0.cached.png
By George F. Will
Share
Newsweek is a Trust Project member
See more of our trusted coverage when you search.Prefer Newsweek on Googleto see more of our trusted coverage when you search.
Lani Guinier deserves some sympathy. She is an academic and a liberal Democratic activist, so she probably cannot understand what the fuss was about. She probably rarely associates with people who think her ideas are strange. (After McGovern lost 49 states in 1972, a member of Manhattan's liberal literati exclaimed in bewilderment, "But everyone I know voted for him!") Many of Guinier's ideas are extreme, undemocratic and anticonstitutional. But they also are reflections or extensions of tendencies in today's academic thinking and public policy.
She believes majority rule is inherently problematic in America's incurably racist society. She favors federal imposition on state and local governments of rules that would generate results pleasing to groups she prefers. She says existing civil rights laws demand "a results-oriented inquiry, in which roughly equal outcomes, not merely an apparently fair process, are the goals." Any process is unfair if the outcomes it produces frequently disappoint Guinier's favored groups. She says "each group has a right to have its interests satisfied a fair proportion of the time." Each group, that is, among those groups that Guinier believes merit preference. She will decide what is a "fair" proportion. Her radical proposals include weighted voting, racial vetoes of majority actions and other measures to abridge or block majority rule.
Anyone shocked by Guinier's ideas has not been paying attention to developments in the culture and in public policy. We already have moved a long way toward Guinier's goal of a nation of grievance groups exploiting the coveted status as "victims" (of America's wickedness) to claim special rights and entitlements.
Read More on News
Guinier, believing results more important than rules, would dilute democracy in order to promote "progressive" social outcomes. Judicial activists have been lionized for doing just that. (Impatient with democratic debate about abortion policy? Get a court to discover a new "right.") Guinier believes blacks should have special rights. Well, where she works, they do. She teaches at the University of Pennsylvania where some blacks angry about a conservative columnist destroyed virtually an entire press run of the newspaper, without any punishment.
She says that blacks who are not elected primarily by black votes are not "authentic" black leaders. "Authentic" blacks have deep roots in "the community." (Guinier, a graduate of Harvard and Yale Law, is a wealthy tenured Ivy League professor; and she is an arbitrator of black "authenticity." She suggests that a black Republican can be only "descriptively black.") She says "authentic" blacks have a "cultural and psychological view of group solidarity." But many of liberalism's advanced thinkers embrace the idea that groups are homogeneous and that groupthink is natural and good. Affirmative action policies often are justified as ways of including "minority perspectives," as though racial and ethnic groups have (or "authentic" members of these minorities have) uniform "perspectives." Such tribalism is premodern and morally retrograde but it is all the rage where Guinier comes from: academia.
An implication of her writings is that only blacks can properly represent blacks. That is the theory of "categorical representation," which holds that the interests of particular groups can be understood and articulated only by members of those groups. This idea was codified years ago in the Democratic Party's quota system for convention delegates. The New Republic, calling for withdrawal of the Guinier nomination, denounced her "reductionist identity politics," the premise of which is that identities, and rights, derive from group membership. But that is the idea that has produced racial "set-asides," hiring quotas and other "race-conscious remedies," including the "race norming" of test scores to prevent "disparate impacts" of employment tests. (Under race norming, scores are segmented by racial groups and individual's scores are reported not in relation to all those taking the test, but only in relation to others in the individual's racial group. Race norming was outlawed in 1991 but the Clinton administration is promoting policies very similar.)
Illegal 'prejudice': People like Guinier, who affix the label civil rights" to every bit of their political agendas, have made it an empty phrase-a classification that no longer classifies. This, too, is a consequence of a "progressive" idea-"critical race theory," which is fashionable in many law schools. It holds that America is so saturated with racism that any social problem is a civil rights problem. Guinier believes the Voting Rights Act is violated by any legislative body where measures favored by certain government-approved minorities are often defeated. She purports to believe that under the Voting Rights Act as amended in 1982, such a pattern of defeats is itself proof of illegal "prejudice" that makes mandatory her "remedial" overthrow of the rules of American democracy. But it is impossible not to detect cynicism: How can she square what she (and she virtually alone) says Congress did, in 1982, with her dogma that white-majority legislatures cannot rise above America's pandemic hostility to blacks?
Speaking of cynicism, Ralph Neas, the "civil rights activist" who ran the campaign of lies and scurrilities against Robert Bork, argued on Guinier's behalf that senators should defer to a president's personnel choices. But Neas was a leader of the successful campaign for rejection of William Lucas, Reagan's choice for the position Guinier sought, because Lucas was a particularly objectionable phenomenon-a black conservative. Still, presidents generally should get the people they want. Guinier was an exception to that rule because she aggressively misconstrues the laws she would have been responsible for enforcing.
At the end of this debacle Clinton's attorney general was still describing Guinier's nomination as "superb," Clinton was claiming that he had just that day discovered what his friend of 20 years thinks, and the usual groups (the Congressional Black Caucus, feminists, etc.) were making the usual claim that Guinier is a "victim." Just another day in the "reinvention of government" by a "New Democrat." What next? Next, this lot will "fix" the economy and "reform" the health care system. Hang on.
Submit Correction
View Editorial & AI Guidelines