In an op-ed page article last Sunday in the Washington Post, Lani Guinier set forth "what I would have told" the Senate Judiciary Committee had President Clinton not bowed to criticism two weeks ago and withdrawn her nomination to be assistant attorney general for civil rights. Reading her essay makes it clear that, however awkward the timing, the president made the right decision in separating himself from her views on voting rights and racial politics.
Her own words, as I read them, constitute the clearest proof that Guinier's conceptual framework for applying the law is one that would have caused Clinton endless grief and controversy had Guinier been in a position to put the power of the Justice Department behind her approach.
Guinier wrote that, had she been allowed to testify in a confirmation hearing, she would have told the senators that she "applauded, with them, the tremendous strides America has made since 1965, but I would have shown them that the Voting Rights Act has not yet completely succeeded in giving all Americans an equally effective voice in their government. . . . In my work, I have argued that when voters are denied the ability to choose for themselves candidates who conscientiously represent their interests, those representatives are not "authentic.' "
Guinier insists that she does not believe that skin color or ethnicity is the test of "authenticity," and affirms that blacks can represent whites and vice versa. But she is clearly groping for an authenticity yardstick beyond just the ability to win elections. She finds fault with "rules that protect incumbents even when they lose touch with the electorate or . . . standards that simply count black faces in the legislature without asking whether black voters chose those people as their representatives."
It is this hunger for a qualitative test of representation that Guinier's critics rightly challenged and Clinton rightly decided he could not defend. The professor insists that she is "focused on giving voters the choice as to what attributes should matter in picking a representative." But her record and the examples she cites in the Post article clearly indicate her belief that government should keep tinkering with the process until the results are what she would consider "right."
She cites victories she won as a civil rights attorney in getting an Alabama county to adopt "cumulative voting," a system that (in this instance) gives each voter seven votes for the county commission and encourages minority blocs, be they blacks or Republicans, to give all their seven votes to one of their own. She also cites the Mobile, Ala., requirement that five of seven city council members approve any ordinance _ in effect, a veto power for the three blacks on the council.
Neither "cumulative voting" nor supermajority rules for passage of legislation are radical remedies for exceptional situations. But they are not the examples on which one would hope to see election systems or legislatures build and expand. And especially they are not remedies one would want to see the federal government impose in the quest for something as vague as "authenticity" of representation.
What pervades Guinier's essay is an assumption that the dynamics of the political process are so stacked against blacks and other minorities that the rules of the game must be constantly rewritten to assure that they are not victimized. In her Post article, Guinier did not address some of the statements from her earlier writings that critics had cited with alarm, including her 1991 contention in the Virginia Law Review that "racism excludes minorities from ever becoming part of the governing coalition. . . ."
But by arguing that past applications of the Voting Rights Act fall short of giving all Americans "an equally effective voice in their government," Guinier confirms her critics' fears. The 37 members of the House Congressional Black Caucus were certainly "part of the governing coalition" a few weeks ago, for without their votes, the Clinton budget would not have passed the House.
But that apparently is not enough for Guinier. Some of the Black Caucus members are longtime incumbents whose hometown critics argue that they have "lost touch with the electorate." And some represent districts where they must heed the interests and views of whites as much as those of blacks. While some Black Caucus members are among the shrewdest inside players in Congress, others are clearly not "equally effective" as voices for their constituents.
All of that, she indicates, she would have sought to remedy by revising the rules of the game. When President Clinton names someone else to the top civil rights post, he will have an opportunity to confirm that basic fairness is his goal _ not some predetermined distribution of power.
Washington Post Writers Group