COLUMN LEFT/ C. LANI GUINIER : Minority Goal Must Be Equality in Fact

The black community can demonstrate its displeasure at the next election if black voters have a right to elect representatives of their choice, a right enforced through the drawing of district lines or alternative remedies which lower the threshold of exclusion to permit minority group representation.

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Virtual representation, which assumes surrogate representation based on common interests, is rooted in the defense by the English Whigs in the 18th Century of a franchise system in which industrial towns with no representatives in the House of Commons were considered “virtually” represented by members from similar cities. Recent commentators . . . have revived that theory in an attempt to justify monochromatic legislatures on the premise that whites can represent black interests . . . . However, virtual representation theory is not appropriate if the interests of a racial minority are not necessarily fungible with those of the “actual” representatives or of their white constituents. For example, blacks, as a poor and historically oppressed group, are in great need of government-sponsored programs and solicitude, which whites often resent and vigorously oppose. Even a mildly sympathetic white official will not dependably consider black interests if that individual must also accommodate the more dominant views of white constituents.

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Substantive equality should be measured by equality in fact; the process must be equal but the results must also reflect the effort to remedy the effects of a century of official discrimination.

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The Administration should move quickly to change the Justice Department’s prior negative agenda . . . . The Department of Justice must also embrace the concept of “meaningful,” actual representation through race-conscious remedies. . . . The Senate Judiciary Committee should begin evaluating federal judicial nominations with reference to specific goals for increasing nonwhite nominees. The committee could decline to consider any nominee until a sufficient number of nominations--such as 20 or 30--were made so as to enable the committee to consider not only the individual qualifications of each, but the impact of these 20 or 30 nominations as a totality on the composition of the federal bench.

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At this moment in history, political fairness for blacks means a fair opportunity to choose their representatives, a fair shake in administrative enforcement that protects minority voting rights and a fair share of substantive, legislative policy outcomes.

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I propose to refocus on the problems affecting marginalized groups within the legislative decision-making process. This renewed focus builds on the civil-rights movement’s view that the values for which our society stands are defined by what we do for the dispossessed. Thus, a theory of representation that derives its authority from the original civil-rights vision must address concerns of qualitative fairness involving equal recognition and just results. For those at the bottom, a system that gives everyone an equal chance of having their political preferences physically represented is inadequate. A fair system of political representation would provide mechanisms to ensure that disadvantaged and stigmatized minority groups also have a fair chance to have their policy preferences satisfied. *

Proportionate-interest representation disavows the pluralist conception of fairness, which falsely assumes equal bargaining power simply based on access, or numerically proportionate electoral success for all groups. Fairness and responsiveness should be related objectives. Yet in a racially polarized environment, some systems may be procedurally fair but fundamentally unresponsive.