President
August 1996
I.
The swift rise and precipitous fall of Lani Guinier have much to tell us about contemporary liberalism — the liberalism that dares not speak its name. Her nomination as Assistant Attorney General for Civil Rights collapsed, in the end, because she violated the taboos that govern the presentation of liberalism’s public face. She said things that other liberals may believe, but do not put in writing.
The controversy surrounding Guinier’s nomination generated surprisingly little detailed consideration of her actual views on issues of race. The alacrity with which liberal commentators and the civil rights establishment sprang to her defense suggests, however, that her opinions are by no means out of step with current “progressive” opinion. This was certainly the attitude conveyed by Guinier, who angrily denied that her views are radical and proudly proclaimed herself a member of the “mainstream.” Her supporters on the left agreed. Columnist Anthony Lewis, for example, wrote that Guinier was the victim of “the most effective smear campaign seen in Washington since Joe McCarthy’s day.” He accused conservative critics of the law review articles that led to Guinier’s demise of “gross, indeed ludicrous misrepresentation” of her views.
When Guinier and her defenders issued these bold pronouncements, they must have felt secure in the knowledge that few people had read, or would read, her articles. For, as anyone who takes the trouble to read Guinier’s writings will soon see, her views are not only radical, but are suffused with racial extremism.
II.
However, the first thing one observes when reading her articles is not the outlandish nature of her opinions. It is, rather, the quality of her writing. Guinier writes so badly that her articles are nearly incomprehensible. Her prose reads like a parody of bad scholarship: It is turgid to the point of impenetrability, littered with hundreds of uninformative footnotes, and sprinkled with neo-Marxist jargon (“false consciousness,” “hegemony,” “subjugated minorities”). Worst of all, her writing consists entirely of airy constructs that are unconnected to any empirical foundation, or even to any sense of reality.
The persistent reader, having surmounted the obstacle of Guinier’s prose, finds a sharp divide separating Guinier’s earlier and later published writings. In her career as a “civil rights” litigator, and in her first published article, Keeping the Faith: Black Voters in the Post-Reagan Era,1 which appeared in the Harvard Civil Rights-Civil Liberties Law Review in 1989, Guinier was a straightforward advocate of electoral quotas. Her single-minded theme was that white majorities in southern states conspired to prevent the election of black officials through such devices as at-large elections.
Her remedy, under the Voting Rights Act, was to use the federal judiciary to compel the rewriting of election laws and gerrymandering of districts to guarantee the election of black officials in numbers corresponding to the black percentage in the relevant population base. Thus, in 1989 Guinier wrote: “The franchise gives status to the individual voter but derives its vitality from its exercise by a ‘politically cohesive’ group of citizens who elect representatives to promote consideration of group interests in public policy. . . . For the minority, the meaningful right to vote must include the correlative opportunity to elect a representative of that group’s choice. . . . In a racially polarized situation, this means creating districts or electoral opportunities in which such a representative can be elected.”2
By 1991, however, Guinier’s views had changed significantly. She had concluded that racia
l quotas are not enough. Why? Because, having participated in the gerrymandering of electoral districts all over the South, Guinier came to the stunning realization that blacks are a minority. Accordingly, a quota system could not assure that the views of black officials would always prevail — the risk remained that they might be outvoted by the majority. Finding this situation intolerable, Guinier proclaimed in November 1991: “I conclude that the second-generation remedial strategy [creation of black districts to ensure election of a quota of black representatives] is ill-advised and that a new remedial focus is needed.”3 Thus began Guinier’s elaboration of the theory that ultimately unraveled her Justice Department candidacy.
Guinier expressed her new views in two 1991 articles published in the Michigan and Virginia law reviews, titled respectively, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success,4 and No Two Seats: The Elusive Quest for Political Equality.5 Her current theories proceed from a bedrock conviction that blacks and whites live in “different worlds.”6 For Guinier, whites are a “homogeneous majority.”7 Blacks are likewise undifferentiated: “The assumption that blacks, wherever they reside, tend to be politically cohesive is supported both anecdotally and empirically. . . . Even disagreements among blacks pale by comparison with the differences in political interest and philosophy between blacks and whites.”8 Thus, blacks and whites, living in different worlds and with no interests in common, are locked in permanent warfare in which blacks, being the minority, are “permanent loser[s]”9 and racism “control[s] all outcomes.”10
The political consensus that Guinier discerns among blacks is explicitly left-wing: “Empirical evidence of racial bloc voting supports the assumption that blacks, to a great extent, are ideologically homogeneous on many issues. Black voting patterns reflect two decades of consensus on the need for greater civil rights enforcement, social welfare expenditures, and government intervention in domestic affairs.”11 Moreover, the civil rights movement, as Guinier sees it, seeks “to expand the liberal vision toward a redistributive agenda premised on equality of condition, and not just freedom from overt discrimination.”12
This supposed black consensus is discerned and implemented by elected black leaders, who “will discharge their duties differently than [sic] white officials. Black elected officials will intuitively understand the positions favored by their black constituents.”13 (It is interesting to contemplate what would happen to a white Justice Department nominee who wrote those sentences, substituting the word “white” for “black”.)
It is not enough, however, for voters merely to elect black officeholders. After all, voters, left to their own devices, have sometimes gone so far as to elect moderate or even conservative blacks to office. Thus, it is essential to Guinier that federal law guarantee the election of “authentic” blacks. Again, Guinier resorts to a mode of analysis that can only be described as racist: “[A]uthenticity reflects the importance of race in defining the character of black political participation. . . . [A]uthenticity subsumes two separate concepts, the political and the cultural. Black representatives are authentic because they are elected by blacks and because they are descriptively similar to their constituents. In other words, they are politically, psychologically, and culturally black.”14
Black leaders who actually persuade whites to vote for them are inherently suspect: “Authentic leaders are those elected by black voters. . . . These facts distinguish the authentic representatives from those officials who are handpicked by the ‘establishment’ or who must appeal to white voters in order to get elected. . . . [A]uthenticity refers to a cultural and psychological view of group solidarity.”15
Above all, authentic black leaders are liberals: “[A]uthentic community based leaders [are] the vanguard for a new social justice agenda.”16
III.
The problem, as Guinier sees it, is that the Voting Rights Act has succeeded in guaranteeing the election of black candidates, but it does not guarantee that the views of these black representatives will prevail in the legislatures, school boards, city councils and county commissions in which they serve. It is always possible that they may be outvoted. In fact, Guinier postulates a world in which blacks are never part of the majority. She argues that because of racism, black representatives are consistently excluded from any meaningful role in government: “Simply put, racism excludes minorities from ever becoming part of the governing coalition, meaning that the white majority will be permanent. Because it excludes minorities from joining the majority, racism also renders the majority homogeneous, comprised of white voters only.”17
This theory, of course, would come as a surprise to the Democratic Party, which relied on black voters to supply President Clinton’s margin of victory. Moreover, it would be easy to prove statistically that on average, black Congressmen vote in the majority more often than white Congressmen. This follows from the fact that the overwhelming majority of black Congressmen are Democrats, and Democrats are in the majority in both houses. The same analysis would be true for many state legislatures. But Guinier pays no attention to such obvious political realities. She is, to put it mildly, not much of an empiricist.
Faced with the intractable fact that blacks are, after all, a minority, Guinier reacts — with a logical consistency that borders on monomania — by attacking democracy and majority rule. In a country like America, where we have “subjugated minorities,”18 Guinier declares majority rule to be “illegitimate.”19 She is careful to say that she does not necessarily oppose majority rule in all places and in all circumstances: “For the sake of argument, I am prepared for the moment to assume that, under certain conditions, majority rule may be possible.”20 Only not in America. Here, “we ought to question the inherent legitimacy of winner-take-all majority rule.”21
Thus, Guinier proposes to go beyond quotas, to a system that “is not satisfied by proportionate election of members of a protected class.”22 Instead, she advocates what she calls “proportionate interest representation.”23 Under this theory, each statutorily protected minority group “has a right to have its interests satisfied a fair proportion of the time.”24 Or, stated another way, “disadvantaged and stigmatized minority groups [would] also have a fair chance to have their policy preferences satisfied.”25 The anti-democratic implications of Guinier’s proposal are astonishing: Each ethnic group has a right to have “its” views adopted by legislatures and other deliberative bodies a “fair proportion” of the time, even though the position in question is rejected by the majority.
In order to implement such a scheme, Guinier, like all liberals with anti-democratic agendas, turns to the federal courts. She argues that the Voting Rights Act should be interpreted to empower the federal courts to review the substantive decisions of every legislature, every school board, every city council, and every other elected body in every jurisdiction subject to the Act. The courts would determine whether black “interests,” as defined by their “authentic” representatives, had prevailed in each such body a “fair proportion” of the time. (Guinier never addresses the question of what constitutes a “fair proportion.”) If not, racism would be conclusively presumed. The fact that the majority has an honest disagreement with the minority — for example, because the majority does not share a commitment to Guinier’s “redistributive agenda” — would be no defense.
If the court finds that “authentic” blacks have not had their “policy preferences satisfied” a “fair proportion” of the time, Guinier advocates a panoply of remedies. The federal court could dictate that the state, county or municipality scrap its traditional voting system. A variety of other systems could be substituted in its place; Guinier’s favored remedy appears to be a version of the “at large” system which she denounced as recently as 1989, modified so that each voter would cast more than one vote. Despite Guinier’s long and largely incoherent explanations of this system, it is impossible to see how it would transform a black minority into a majority.
More effective, albeit more intrusive, is Guinier’s proposal for a minority veto: “Where majority representatives refuse to bargain with representatives of the minority, simple majority vote rules would be replaced. A ‘minority veto’ for legislation of vital importance to minority interests would respond to evidence of ‘gross deliberative gerrymanders.’ Alternatively, depending on the proof of disproportionate majority power, plaintiffs might seek minority assent through other supermajority arrangements, concurrent legislative majorities, consociational arrangements, or rotation in office.”26 Or, stated more bluntly: “If the minority also had a mutual veto, blacks would enjoy a valuable, strategic, bargaining position, which assures that the majority would be [un]able to get anything done without their assent.”27 Although Guinier acknowledges that her reasoning applies equally well to a number of minorities, she is interested only in blacks, and never indicates how many minorities she thinks should enjoy veto powers.
A court, in determining whether the black minority has gotten its way a fair share of the time, would examine only the votes of the “authentic” — i.e., left-wing — representatives of that group. If an analysis shows that a black legislator has been “disabled” from voting the liberal line by a desire to appeal to white voters, a violation of the Voting Rights Act would be found. Thus, Guinier’s proposals would use the Voting Rights Act to institutionalize liberalism by judicial fiat. The federal courts would be called upon to review the deliberations of every democratically elected body in the South to ensure that, a “fair proportion” of the time, they are following a “redistributive agenda” — regardless of the wishes of the majority of the voters who elected them.
IV.
Guinier’s ideas are described in the press as “controversial.” The truth, however, is that they are not controversial at all. In order to be controversial, an idea must have at least a veneer of plausibility. Guinier’s ideas are so extreme and so ill-considered that no rational person could advocate them. (Guinier herself would surely not have done so had she testified before the Judiciary Committee, any more than she has acknowledged the real content of her articles in her public statements.)
In the wake of the Guinier fiasco, attention has focused on President Clinton’s claim that he was unaware of the content of Guinier’s scholarship until he read her articles for the first time, after nominating her to head the Civil Rights Division. The President said that he had expected Guinier to be judged on the basis of her record as a civil rights litigator rather than on her academic work.
It is certainly plausible that President Clinton did not read Guinier’s articles until after controversy developed over her nomination; no one would read them for pleasure. But it is hard to imagine that Clinton, supposedly a personal friend of Guinier, was unaware, in general, of the left-wing, race-obsessed views expressed in her writings. Moreover, one of the most important duties of the Assistant Attorney General for Civil Rights is to oversee enforcement of the Voting Rights Act. There is no excuse for appointing a nominee to that position without investigating her views in this critical area.
In one sense, it is unfortunate that Clinton’s withdrawal of Guinier’s nomination prevented her from making a public appearance before the Judiciary Committee, although not for the reasons urged by her defenders. Her testimony before the Committee might have focused attention on the aspect of her career with which Clinton claimed to be familiar — her record as a civil rights litigator. As is pointed out above, the epithet “quota queen” is too mild to describe Guinier’s most recently published theories. But as a characterization of her courtroom career, it is exactly on target.
In case after case, representing plaintiffs suing under the Voting Rights Act, often on behalf of the NAACP Legal Defense Fund, Guinier has urged that the Act be construed to require electoral quotas for racial groups. In accepting such arguments, the federal courts have repeatedly required that longstanding electoral procedures which are nondiscriminatory on their face — at-large elections, majority vote runoff requirements — be scrapped. In their place, the courts have fashioned remedies, including creation of electoral districts that substantially exclude whites for the purpose of assuring the election of black candidates, that arguably contribute to racial polarization. Only in June 1993, in the North Carolina case Shaw v. Reno,28 did the United States Supreme Court suggest that the courts had gone too far, signaling that the tide of racial gerrymandering may possibly have crested.
Most Americans, particularly in the North, are entirely unaware of the effects of the Voting Rights Act as it has been interpreted in recent years. The wisdom of the Act, in its current form, has never been widely debated. Guinier’s confirmation process might have shed much-needed light on an aspect of American political life that liberals prefer to keep in the dark. Indeed, it is likely that many Americans’ instinctive and well-intentioned support for “civil rights” legislation and enforcement would evaporate if they knew what the current generation of civil rights leaders, exemplified by Lani Guinier, is up to.
As for Guinier herself, the publicity surrounding her nomination will no doubt be a boon to her career. She is viewed as a martyr by the left, and the reverence of liberals for their martyrs long outlives the public’s memory of what they actually said and did. Guinier can expect to be treated with respect by the press, and her “ordeal” will increase her stature in the academic world. It would not be surprising if, someday, she embarks on a joint speaking tour with Anita Hill.
And yet it is possible to feel a kind of sympathy for Guinier. Her sense of being wronged — her protestation that she is part of the mainstream — was probably genuine. After all, no matter how absurd and pernicious her academic work may be, she has been well rewarded for it. She is a well-paid, tenured professor at a prestigious law school, the University of Pennsylvania. She hobnobs with the rich and famous. Her work is published in respected journals which function as organs of elite opinion. Once published, her articles have been reviewed and commented upon with favor.
In the elite circles in which Lani Guinier moves, it is not controversial to allege that whites are irredeemably and universally racist; that all blacks think alike unless they are victimized by “false consciousness;” that the races, having nothing in common, exist in a state of permanent conflict; and that democracy is therefore a thing of no value. So it probably was a shock to her when Bill Clinton — a soulmate, perhaps, under the skin — was forced to bow to the belief, common among humbler Americans, that democracy is worth preserving; that the races are more alike than different; that words have meaning, and that writers — even professors — should be held responsible for what they say.
Endnotes
1 Lani Guinier, Keeping the Faith: Black Voters in the Post-Reagan Era, 24 Harv. C.R.-C.L. L. Rev. 393 (1989).
2 Id. at 426.
3 Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 Va. L. Rev. 1413, 1434 (1991) [hereinafter No Two Seats].
4 Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 Mich. L. Rev. 1077 (1991) [hereinafter Triumph].
5 No Two Seats, supra note 3.
6 Id. at 1480.
7 Id.
8 Id. at 1468 (footnote omitted).
9 Triumph, supra note 4, at 1123 (footnote omitted).
10 Id. at 1154.
11 Id. at 1129-30 (footnotes omitted).
12 Id. at 1086 (footnote omitted).
13 Id. at 1129 (footnote omitted).
14 Id. at 1103 (footnote omitted) (emphasis in original).
15 Id. at 1103-04 (footnote omitted).
16 Id. at 1090 (footnote omitted).
17 No Two Seats, supra note 3, at 1479 (footnote omitted).
18 Triumph, supra note 4, at 1101 (footnote omitted).
19 No Two Seats, supra note 3, at 1443. See also id. at 1478 (“My claim is that disproportionate majority power is, in itself, so wrong that it delegitimates majority rule”).
20 Id. at 1440 (footnote omitted).
21 Id. at 1478.
22 Id. at 1497.
23 Triumph, supra note 4, at 1080 (footnote omitted).
24 No Two Seats, supra note 3, at 1481 (footnote omitted).
25 Triumph, supra note 4, at 1136 (emphasis in original).
26 Id. at 1139-40.
27 Id. at 1149 (footnote omitted).
28 61 U.S.L.W. 4818 (U.S. June 28, 1993) (No. 92-357).