Lani Guinier States Her Case

Article excerpt

PRESIDENT Clinton's nomination last spring of Lani Guinier to head the civil rights division in the United States Justice Department ignited a firestorm of controversy. The headline of an opposing article in the Wall Street Journal dubbed Guinier a "quota queen." Critics branded the law-school professor and civil rights litigator a "radical" whose proposed remedies for violations of the federal Voting Rights Act are "antidemocratic."

Bowing to political pressure, Clinton withdrew the nomination even before Guinier's Senate confirmation hearings began.

The attacks on Guinier focused on several lengthy law-review articles she wrote about the voting rights of blacks and other minorities. But few people outside of legal-academic circles have actually read the articles.

They are reprinted in "The Tyranny of the Majority: Fundamental Fairness in Representative Democracy," together with two other essays by the author and her remarks upon exiting the confirmation battle. Readers can decide for themselves if Guinier's analysis and opinions were misrepresented, as she contends. More important, the book may substitute for Guinier's aborted confirmation hearings in occasioning a public debate on critical national issues.

This is not a book to curl up with. It is a demanding work of political philosophy and legal analysis written with the absence of flair that has become de rigueur for social-sciences scholarship. But readers who make the effort to track Guinier's complex arguments - whether or not they accept her conclusions - will be rewarded with new ways of looking at one of America's most vexing political problems.

It's interesting to note that nowhere in these writings does Guinier, this so-called quota queen, even discuss quotas - if that term means political or economic benefits reserved for blacks or other minority-group members at the expense of non-preferred groups. The remedies Guinier advocates for diluted minority voting rights do not include laws that guarantee election outcomes for disadvantaged groups, as some critics claim.

Guinier's analysis begins with the recognition that under a majority-rule, winner-take-all voting system, 51 percent of an electorate can exercise 100 percent of the power. This is fine when the majority is subject to change, as interests and voting alliances shift in the manner contemplated by James Madison. But majority rule is problematic when there is a permanent majority and a permanent minority. This is the condition Guinier perceives in many jurisdictions, especially at the county and municipal level, owing to racial polarization in voting.

She writes: "In a fair system, a permanent majority should not exercise all the power and a permanent minority should not always lose." The "tyranny" of a majority that can govern without any sensitivity to or accommodation of minority interests is still more unacceptable, Guinier says, when majority power is used to oppress minorities. That state of affairs is her reading of the black experience in much of America, even during the years since black citizens gained more-or-less equal access to the ballot box. …