The Justice Department Loses a Formidable Lawyer

Hendrik Hertzberg

Lani Guinier: Her Problem Was Her Ideas

        There was never any doubt about Lani Guinier's qualifications to be Assistant Attorney General for Civil Rights. Radcliffe and Yale Law School; a clerkship with the Chief Judge of the United States District Court in Michigan; four years' apprenticeship as special assistant to Drew Days, who held the Justice Department's top civil-rights job during the Carter Administration; seven years as a highly successful litigator with the NAACP Legal Defense and Educational Fund; and, most recently, five years as a respected, energetic, and popular professor of law at the University of Pennsylvania Law School: no nominee for the post has ever been better prepared than Lani Guinier. That wasn't her problem. Her problem was her ideas.

A Critic of Single-Member Districts
        In her most important writings -- four long law-review articles published between 1989 and 1993 -- Ms. Guinier returns again and again to the theme of the shortcomings of the system of legislative representation that is almost universal in the United States. That system is based upon single-member, winner-take-all, geographically based electoral districts. Because she writes from the perspective of a civil-rights lawyer, her main concern is how blacks fare; and, because her specialty is the Voting Rights Act, her focus is on local government, the level of government most often affected by the Act.
        Given the racial polarization that exists in our society -- a condition that Ms. Guinier forthrightly recognizes, but certainly does not advocate -- black legislative candidates are seldom elected except in "majority minority" single-member districts. Voting-rights lawyers have therefore concentrated on forcing local jurisdictions to create "safe" black-majority districts, and also on eliminating at-large systems that have demonstrably allowed white majorities to shut even sizable black minorities out of representation altogether.
        Ms. Guinier takes a different tack. In common with many conservative, and some liberal, critics, she recognizes the moral and political costs of racial gerrymandering: while it does allow black legislatures to be elected, it creates monolithically white districts as well as monolithically black ones; it depresses political competition, voter turnout, and interracial political alliances; it depends for its effectiveness on segregated housing patterns (and, in fact, gives black politicians an incentive to perpetuate such patterns).

PR as the Preferred Alternative
        Ms. Guinier proposes as an alternative a variation on proportional representation which she calls "proportionate interest representation." It's really a modified at-large system. In a citywide election for five council seats, say, each voter would have five votes, which she could distribute among the five candidates any way she likes. If a fifth of the voters opted to "cumulate," or plump, all their votes for one candidate, they would be able to elect one of the five.         Blacks could do this if they chose to, but so could any cohesive group of sufficient size. This system is emphatically not racially based: it allows voters to organize themselves on whatever basis they wish. It has actually been tried in a few jurisdictions -- including the proverbially American city of Peoria, Illinois -- and has had notable success in all of them.
        Pressed to justify his abandonment of Ms. Guinier, Mr. Clinton said that she had seemed to advocate proportional representation, a position he called "antidemocratic and very difficult to defend." Antidemocratic? That will come as news to the good people of Germany, Spain, the Netherlands, and Sweden, among other countries. Indeed, most of the electorates of Continental Europe, including those of the liberated East, elect their legislatures under some form of proportional representation; so do the Irish, the Italians, and the Israelis; and so will the New Zealanders, who passed a referendum on the subject in November 1993.

PR and Democracy
        PR, 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, like ours and Britain's, often produce minority governments. The last peacetime British government that represented a majority of the British voters was Stanley Baldwin's, elected in 1935; and Bill Clinton himself, it should be remembered, owes his job to forty-three percent of the voters.
        While there may be reasons that PR is not suitable for the United States at the national level, lack of democratic purity is not among them. Mr Clinton was right in calling PR "difficult to defend," but that is because Americans, by and large, are ignorant of the existence, let alone the details, of electoral systems other than their own.
        Thanks to a combination of Presidential weakness, congressional hysteria, public ignorance, and Lani Guinier's own intellectual adventurousness, the civil-rights division of the Justice Department has been deprived of the services of a formidable lawyer. Ms. Guinier's ideas are now, in a sadder sense than before, "academic."

        Hendrik Hertzberg is executive editor of The New Yorker magazine. He is on the Advisory Board of The Center for Voting and Magazine. Reprinted by permission;1993, The New Yorker Magazine, Inc.

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