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Surprise Witness

Why I want Lani Guinier to testify at Sotomayor’s confirmation hearing

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Sotomayor speaking at the White House after the announcement of her nomination. (Chip Somodevilla/Getty Images)

The curtain is about to go up on the confirmation hearings for President Obama’s nominee to the Supreme Court, Judge Sonia Sotomayor. During the advance maneuvering, The New York Times reported that the campaign against Sotomayor has been drawing inspiration from the attacks that succeeded against President Clinton’s nomination of Lani Guinier for a Justice Department position.

Now there would be an illuminating witness at the Sotomayor hearing. Guinier was a professor of law at the University of Pennsylvania when Clinton, at the start of his presidency, nominated her to be assistant attorney general for civil rights. The nomination was greeted by a front-page dispatch in the Forward, of which I was then editor, quoting articles she’d written arguing that civil-rights law required the election of minorities.

Quite a tumult followed that story, particularly after The Wall Street Journal published an op-ed piece under the headline “Quota Queen.” It resonated because the new administration was being tested in respect of first principles. Word soon went out from the Senate Judiciary Committee, which was headed by then-senator Joe Biden and included Senator Patrick Leahy, now the committee’s chair, that Guinier was too controversial. Clinton withdrew the nomination, saying he’d been reading her writings and found them troubling.

At the Forward, we’d been troubled by her writings, too, though we favored giving her a hearing. I often wondered what the professor would have said had the Senate had the decency to give her one. Then, in 2004, I sat down to review a collection of political essays by Hendrik Hertzberg, an editor at The New Yorker. The volume contained several pieces that touched on the Guinier affair, and it advanced one of the ideas that caused her so much trouble—proportional representation.

This is a system in which a winning party doesn’t take all. Instead a legislature is divvied up proportionally among parties. Proportional representation is in use in various parts of Europe and in Israel. It hasn’t won a lot of admirers here in America, though it was tried in New York City in the 1930s and 1940s. Its “main result,” I noted in a review of the Hertzberg collection, had been the admission of a communist faction onto the City Council. When proportional representation was repealed in New York in the late 1940s, the original New York Sun called it the communists’ worst defeat since they took over the American Labor Party.

Hertzberg promptly sent me a note expressing doubt that the elevation of the communists had been the main result of proportional representation in New York. “My impression,” Hertzberg wrote, “is that its results also included representation for other political minorities.” He mentioned, among others, Republicans. Hertzberg’s note, I wrote in a rejoinder, “caused me to sit up a bit straighter in my chair and stroke my chin, smiling at the thought of proportional representation as a way to elevate more Republicans to a City Council that is dominated by the left.”

Eventually I received an email from Guinier herself. My review had mentioned that the American Labor Party had followed up on the era of proportional representation by running Ewart Guinier, Lani Guinier’s father, for borough president of Manhattan. Lani Guinier wrote to tell me that proportional representation was not something she had discussed with her father, who had died in 1990 after a long bout with Alzheimer’s. In fact, she had not started writing about it until her father was well along in the disease.

Her interest in proportional representation, she wrote, was an outgrowth “of my concerns, after litigating cases in the South, that the single member districting strategy was not fulfilling its promise.” She said that when she became an academic, she “returned to explore further the questions that had haunted me from my litigating days. I also recalled learning about forms of PR in my corporations course at Yale Law School (since it is the way many corporations elect their board of directors).” She said that proportional representation had once been called by the head of the Citizens Union, Henry Stern—no leftist—the “golden age” of the City Council.

So one day I traveled to Cambridge and called on Guinier in her office at the law school. I was eager to ask her, among other things, about Mayor Michael Bloomberg’s campaign for non-partisan elections. I didn’t share the mayor’s annoyance with parties, and The New York Sun, now revived under my editorship, campaigned against his scheme, which the voters defeated. But I was troubled that the Republicans had been for so long been unable to gain but a toehold in the New York City Council, not to mention the State Assembly in Albany.

Guinier’s replies to me were off the record, but I don’t think it would be a violation of the ground rules to say that she struck me as not only exceptionally gracious but also extremely smart. I subsequently wrote a column in the Sun reprising all this and suggesting that Bloomberg invite her to lunch as he considered the next approach to charter revision in the city. And I invited Henry Stern of the Citizen’s Union to write a piece endorsing the possibility of proportional representation as a route to reform in the city.

Which leads me back to Sotomayor. She has just been overruled by the Supreme Court in the case of the New Haven firefighters, and we may be at the end of the era of affirmative action of the kind New Haven was using. But that doesn’t mean that the problems of racial bigotry—and other forms of exclusion—have been solved in our society. Not even conservatives like myself believe that. Guinier herself was quoted in The New York Times the other day as saying that the debate over Sotomayor’s nomination was, as the Times characterized it, “an opportunity for civil rights advocates to push back against the kind of criticism that had thwarted her own nomination.” I, for one, would be in a mood to hear what she has to say.

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Surprise Witness

Why I want Lani Guinier to testify at Sotomayor’s confirmation hearing

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