The Case of Lani Guinier

It began over dinner. Abigail Thernstrom, a conservative who argues that America’s race problem has been substantially solved and that measures to deal with it should wind down, was dining in April 1993 with a Washington legal activist of similar views, Clint Bolick. “Clint,” Ms. Thernstrom said, “you’re going to love her.”

The “her” was Lani Guinier, professor of law at the University of Pennsylvania, who was said to be President Clinton’s choice for assistant attorney general in charge of the Justice Department’s Civil Rights Division. Ms. Thernstrom was being ironic. She meant that Lani Guinier would make a wonderful target for conservatives, a “very radical” professor whose nomination could be defeated in the Senate.

Mr. Bolick had never heard of Professor Guinier. But as he explained later to Michael Isikoff of The Washington Post, he was looking for a chance to get even with the civil rights and liberal organizations that had nearly defeated the nomination of his mentor and friend, Clarence Thomas, to the Supreme Court. Mr. Bolick had worked for Justice Thomas at the Equal Employment Opportunity Commission and then for William Bradford Reynolds, President Reagan’s far-right assistant attorney general for civil rights.

Professor Guinier was nominated on April 29. The next day Mr. Bolick had a piece on the editorial page of The Wall Street Journal. It was a devastating attack on Ms. Guinier and on Norma Cantu, nominated to be assistant secretary for civil rights in the Department of Education.

Clinton’s Quota Queens,” the headline said. It could have been the work of the savagely effective headline-writers at The Sun, Rupert Murdoch’s British tabloid. The label “quota queen” stuck to Professor Guinier, although the facts belied the implication that she was a great advocate of racial quotas.

The Bolick article’s main attack was on ideas put forward by Professor Guinier, in law review articles, to make the right to vote more meaningful for historically disadvantaged groups: “discrete and insular minorities,” as Justice Harlan F. Stone famously called them. Mr. Bolick quoted passages in which she suggested dropping the “‘winner-take-all’ features of any majoritarian electoral or legislative voting process in which the minority is identifiable, racially homogeneous, insular and permanent.” Instead she proposed a voting system in which “voluntary minority interest constituencies could choose to cumulate their votes to express the intensity of their distinctive groups interests.”

That law-review language, characteristically abstract, dealt with a real problem. Through two thirds of this century, blacks were unable to register or vote in large parts of the South. The Voting Rights Act of 1965, passed by Congress under the pressure of the civil rights movement, finally overcame the devices of trickery and violence that had disenfranchised blacks. But as they became able to vote, they were still largely unable to elect one of their own. The reason lay in the way a voting system based on districts works. Politicians of the majority group can—and in the South …

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Letters

The Lani Guinier Case September 24, 1998