Writing, Thinking, Guinier’s Crimes

Major Cox and Lani Guinier. Martha's Vineyard, August 1993.

Major Cox and Lani Guinier. Martha's Vineyard, August 1993.

Did President Clinton need to sacrifice Lani Guinier, his long time friend and Yale Law School classmate, whom he nominated to head the Justice Department’s Civil Right Division? Were her ideas, as Mr. Clinton claims, “antidemocratic and very difficult to defend?” I think not. I’m reminded of what John Milton, a powerful defender of freedom of expression, said in England almost 350 years ago on the subject of ideas: “…Let [truth] and falsehood grapple; who ever knew truth put to the worse, in a free and open encounter?”

One of Ms. Guinier’s so called “antidemocratic” ideas appeared in an article she wrote for the Michigan Law Review. In the article Ms. Guinier argued that electing black members to political office may not be enough. She ponderously suggested, “a Fair system of political representation would provide mechanisms to insure that disadvantaged and stigmatized minority groups also have a fair chance to have their policy preferences satisfied.” How could President Clinton have a problem with this idea? This very concept of ‘balanced power’ is at the root of our constitution.

Balanced-power is a treasured concept that the founders of the country wrote as a central theme to our constitution. Balanced-power is the constitutional mechanism that required an all white school board to open the doors of an all white school in Topeka, Kansas to admit a little black girl named Linda Brown. In the Brown Decision, the Supreme Court found the natural rights of one little black girl paramount to the segregation preferences of the white majority.

Personally, I think that the president’s claim that he “…can’t defend…” Ms. Guinier’s ideas is disingenuous. He can’t truly believe that there should not be some mechanism by which “…disadvantaged and stigmatized minority groups also have a fair chance to have their policy preferences satisfied.”

Another one of Ms. Guinier’s articles that President Clinton reportedly read and found…in his opinion… antidemocratic ideas appeared in the Boston Review where she argued that “…in a racially [and I will add sexually] divided society, majority rule is not a reliable instrument of democracy.” One need not be an American history scholar to catalogue all the antidemocratic outcomes of majority rule. Surely President Clinton must know that majority rule provided us with a long list of antidemocratic outcomes such as; Negro Slavery, Indian Reservations, Japanese Internment Camps and a white-male dominated government.

Ms. Guinier’s ideas on cumulative voting and supermajority requirements are not new or radical, nor are these ideas antidemocratic as President Clinton claims. Many democratic organizations use cumulative voting as the mechanism by which to transfer individual power to group power. Here for example is how the concept worked in Chilton County Alabama Commission elections to fill seven commission seats. Each voter casts seven votes, one vote for one candidate for each vacant seat or all seven votes for one candidate or any combination thereof. Federal judges have ordered cumulative voting as a fair and democratic remedy for race-based social and political inequities. How could President Clinton find the concept of cumulative voting antidemocratic? Has he forgotten how he became President? Surely Mr. Clinton remembers that the entire presidential nomination process is a system of cumulative voting.

The concept of a supermajority is one of the checks and balances written into our constitution. The constitution requires several supermajority votes in congress. For example, only a supermajority vote by both houses of congress can override a presidential veto. Other examples of the supermajority vote are the number of votes required in the House of Representatives to impeach a president or for the Senate to ratify a treaty.

Mr. Clinton may make political points with some fraction by calling Ms. Guinier’s ideas antidemocratic and very difficult to defend and then withdrawing her nomination. But in the long run I think he loses more than he gains by dumping Guinier. This action also confirms what many of his detractors said during the campaign and some of his supporters are just beginning to wake up to…that is; Bill Clinton is just another slick politician with values controlled by the polls.

Unfortunately the Lani Guinier affair has many more political implications for the President than either victim of ‘nannygate’…Zoe Baird or Kimba Woods. In the cases of Baird and Woods, the issue was clear; these women violated the law. In each of their cases they had failed to pay the social security taxes of persons hired to take care of their children. Lani Guinier’s only crime is one of thinking and writing about ways to eliminate the most dangerous threat confronting our democracy today…Racism.


Originally Published: 7 July 1993, Montgomery Advertiser

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