Harvard Law professor and icon Lani Guinier passed away on Friday, Jan. 7, at the age of 71. When I heard the news, I was reminded of a line from Macbeth: “She should have died hereafter; there would have been time for such a word”—not because I’m a budding authoritarian, but because the line reflects a sadness that grief over a momentous passing must be tabled due to an upcoming battle.
President Joe Biden was in Georgia yesterday, belatedly trying to rouse the country to fight for fair elections in a desperate rearguard action against voter suppression efforts not seen since the civil rights era. This country is on the precipice of losing the voting rights Professor Guinier spent her career defending. It seems particularly cruel to have this woman, this fount of knowledge and memory, taken from us now. And yet that makes it all the more important to draw on her work and let her be an inspiration for Democrats to meet the threats she long warned about.
I am privileged to have been one of the many students she educated and prepared for just this moment. I didn’t know anything about Guinier when I took her voting rights seminar during my second year of law school. In fact, I took her class only because my mother essentially ordered me to. At that time in my life, I believed that the gains of the civil rights era were just that: “gains.” I thought they were permanent. I thought that my parents’ generation had fought, and won, the battle against Jim Crow. I thought that a voting rights class would be more of a history lesson than survival training.
Professor Guinier “schooled” me, both in the academic sense of explaining how the laws work, and also in the colloquial sense of “listening to the grown folks talk about how things be.” She was the first person to show me that the laws and principles on which women, racial and religious minorities, and LGBTQ communities rely to have any shot at fairness and equality are constantly under attack by the forces of white supremacy. She showed me how the old Confederacy never really gave up—not after the Civil War, not after the passage of the Voting Rights Act, not now, not ever. Up until that point in law school, my other professors had treated law as objective, stolid, and stable. Guinier framed it as an ongoing argument, with advocates and activists constantly trying to push it toward or away from equality and fairness.
Guinier didn’t just train lawyers; she trained fighters. She encouraged robust debate in her class because such debate is how the law moves forward. It’s not an accident that, among the people who have had nice things to say about Guinier since her passing are former students like Sherrilyn Ifill and former students like Ben Shapiro. That’s not because she cultivated a “both sides” approach to fundamental rights. It’s because she cultivated an environment where people were expected to defend their values in the language of law. A classmate of mine remembered that Guinier told him, “You aren’t good at making arguments you don’t believe.” In an environment in which arguing against yourself is encouraged and pure sophistry is often praised, Guinier stood out as a person who never wanted students to take their eyes off the prize.
Of course, Guinier isn’t well-known because she was a badass law professor but for her time in the political spotlight as a controversial sub-cabinet nominee. It is beyond unfair that this fierce advocate who was always the best defender of her own positions is best known for the one time white people took the mic out of her hands. Guinier was nominated by President Bill Clinton (a Yale Law School contemporary of hers) as assistant attorney general for civil rights, back in 1993. But Republicans blocked her confirmation. You see, when it came to voting rights, Guinier believed that universal suffrage was the floor, the minimum requirement for this country to ensure equality in political participation. Towards that end, she had been instrumental in coming up with the 1982 amendments to the Voting Rights Act, which made discrimination in voting against people on the basis of race illegal regardless of the alleged “intent” of the legislature engaging in the discrimination. It was a huge change that can be credited with increasing Black and brown representation in Congress.
Even so, Guinier wasn’t satisfied with these changes around the margins to how white legislatures were allowed to discriminate in voting. She wanted to make representation genuinely fair. She wrote papers advocating true proportional representation, as they have in parliamentary systems around the world. But she added a twist: She wrote about proportional representation based not on party affiliation but on characteristics like race and gender. Such a system might, for instance, require women (who make up around 50 percent of the population) to hold a minimum of 50 percent of the legislative seats. She also wrote about the value of systems that give citizens multiple votes—perhaps a set number of votes to be spread around the ballot as a citizen sees fit. She argued that this would allow minorities to concentrate their voting power in a few positions, if they wanted, thus overcoming majoritarian rule throughout all public offices. She was ahead of her time when it comes to innovations like ranked-choice voting.
I’m supposed to say that these writings got Guinier into “trouble” and that scuttled her nomination, and that might be true up to a point—she was, after all, suggesting avenues toward Black power as opposed to mere participation. But what really hurt Guinier was that she was a Black woman, and Republicans were looking for somebody to punish. The New York Times, writing in 1993, explained opposition to Guinier’s nomination this way: “These conservatives, still smarting from the defeat of Robert H. Bork for the Supreme Court in 1987 and the treatment of Clarence Thomas in 1991, are considering making Ms. Guinier the first test case of their ability to cause trouble for Mr. Clinton on his nominees.”
Of course, Operation Beat Up the Black Lady wouldn’t have worked if Republicans hadn’t gotten tacit support from useless Democrats. As her nomination floundered, Newsweek estimated that only four Democrats on the Senate Judiciary committee could be counted on to back her confirmation, while Democrats such as Joe Lieberman were busy leading the charge against it. The chairman of the Senate Judiciary Committee at the time was… Senator Joe Biden. Here’s what he had to say about Guinier:
“If she can come up here and explain herself, convince people that what she wrote was just a lot of academic musing, who knows?” Mr. Biden said in a telephone interview from Delaware. “I suppose it’s conceivable that she could be confirmed. If she comes up here and says she believes in the theories that she sets out in her articles and is going to pursue them, not a shot.”
Right, Joe had her back just as long as she disavowed the things she actually believed, things that history has proven her right about. I wonder if Biden sees things differently now, as the dangers Guinier long warned about threaten the very concept of American democracy. I wonder if any Democrats wished they had secured a more robust conception of electoral fairness back when they had their chances.
Unfortunately, Guinier never had the opportunity to “explain herself” to the white guys on the Senate Judiciary Committee in real time, because President Clinton pulled her nomination without a hearing and a vote. Guinier, who was her own best advocate, was never even allowed to make her case.
But the country’s loss was my gain, and the gain of so many other lawyers and law students who got to learn at the foot of Guinier, either in person or through her scholarship and lecturers.
Lani Guinier taught me that the law is always in motion. Some days you win and some days you lose, hard, but every day you show up and fight for it, because the other people never take a day off. She is an ancestor now, but her fight lives on.
Elie Mystal is The Nation’s justice correspondent—covering the courts, the criminal justice system, and politics—and the force behind the magazine’s monthly column “Objection!” He is also an Alfred Knobler Fellow at the Type Media Center. He can be followed @ElieNYC.
This article was republished courtesy of The Nation: https://www.thenation.com/article/politics/lani-guinier-voting-rights/