Tailor-Made to Be Used Against Her

By Andrea Sachs

The issue that Lani Guinier attacks in her writings -- the tyranny of the majority, as James Madison described it -- is neither obscure nor an unworthy target. But it's small wonder that few people are familiar with her scholarship. Turgid and ambiguous, Guinier's writing is not the stuff of bedtime reading. A case in point is her 48,948-word article in the Michigan Law Review of March 1991, titled "The Triumph of Tokenism," which Clinton singled out last week in explaining why he was withdrawing her nomination. "Many of her analyses I agree with," he said, but he dismissed her proposals as "antidemocratic, very difficult to defend."

Guinier stands by her position that Clinton, like her other critics, just didn't get it. "I think that the President and many others have misinterpreted my writings, which were written in an academic context, which are very nuanced, which are very ponderous," she said. On the latter points, no one will argue with her. Guinier's work is mainly directed toward a small audience of law professors who specialize in the Voting Rights Act, the 1965 federal statute that protects racial minorities from electoral discrimination.

In her Michigan Law Review piece, Guinier assails current interpretations of the Voting Rights Act and proposes changes. Essentially she contends that what blacks and Hispanics have achieved under the act is tokenism. Although they are being elected in greater numbers, she says, they remain isolated by legislative racism. A "hostile permanent majority" in some places has been unwilling to give minorities in legislatures a fair share of power.

Her proposed solutions are complicated, at least compared with conventional electoral rules. One remedy is "cumulative voting," in which every voter would be given as many votes as there are seats available. For example, if there were five city-council members, each voter would have five votes. That measure, says Guinier, would allow black voters to cast all their ballots for a black candidate, consolidating their power. Dozens of communities, mainly in Alabama, have already used such schemes. A more drastic remedy would be a "minority veto," which would allow judges to give black legislators the power to veto a measure by the majority in situations where proposals by minority legislators have been consistently thwarted.

Among academics who study voting rights, Guinier's writing is generally held in high regard. "She's the best legal scholar working in voting rights today," says Professor Kathryn Abrams of Cornell law school. "In a scholarly sense, I don't consider her outside the mainstream." That assessment is more strenuously debated in wider legal circles. Says Stuart Taylor Jr. of Legal Times, who has studied Guinier's writings: "She's more radical than her supporters would have you believe. Her proposals seem to be premised on a bleak vision of America as a land of 'subjugated minorities' and a racist white majority."

Radical or not, Guinier's writing is tailor-made to be selectively used against her. Conservative groups and other critics circulated copies of her writings to news organizations, highlighting portions that were purported to take far-out positions. In her appearance on Nightline, Guinier argued that the quoted passages were out of context. She insisted that she was giving "a description of other people's views" in the Michigan article when she contended that "authentic leaders are those elected by black voters," thereby suggesting that black politicians elected by white majorities are not legitimate. Even in context, it is unclear whether she was endorsing that view or merely citing it. In any event, the reader who mattered most did not agree with her assertions.