Attorney Notes 1336, 1340, 1367, 1401

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o Mr. BluusrEIN. No, no. I did eay that it is diffrcult-, as€ malt€r
of prae-matism. to prove intent' flrat is certainly right' The prob
i;"i I ]1j;t *ilf, ehects is that it does not make any theoretical
sense unless vou assume affirmative entitlements baBed upon race'
wtrich i am iot ready to do. The implications are far-reaching and
unaCCeptable.O . _!, -r __ ^,r^alc ct-qndard

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f Mr. M.nmrreN. lJult hav€ one quGstron, rrotessor lflumstern, the
question that Senator Hatch has asked most of the witnessee that
have come here: Could you compare and contrast the kinds of
threshold queetions that the court would ask itself in evaluatine
the sGcalled totaliff of factorE under the intent test and under th6
propooed results test? What would be the question that the court
would have to ask itself in evaluating these factors under each
test?

Mr. Br,urrsrtxry. lYell, under the intent standard it would seem to
lne that certainly it is appropriate to talk about circumstantial evi-
dence,-drawing proper-infeiencee fr-om evidence. The thing you
must do under intent is to draw a bottom line. Basica[v. is ihe
-rationale ultimately a qlram or a pretext or is it a legitimai6, credi-
ble, neutral rationale? Under the intent standard that is a factfind-
ing decision, by the jury or by the judge, whoever the factfinder is.

Under the effects stan{qrd, it seems to me that you do not have
to draw the bottom line. You just have to aggregate out a series of
factors-and the problem is, once you have aggregated out those fac-
lory, what do ygu have? Where are you? You -know, it is the old
thing- w9 do 1n law school: You balaice and you balance but ulti-
mately, how do you balance? What is the core value?
. Thqt is my problem..I irn not against an easy standard of proof if
it makes some theoretical sense and does not have far-reaching im-
plications. Ttre effects standard is unacceptable because if you-do a
searching analyeis of what the justificatron rs-you are proving de
viation from a norm-what can-the norm possilily be exiept ralcial-
ly based entitlemente.

That is the problem. I have not seen that in the testimonv that I
have read-and I have not read it all by any means-buf in the
little bit, the smattering that I have seeil and the convensations I
have had, I have not had an ansvyer. I am angwered with pragma-
tism. Fine, if pragmatism is the concern, let's deal witli it-but
within the framework that retains our univensalistic notion of
what nondiscrimination means. Ttrat is what I am talkine about.

Basically my viev is, snfl I know that many of us have leen on
the defensive on this, but my view is that my poeition is faithful to
what civil rights is all about. I think that the iovement away from
universalism to ascription to concern about race rather thanirying
to excise race from our system, is a step backward. I think it i;
about time that people who have been put on the defensive become
q'ore aggressive in saying that they are the true torchbearers on
this igsue. o

,Yet it does not free chatlcnger!, to naxa Eoclt LdsE ur

discrimination merely by showing that t.hey are dispropor-

tionately represented on the efective bodies at i.ssues. The

Anendment, by its very terms, negates such a readi'ng. In so

doing, the Amendment incorporates the we1l.-recognized

doctrine that an electoraf scheme cannot be challenged

effectively merely by showing "that the racial group

aIlegedly discriminated against has not had legislati.ve

seats in prcportion to its voting potentia]." white v.

iegister, supra at 765-66. One need only comPare the

drastically different outcomes j.n whitcomb, on the one hand,

and White, on the other, to see Ehat the ProPosed

Amendment, informed by these two principles, does not signal

an al.l-out aEtack upon at-Iarge electoraf schemes across the

country. irrespective of the factual contexts i'n which such

schemes were established and have been naintained.

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tlt achiev$ the oblectrve ef rneking it possible for litigants to de-
!gt-i"p and prov-e exclurionarlr activitiee but it also does not give
litigants a free ride. Ag the disclaimer language points out, it is"not

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