On April 29, 1993, President Bill Clinton nominated Lani Guinier to the position of assistant attorney general for civil rights. Objections to her nomination arose almost immediately; critics who examined her scholarly writings claimed that she was an antidemocratic, divisive “quota queen” and demanded her withdrawal. On June 3, 1993, Clinton, claiming that he had reread her writings, withdrew the nomination, saying that he differed with her views about democratic fairness. This book is a collection of the controversial essays that originally appeared in academic law journals and serves as Guinier’s attempt to bring her case to the general public.
The foreword by Stephen L. Carter, author of Reflections of an Affirmative Action Baby (1993) and professor of law at Yale University, is a fourteen-page defense of Guinier’s stance on civil rights and majority rule. Carter accurately points out that many of the critics and reporters following the Guinier nomination story had not actually read her works, which resulted in many of her words being taken out of context and considerable distortion of her views. He then takes issue with Stuart Taylor, a respected columnist for the American Lawyer who did carefully study all of Guinier’s writings and then wrote an article critical of Guinier’s ideas. Carter says, “Taylor, although a fine reporter, was against Guinier and should therefore have been considered by his colleagues a biased source.” One of the main reasons for this book was to present an objective treatise of Guinier’s views, yet it seems strange that a reporter who took the time to research her writings beforehand and subsequently disagreed with her ideas is so quickly dismissed. Carter’s other point is that Guinier’s writings are aimed at a specialized academic audience and not intended for lay readers, and this was the cause of much of the distortion. Apparently Carter believes that Guinier’s arguments are too complex for laypersons to comprehend and too difficult for reporters, anxious for a “sound bite” for the evening news, to follow. Yet this book consists, except for a short introduction, almost exclusively of the original scholarly essays as they appeared in various law journals.
All of this aside, there is no doubt that Guinier’s views on representative democracy are controversial. Her basic belief is that majority rule is not a reliable instrument of democracy in a racially divided society and that there is nothing inherent in democracy that requires majority rule. Since whites are in the majority in the United States and blacks are a minority, the black minority is excluded from meaningful participation in government. In effect, she says, majority rule means that only 51 percent of the population could decide 100 percent of the elections. This means that majority rule is not constrained by the need to bargain with minority interests or even to listen to them. If the majority wields disproportionate power based on its prejudices, Guinier concludes, in extreme circumstances majority domination may become majority tyranny.
Majority rule is a fact of democratic life, and even the Founding Fathers were well aware of its inherent dangers. It is also true that throughout the history of the United States the concept of majority rule has frequently been abused by those seeking to exclude minority participation in the political process. Is there any genuine alternative, though, to simple, winner-take-all majority rule? One decision-making alternative proposed by Guinier is what she calls “cumulative voting.” To illustrate how this concept works, she cites an incident at Brother Rice High School in Chicago. The senior prom committee selected music for the dance by asking seniors to list their three favorite songs; the band would play the songs that appeared most frequently on the lists. Since Brother Rice was predominantly white, however, the black seniors’ preferences were outvoted by the white majority. “To the black students,” Guinier observes, “majority rule sent the message: ‘we don’t count’ is the ‘way it works’ for minorities.” With cumulative voting, the system she suggests, each student could have voted for ten songs or could have opted to “cumulate” votes and vote ten times for one song if he or she wished. In this way, the songs of the majority would have been on the list, but the songs preferred by the minority would also have appeared. Utilizing this system on a national level, voters would get the same number of votes as there are seats or options to vote for, and they could distribute their votes in any combination to reflect their preferences. Thus if Smith, Jones, and Brown are running for Congress, each voter would get three votes; if he prefers Smith, he could cast all three votes for her. Guinier believes that cumulative voting would eliminate gerrymandering—the redrawing of election districts to ensure continued control—as well as...
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