Luckily, Lewin’s new law partner—his daughter, Alyza, with whom he had founded an independent practice, Lewin & Lewin, a few months earlier—knew the perfect candidate. Her childhood friend Naomi Siegman, a pediatrician, was living in Jerusalem with her husband, Ari Zivotofsky. And in October 2002, a month after Bush signed the new law, their youngest son, Menachem, was born at Shaare Zedek, the oldest Jewish hospital in Jerusalem. “I’ve known Naomi my whole life,” Alyza Lewin said. “So, when she had the baby, I called her and said, ‘Go ask.’ And that’s how we got our test baby.”

On Monday, the boy, now 9 years old and only beginning to understand that his name is attached to a potentially landmark case, will be in Washington to watch Nathan Lewin argue on his behalf before the U.S. Supreme Court. It will be Lewin’s 28th appearance before the justices in the 50 years since he was admitted to the bar—a career in which he’s successfully argued for everything from the government’s use of informants in its case against Jimmy Hoffa to Chabad’s right to put up a menorah in front of Pittsburgh’s City Hall. “Nat is an absolutely off-the-charts brilliant lawyer,” said Alan Dershowitz, who has been friends with Lewin since the early 1960s, when both were young attorneys in Washington—Dershowitz as a clerk for Judge David Bazelon, chief of the U.S. Court of Appeals in the District of Columbia, and Lewin as a young hotshot in the Department of Justice.

In the four decades since he left the government, Lewin, an Orthodox Jew, has had some hotshot clients. In the 1980s, he gained notice as a lawyer for the actress Jodie Foster when she was called to testify against her stalker, John Hinckley Jr., after his assassination attempt against President Ronald Reagan. Later, Lewin represented Edwin Meese, Reagan’s attorney general, and kept him out of court in the wake of the Iran-Contra affair.

But it is Lewin’s work for Jewish causes that will likely be his lasting legacy. His first client in private practice was a Holocaust survivor who was concerned about jeopardizing his U.S. citizenship if he were drafted into military service while visiting Israel; Lewin subsequently defended members of the Kahanist Jewish Defense League. In recent years he has argued for the right of the Satmar Hasidim to have their own public school district in the Catskills enclave of Kiryas Joel, and he has represented Sholom Rubashkin, the former official of Agriprocessors, the now-shuttered Postville, Iowa, kosher meatpacking plant, in appealing the 27-year sentence he is serving for fraud.

Even friends like Dershowitz question whether all of Lewin’s Jewish cases have been good for the Jews. “The difference between us is that he spends most of his time representing the Orthodox community,” Dershowitz told me. “So, we have differences on issues like the menorah, or aid to schools, and we both have our opinions on what is best for the Jewish community, as a whole.” But on the Zivotofsky case, Dershowitz said, “we totally agree.” A review of the amicus briefs submitted in Zivotofsky v. Clinton, including one filed by a broad coalition that includes B’nai B’rith, the Anti-Defamation League, the Jewish Council for Public Affairs, the American Israel Public Affairs Committee, and all three branches of Judaism, suggests that the preponderance of the organized American Jewish community is also on Lewin’s side.

Yet from Lewin’s perspective, the Israel aspect is the least interesting thing about the case. “This case is much more limited in a Jewish context,” he told me. “But it’s much broader in the separation of powers context.” The court’s decision will only apply to the 50,000 or so U.S. passport holders born in Jerusalem since 1948. But the precedent it sets will determine whether Congress has the authority to pass laws concerning foreign affairs that have binding power over the president.

***

At 75, Lewin has a gravelly voice, a close-cropped white beard and, behind round glasses, the twinkly eyes of a favorite uncle. He talks with his hands, often tapping the table in front of him for effect, and favors a green knit kippah and whimsical ties—Snoopy sometimes, graphic flowers the day we met at Lewin & Lewin’s modest offices in downtown Washington. The conference room there is haphazardly decorated with framed courtroom sketches, black-and-white Adrian Bonfils photographs of Jerusalem from the late 1800s, and an antique Amsterdam map labeled “Iudea et Terra Sancta.” Another wall holds a version of the Lawyer’s Prayer, in Hebrew and English, with a citation from Deuteronomy: “Justice and only justice thou shalt pursue.”

Continue reading: Supreme Court clerkship, Bobby Kennedy’s DOJ

Is this the exasperated Yiddish word’s first appearance at the highest court in the land? It is not, and close court-watchers could actually guess which justice was the first to use it. It’s not Brandeis or Ginsburg or any of the Supreme Court’s other eight Jewish justices past and present. Rather, the feisty, Queens-born, extremely Catholic Antonin Scalia first deployed “chutzpah” in 1998, and in much the same way that Kagan did: “It takes a particularly high degree of chutzpah for the [National Endowment for Arts] to contradict this proposition,” he complained, “since the agency itself discriminates—and is required by law to discriminate—in favor of artistic (as opposed to scientific, or political, or theological) expression.” In both cases, “chutzpah” is negative; more precisely, it is a specific form of hypocrisy.

Yet, as Jack Achiezer Guggenheim quoted a New Jersey federal court soon after Scalia’s c-bomb in a fabulous article on the intersection of U.S. law and Yiddish, “Legal chutzpah is not always undesirable, and without it our system of jurisprudence would suffer.” In other words, that Brown fellow who sued the Topeka, Kansas, Board of Education certainly had chutzpah, too.

Strong Opinions [TNR]
The Supreme Chutzpah [Kentucky Law Journal/Jewish Law]

Their task was to master Wolfenstein 3D, the 1993 computer game that confronted its players with a heavily pixilated, mech-suited Fuhrer strapping large guns, and proved to game developers that a “first-person shooter”—a game in which players navigate three-dimensional worlds, in first- and third-person perspectives, mowing down foes with machine guns, chainsaws, and plasma cannons—could be a massive hit. In the years since, the genre has become one of the most popular and highly grossing entertainment formats of all time, with yearly sales in the billions of dollars. With such success has come, inevitably, controversy: The Columbine killers played a follow-up to Wolfenstein 3D before their rampage, increasing concerns about the effects of video games on children and teenagers.

When the Supreme Court published its decision in the case of Brown v. EMA at the end of last month, the Justices ruled against a California statute prohibiting the sale or rental of violent video games to people under the age of 18. Once again, a sturdy American paradox was reaffirmed, one that was articulated perspicaciously 62 years ago by an iconoclastic cultural critic named Gershon Legman. “Sex,” he noted, “which is legal in fact, is a crime on paper, while murder—a crime in fact—is, on paper, the best seller of all time.”

If Legman is remembered at all today, it is usually as the foremost modern collector and theorist of dirty jokes. But his strange, varied career also included a great deal of advocacy on behalf of origami and a stint collecting erotic publications for Alfred Kinsey. Love & Death: A Study in Censorship, published in 1949, was his most influential book, despite being self-published and suppressed by the U.S. Post Office. It was taken seriously enough that two chapters were translated in Jean-Paul Sartre’s Les Temps Modernes in Paris, while the poet William Carlos Williams included it in his list of that year’s 10 best books in the New York Times.

It’s of little wonder: In 1949, censorship was rampant, enabled by the 1873 Comstock laws, which made it illegal to send any “obscene, lewd, or lascivious” material through the mail. So vigorously were the laws enforced that in 1948 a book of short stories by Edmund Wilson—at that point, the nation’s most highly respected literary critic—was suppressed because of its mildly erotic content. But whereas sex made censors jumpy, violence never had. Laws advocated vigilance on both fronts—New York, for example, passed legislation in 1884 that prohibited the distribution of “accounts of criminal deeds … or deeds of bloodshed”—but though both comic books and pulp novels included detailed depictions of gruesome murders, the laws were never enforced.

And that infuriated Legman. To illustrate his point, he quoted a sample from an early story by Edgar Allan Poe that features an old lady’s corpse that has been “fearfully mutilated,” “with her throat so entirely cut that, upon an attempt to raise her, the head fell off.”

“This is legal,” Legman fulminated. “This is printable. This is classic.”

Legman’s objection to murder mysteries turns out to have been uncanny in its anticipation of the first-person-shooter genre as it would develop decades later. Legman warned that mysteries inculcate the same habit of mind that is required for genocide: the strategic dehumanization of a particular person or group of people, whose torture and murder can then be executed without the slightest pang of guilt. The target of such animus, he argued, is not the victim whose death initiates the mystery’s plot, but the murderer him or herself, whom the detective—and, vicariously, the reader—hunts down and destroys.

“By casting one living individual into the character of a murderer,” Legman wrote, “he is thrown automatically outside the pale of humanity, and neither justice nor mercy need be shown him.”

The creators of Wolfenstein 3D intuited this point beautifully: By populating a castle with history’s most despicable murderers, Nazis, they gave their game’s players permission not just to read or to watch revenge killings passively but to mete out death themselves, energetically, glorying in every victim’s dying shriek, convulsion, and squirt of blood. John Romero, one of the game’s creators—in a conversation recalled in David Kushner’s 2003 book Masters of Doom—demonstrated this very spirit. “Hey,” Romero yelled out to a roomful of fellow programmers, “you know what we should have in here? Pissing! We should have it so you can fucking stop and piss on the Nazi after you mow him down!”

Many shooters have since dehumanized their enemies by presenting them as humanoid aliens, robots, or monsters, but the main idea has remained consistent with Legman’s vision: shunting a whole class of human-shaped targets “outside the pale of humanity,” as he wrote, so that “neither justice nor mercy need be shown” them. Legman noted, sardonically, that the reader of murder mysteries “kills three hundred times a year—daily except Sunday—generally just before going to bed.” He would have been astonished to learn that the typical gamer can perform those same 300 executions in a half-hour of play in horde mode.

As the son of an immigrant shokhet, or kosher butcher—the majority of whose Hungarian relatives had recently been slaughtered by Nazis who had first systematically dehumanized them—Legman could not take lightly the representations of violence he found on sale in drug stores and supermarkets. “In the same way,” he wrote, “Germans were given to understand that Jews are not human and, as such, can properly be gassed, electrocuted, and incinerated wholesale.” Comic books—which he called the “kiddies’ korner in this new national welter of blood”—do not, he argued, lack “any of the trappings of the Naziism”: They give “every American child a complete course in paranoid megalomania such as no German child ever had, a total conviction of the morality of force such as no Nazi could even aspire to.”

If all this sounds a trifle hyperbolic, that’s part of the charm of Legman’s prose. But it’s also worth pointing out that he wasn’t alone in his reactions to the grisly, and still fresh, facts of World War II. Several German-Jewish intellectuals in America felt similarly: Most famously, the psychologist Frederic Wertham led an infamous and rather successful crusade against the horrors of comic books, while the Frankfurt School philosophers Theodor Adorno and Max Horkheimer, and even a future prophet of the sexual revolution, Wilhelm Reich, also remarked upon the fascistic tendencies of American popular culture.

One can only imagine Legman’s apoplectic reaction had he sat down to play Wolfenstein 3D before his death in 1999. When I asked my students, some of whom are grandchildren of Holocaust survivors, how they felt about playing the game, several admitted how gratifying it was to pop around a corner, sight a Nazi, fire, and watch him crumple to the ground in a bloody heap. One, who never quite got the hang of the controls, said that it had been torturous to watch the brownshirts murder her, again and again, just as real life Nazis had slaughtered so many of her relatives. The students quickly grasped the game’s central Legmanian irony: It forces the player, busily slaughtering Nazis, to commit a virtual mass murder that is genocidal in its character. No human (or animal, or demon) ever appears in Wolfenstein 3D whom the player is not expected to murder as quickly and violently as possible.

With his canny perception of the violence of pop culture, Legman anticipated the central argument made by the advocates of the California law. If we have agreed that it is necessary to protect children from sexual images, they argue, why, then, should it be illegal to protect children from exposure to realistic images of beheadings, stabbings, and gleeful dismemberings? California’s brief referred repeatedly to Ginsberg v. New York, the 1968 case of a Long Island luncheonette owner bamboozled into selling a few girlie magazines to a 16-year-old, in which the Supreme Court had declared that its recent decisions invalidating the obscenity laws—which had previously kept Ulysses, Tropic of Cancer, Lady Chatterley’s Lover, and Fanny Hill off bookstore shelves—did not mean that shopkeepers could now sell pornography to kids. The court made clear, in Ginsberg, that different standards could be used to decide what material minors had a right to see, and later decisions—FCC v. Pacifica (1978), Bethel v. Fraser (1986), and most recently Fox v. FCC (2009)—reaffirmed the need to shield children from what the law has called obscenity and indecency: graphic sexual representations and four-letter words.

Relying on these decisions, the State of California argued in its brief to the Supreme Court that because we agree that the culture children consume influences their behavior, then dangerous or antisocial representations must be censored and that “it should make no constitutional difference whether the material depicts sex or violence.” Justice Stephen Breyer, dissenting, agreed, remarking that he finds “no difference—historical or otherwise,” relevant to the arguments in Brown v. EMA, between “descriptions of physical love” and “descriptions of violence.” Legman already considered this, six decades ago, in Love & Death: “If he & she who read of sex will try it out when no one is watching,” he wrote, “why will not they who read of murder try that too when they have the chance?”

Still, Legman’s opposition to the violence of popular culture notwithstanding, it’s no surprise he wasn’t cited as an authority in the lengthy bibliography Breyer appended to his dissent, or, for that matter, anywhere else in Brown v. EMA. Unlike Wertham—and, surprisingly, even Reich—Legman never advocated censorship. Instead, he predicted that in a society with less pervasive sexual repression, people would be less frustrated and would have less need to turn to violence for satisfaction in their popular culture.

Legman did not believe, as most opponents of censorship do not believe, that the culture we consume has no effect upon us; if that were true, there would be no incentive to defend freedom of expression. But he refused to accept the premise of cultural consumption as what psychologists call an “ideomotor,” as an unstoppable force compelling media consumers to reenact the actions they witness in novels, movies, or comic books. Much of the current debate boils down to this issue, and, all the contributions of social scientists notwithstanding, the debate splits predictably: Those with a dim view of human nature call for censorship, while those with faith in individual will and the possibilities of art agitate against it.

While Legman’s book can’t help to settle this perennial question—a crank and weirdo, Legman had disturbing ideas about latent homosexuals, and it’s difficult to imagine anyone finding in his work the answers to dilemmas that remain unresolved by philosophy and social science—he does help to clarify that the pressing problem raised by Brown v. EMA has nothing to do with censorship but with our preferences and desires. Other examples proliferate in which American children are exposed to intense violence but protected from images of sex, whether it’s a librarian recommending Frank Miller’s The Dark Knight Returns to pre-teen boys but excluding Will Eisner’s A Contract With God because of its sexual images, or the MPAA rating a grisly film PG-13 while branding another NC-17 due to a chaste homosexual kiss.

The real question, then, is why we love violence and hate sex so much, and so consistently, in the United States. Why do we feed the former to our young children in heaping doses while we labor intently, and with almost total unanimity, to shield them from the latter? We continue to send 18-year-olds by the thousands to fight wars that, on the ground, increasingly resemble violent video games, and we continue to arrest teenagers for engaging in consensual sex. Legman’s paradox is alive and well, ratified as law by the highest court in the land, in 2011.

It’s not terribly surprising that five of the Court’s six Catholic members—Roberts and Associate Justices Sonia Sotomayor, Antonin Scalia, Anthony Kennedy, and Samuel Alito—were there, but so was Stephen Breyer, who is Jewish but goes every year anyway. Who wasn’t there? Well, Clarence Thomas (Catholic!) sent his regrets, and John Paul Stevens (the lone Wasp on the current court) skipped it, too. And no one expected Ruth Bader Ginsburg to interrupt her Sukkot observances (or, you know, whatever she was doing yesterday) to go; girlfriend has made it clear she doesn’t need to hear it from the Catholics. “I went one year and I will never go again, because this sermon was outrageously anti-abortion,” Ginsburg told Abigail Pogrebin, who interviewed the justice for the anthology Stars of David. “Even the Scalias, even though they’re very much of that persuasion, were embarrassed for me.”

Supreme Court Majority Opinion: Attend Red Mass [WSJ]

Long before he was appointed to the court, however, Brandeis was nationally known for his work on behalf of the Progressive movement, waging battles against railroad monopolies, exploitive insurance companies, and political corruption. It was his fame as a reformer that led Woodrow Wilson to pick Brandeis for the court even though he had never been a judge—something that would be unimaginable in our more cautious and credentialized age. (Before naming him to the Court, Wilson contemplated making Brandeis attorney general or even secretary of commerce.) And before he became a reformer, Brandeis was a leading lawyer and legal thinker, whose firm, Warren and Brandeis, was one of the most important in Boston. Even if Brandeis had never done anything after co-writing “The Right to Privacy,” a pioneering article in the Harvard Law Review, in 1890, he would have a place in legal history.

All three of these careers—lawyer, reformer, judge—fit together naturally enough. It is Brandeis’s fourth career, as the founding father of American Zionism, that poses the biggest biographical enigma. While the fact that Brandeis was Jewish was well known, before 1912 he displayed virtually no interest in Jewish issues. He “had a number of Jewish clients and did some legal and advisory work for the Boston Jewish community,” Urofsky writes, but “he had avoided taking on major responsibilities. His contributions to various Jewish charities had been nominal, well below what a person of his means could have given.” Nor was he a practicing or believing Jew: “At home, [the Brandeis family] celebrated Christmas as a secular holiday for the children, complete with tree and toys.”

This arm’s-length approach to Judaism was the natural result of Brandeis’s upbringing. He was born in Louisville, Kentucky, in 1856, the youngest child of German-speaking Jews from Prague who had come to America, like many German liberals, following the failed revolution of 1848. Unlike most of the Eastern European Jews who immigrated at the end of the century, the Brandeis clan was already assimilated and prosperous when they arrived in the United States. His father and mother, Adolph and Frederika, crossed the Atlantic with a group of twenty-six family members, toting “twenty-seven great chests … and two grand pianos.” Clearly, they did not belong to the huddled masses yearning to breathe free.

Louis grew up speaking German at home, and his father’s business flourished thanks to his connections among the (non-Jewish) German communities of the Midwest. The Jewish part of the family’s heritage was more or less ignored—or, as Louis put it later in life, his parents “were not so narrow as to allow their religious beliefs to overshadow their interest in the broader aspects of humanity.” Urofsky tells a suggestive story from Louis’s childhood, about the time when his sisters Fannie and Amy decided to attend Yom Kippur services for the sake of the music, which they had never heard. Louis and his brother Alfred drove to the synagogue in a carriage to fetch them, only to be berated by the congregants—they didn’t know that Jews weren’t supposed to ride on the holiday.

The real spiritual values of Brandeis’s childhood were an intense American patriotism and a commitment to community service, both of which bore fruit in his reform work. After graduating from Harvard Law School in 1878, at the age of just twenty-one—this was in the era when it was not necessary to get an undergraduate degree before studying law—Brandeis formed his partnership with Sam Warren, and very soon he was making a lot of money. (By 1890, Urofsky writes, he was earning more than $50,000 a year, making him perhaps the top-paid lawyer in Boston; the average lawyer made less than $5,000.) But he and his wife, Alice Goldmark, a second cousin whom he married in 1891, believed in living modestly, so that they could devote themselves to public service. “Some men buy diamonds and rare works of art; others delight in automobiles and yachts,” Brandeis once told a reporter. “My luxury is to invest my surplus effort, beyond that required for the proper support of my family, to the pleasure of taking up a problem and solving, or helping to solve, it for the people without receiving any compensation.”

This noble creed led Brandeis, starting in his forties, to devote more and more of his time to pro bono work. (In fact, Urofsky credits Brandeis with helping to make such unpaid public work a standard lawyerly obligation.) The first third of Urofsky’s book is devoted to this phase of Brandeis’s career, in which he served as “an attorney for the people”—arguing in the Supreme Court on behalf of minimum-wage and maximum-hour laws, fighting the New Haven Railroad’s attempt to monopolize Massachusetts rail lines, and helping establish a system of Savings Bank Life Insurance, which allowed workers to buy cheap policies. “The great opportunity of the American Bar,” Brandeis told a Harvard audience in his 1905 speech “The Opportunity in the Law,” “is and will be to stand again as it did in the past, ready to protect … the interests of the people.”

Brandeis’s surprising turn to Zionism can be seen as another manifestation of the same familial noblesse oblige. The only practicing Jew Brandeis had known growing up was his maternal uncle, Lewis Dembitz, a successful lawyer who was involved in the founding of Jewish Theological Seminary. Brandeis idolized his uncle, whom he once compared to the ancient Athenians for his “longing to discover truths,” and he changed his own middle name from David to Dembitz in Lewis’s honor. Brandeis was intrigued, then, when in 1910, the editor of a Boston Jewish newspaper, interviewing him on the subject of life insurance, asked him if he was related to Lewis Dembitz. Dembitz, the editor said, was “a noble Jew,” for he “had been one of the first Americans to support Theodor Herzl.”

This Daniel Deronda-like episode was Brandeis’s introduction to Zionism, and in 1912 he joined the small Federation of American Zionists. But it was in 1914, as Urofsky shows, that Brandeis vaulted to the head of the movement. With the outbreak of World War I, the European Zionists found themselves divided and paralyzed, even as the danger to Eastern European Jews and the Jewish settlements in Palestine increased. An emergency meeting of American Zionists was called at the Hotel Marseilles in New York, where Brandeis accepted the leadership of the new Provisional Executive Committee for General Zionist Affair, the forerunner of what became, in 1918, the Zionist Organization of America.

From 1914 to 1921, Brandeis was the head of the American Zionist movement. Urofsky carefully balances his achievements in that role with the limitations that eventually led him to be unseated, by a rival faction allied with Chaim Weizmann. Brandeis was a great believer in facts and organization, and his slogan as head of the Provisional Executive Committee was “Men! Money! Discipline!” He was a hugely successful fundraiser, channeling American Jewish wealth to the poor Jewish communities of Europe; between 1912 and 1919, the membership of the committee increased from 12,000 to 176,000. Yet as a technocrat with a cold, reserved temperament, he proved unable to harness the enthusiasm of Eastern European Jewish immigrants, and he never shared the cultural and religious zeal that inspired most Zionists.

His major achievement, Urofsky convincingly argues, was to make Zionism acceptable to newly Americanized Jews, by showing that Zionism and American patriotism did not conflict. On the contrary, he always insisted that “the highest Jewish ideals are essentially American,” that “to be good Americans, we must be better Jews, and to be better Jews, we must become Zionists.” One reason Brandeis was so enthusiastic about Palestine, especially after he visited in 1919, was that he saw in it a blank slate for Jews to create the kind of democratic, egalitarian society he was working for in America.

It followed that American Jews did not have to make aliyah to be genuine Zionists. Rather, Brandeis laid out the terms of the compact that still governs American Jews’ relations with Israel: they would offer money and moral support, but not sacrifice their Americanness. When Brandeis was nominated to the Supreme Court, he took it as vindication: “in the opinion of the President,” he wrote, “there is no conflict between Zionism and loyalty to America.” This is what almost all American Jews still believe, despite increasingly vocal criticism of Israel and “the Israel lobby.” For this, as for so much else, Urofsky reminds us, we have Louis Brandeis to thank.

Adam Kirsch is a contributing editor to Tablet Magazine and the author of Benjamin Disraeli, a biography in the Nextbook Press Jewish Encounters book series.

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.