In an irony that neither would be likely to appreciate much, Lani Guinier's account of being nominated and then unnominated for the position of head of the Justice Department's Civil Rights Division is reminiscent of Robert Bork's Tempting of America (see Orrin's review).  Both quickly came to be perceived more as symbols than human beings and, as such, ended up being subjected to really unfair personal attacks and having their philosophies caricatured.  But what is really instructive about the two cases is the differences rather than the similarities.

Robert Bork's nomination split the Congress and the punditry on strictly party lines and it just so happened that the Democrats controlled the Senate at that point in time, so he went down to defeat.  However, he did get to have nomination hearings where he was questioned about his views however ineptly by  the members of the Senate Judiciary committee.  [Personally, I learned more of value about constitutional law by watching the hearings than I did in my law school class.]  Despite the fact that his nomination was clearly doomed, President Reagan stood by him and insisted on putting the matter to a vote, allowing Bork to lose honorably and granting him a sense of closure, albeit mixed with disgust, at the end of the ugly process.  Bork later wrote his book in order to explain and amplify his views on the constitution and the legal system and, to a lesser degree, to give his perspective on the nomination fight.  The result is a vital and readable contribution to our understanding of the degree to which our jurisprudence has become politicized and of the dangers it entails, as well as a resigned, but bemused, look at the Senate by someone who ran afoul of the institution.

Lani Guinier's nomination, on the other hand, split the nation along racial lines, with even traditional white allies abandoning black civil rights organizations to oppose her.  Ultimately, even Bill Clinton, her longtime friend, repudiated his own nominee and withdrew her name before she got to the hearings stage.  This, understandably, left Guinier frustrated and humiliated, feeling that she had been denied the opportunity to defend her views and her own good name.  In the most affecting passages in the book, she describes how she was about to appear on Nightline when Ted Koppel told her that the next day's New York Times and Washington Post announced that the White House had decided to pull her name, a fact of which she was unaware at the time.  She also describes having old pal Hillary walk right past her at the White House with a wave and a "Hey kiddo", obviously unwilling to stop and discuss the fiasco and she details her meeting with a dewey eyed President Clinton, who moments after telling her that the meeting was one of the most difficult of his life went before the White House press corps and denounced her as "antidemocratic".  Guinier has written another book, Tyranny of the Majority, which I honestly haven't read, but in this book she whines on ad nauseum about how the failure of her nomination was a catastrophe for the cause of civil rights in America.  In the strangest maneuver of the book, she introduces herself early on as someone who was forced to write controversial articles in order to win tenure, then laments how those views were twisted by the press and hostile politicians, then returns at the end of the book to a defense of them as her true beliefs.  The result is an enormously self-indulgent vanity piece, with insufficient consideration of, and a marked lack of honesty about, the controversial theories that ultimately sank her nomination.  The book spreads more noise than light on the issues.

The most serious flaw of the book, narrowly outweighing her egomaniacal catalogue of what appears to be every compliment that she was ever paid in her life, is the disingenuous treatment of the implications of her view of democracy.  The essential fact is that Ms Guinier does not believe that the United States Constitution, with it's system of representative democracy, adequately defends the rights of minorities.  Therefore, she proposes adoption of schemes like cumulative voting, geared towards allowing the losing minority to win actual representation regardless of their election loss.  For instance, if a school board district voted 60% Republican and 40% Democrat, they would send three Republicans and two Democrats to the board.   Now you could discuss the merits and drawbacks of these types of Rube Goldberg mechanisms until you were blue in the face, but the primary point here is that they represent a radical departure from our current constitutional regime and are a fundamental attack on representative democracy.  There is no reason that we should not consider and debate these types of measures, but intellectual honesty requires that their advocates describe them accurately.  Guinier's refusal to do so casts a shadow of deception over the book.

In the final analysis, where Judge Bork's book stands out in particular for the intellectual rigor of his arguments and analysis, Guinier's is merely interesting as a portrait of the shallowness and duplicity of her friends the Clintons.

(Reviewed:14-Feb-00)

Grade: (D+) Orrin C. Judd

Tweet