The withdrawal of the nomination of Lani Guinier to be assistant attorney general for civil rights is a sad reflection on the skills of the members of the White House staff who failed to either foresee or prepare for the onslaught against her. It is an even sadder reflection on the unprincipled opportunism and, in some cases, hypocrisy and demagoguery, of her opponents, who grossly misrepresented her record. The saddest part of the whole affair, however, is that we will not see the issues raised by the nomination of Professor Guinier debated in front of the Judiciary Committee of the Senate. Such a debate would have provided an extraordinary opportunity for public education on the principles of American politics. And it would, I think, have shown us that it is not Professor Guinier, but her opponents, whose arguments betray a striking misunderstanding of the constitutional, political and moral traditions of the United States.
The central charge against Lani Guinier has nothing to do with racial quotas in employment, which she has criticized. Rather, it is that she has called majority rule into question. Professor Guinier has argued that when local governments have been found to have adopted governmental institutions that blatantly and systematically diminish the political power of African Americans, Federal Courts should adopt new types of remedies. Taking steps to insure that fair election rules allow some black office holders to be elected is not always sufficient, she claims. In addition, Professor Guinier has argued that the Courts should, in some cases, require the adoption of forms of government that insure that the majority will take into account the views of the minority in making important decisions. These forms of government might include, for example, requiring that budgets or important legislation be adopted by extraordinary majorities of, perhaps, sixty percent or two-thirds of the members of a city council or county commission.
To some extent, the Federal Courts have already adopted proposals along the lines suggested by Professor Guinier. They have done so, by the way, with the support of the Reagan-Bush Justice Department. There is no doubt, however, that these proposals do call the legitimacy of majority rule into question. But this is far from making Professor Guinier’s ideas extreme or radical. Indeed, if it is wrong to adopt constitutional or governmental arrangements that force the majority to share power with the minority, then we had better tear up the Constitution and begin again. For nothing is so central to American political traditions than fear of what James Madison called the tyranny of the majority.
The Madisonian strategy embodied in the United States constitution has two central features. The first is what Madison called the multiplication of factions. Madison wanted the United States to have such a diversity of economic, religious and ideological interests that there would be no permanent majority or minority. Public policy, on this model, would be made by temporary and shifting coalitions of interest groups. The greatest successes of American politics have usually resulted when political decisions have been made in this way. And the greatest failures of American politics have always resulted when we have been divided into a white majority oppressing a black minority. We can be grateful this division has not been a permanent feature of our politics and that we have been taking steps, however slowly, to reduce racial divisions. But it would take a Pollyanna—or a racist—to think that there are no longer any places in the United States where racial divisions and racial injustice are the defining features of local politics. Professor Guinier believes that it is in these places that we must adopt the second feature of Madisonianism.
In order to insure that permanent or temporary majorities would have to take the views of the minority into account, the Founders adopted constitutional devices that give minorities a great deal of political power. The system of checks and balances and the bi-cameral Congress essentially create a political system which extraordinary majorities are usually necessary to pass legislation. These devices provide opportunities for relatively small groups to win the support of one (or one part of one) of the branches of government that share political power in the United States.
The Senate that would have had the responsibility to pass on the nomination of Professor Guinier is a shining example of an anti-majoritarian institution. If the nomination of Professor Guinier had come to the Senate floor, it could have been approved or rejected by a majority of 52 Senators who represent a minority of Americans. For the 26 states with the smallest population, taken together, contain only 18% of the entire population of the United States. Moreover, under the current rules of the Senate, Professor Guinier’s nomination could be blocked by a filibuster of 40 Senators who could conceivably represent only 10% of the population of the United States. For Senators, who have used the filibuster to defeat President Clinton’s economic stimulus programs, to complain about Professor Guinier’s anti-majoritarianism is the height of hypocrisy.
So Professor Guinier’s defense of proposals meant to remedy a history of racial discrimination by forcing a majority to share some power with a minority is not only well within American traditions but actually reflects the most central ideas of American politics. They have additional good features as well. Like the provisions of the United States Constitution, they are racially neutral. They are designed to give not just African Americans, but any minority a greater say in government. And again, like the constitutional devices I have mentioned, they are also designed to encourage compromise and moderation on the part of all groups.
Whether Lani Guinier would have applied these ideas wisely as an assistant attorney general is, of course, another issue. It could only be dealt with by a detailed look at her career as a lawyer and as a teacher as well as her academic writings. However, from what little we have learned of her, I see no reason to doubt that she would have been a moderate and judicious advocate of the views she has defended. My judgment might well be wrong. But it is a shame that we, the citizens of the United States, will not have a chance to learn more of her and make an informed judgment for ourselves. And it is a greater shame that Senate opposition and President Clinton’s decision will deny us what might have been a much needed lesson in the basic premises of American democracy.