01 Dec 1997 A Recess Appointment of Bill Lann Lee May Send Republicans to the Head of the Class, by David Almasi and Roderick Conrad

A showdown is brewing between President Clinton and Senate Republicans over civil rights. Even if Clinton wins, it may hurt Democrats at the polls.

After Republicans on the Senate Judiciary Committee made clear their intention to block the nomination of Bill Lann Lee, Clinton’s choice for Assistant Attorney General for Civil Rights, Democrats used parliamentary tactics to send it back to the White House without a vote. This lack of a vote with Congress out of session gives Clinton the ability to install Lee by “recess appointment,” keeping him there for the duration of the 105th Congress.

Lee was chosen by the press to replace Deval Patrick as the nation’s chief civil rights enforcer. Under Patrick’s tenure, the position was used to force race and gender preference programs on state and local governments and private businesses as well as defend minority voting districts. Patrick even switched the federal government’s stand on the Supreme Court-bound Piscataway v. Taxman to support the race-based firing of a white teacher over a black one. Patrick’s policies were so removed from established jurisprudence that they were often defeated in the federal courts.

During his confirmation, however, Patrick’s defenders in the Clinton administration and the civil rights community assured wary senators that he would abide by the rule of law. Clinton also played the race card, claiming those opposed to Patrick “don’t give a rip about civil rights.”

Casting a more skeptical eye on the Lee nomination, few senators saw much difference between the men. Lee even said he could not cite a single instance where he would have acted differently than Patrick. Another concern was Lee’s own pledge to adhere to previous court opinions, namely the Supreme Court’s Adarand decision mandating a “strict scrutiny” test for federal race and gender set-asides. Senators were unconvinced of his sincerity since his written testimony defends the program outlawed in Adarand. Furthermore, Lee could not find fault with any of the over 150 federal preference programs that merit review under the Adarand ruling.

As the western regional counsel of the NAACP Legal Defense Fund, Lee was a key figure in the assault on Proposition 209 — the successful 1996 California initiative banning race and gender preferences by the California government. Lee’s office labeled it “a major obstacle to federal law enforcement” in a legal brief. To provoke federal intervention when the courts would not overturn it, Lee’s office alleged Proposition 209’s effects on college admissions were both discriminatory and in violation of federal affirmative action policies.

Past caselaw shows Lee’s penchant for relying on statistical parity as an indicator of civil rights progress. His victory in Chisholm v. United States Postal Service explicitly endorses the same quotas that are an anathema to Senate Republicans, requiring the recruitment, appointment and promotion of black applicants “using as a goal the percentage of black employees.” In school desegregation cases, Lee fought for plans to require students travel up to two hours to satisfy quotas.

Senate Judiciary Committee Chairman Orrin Hatch warned a recess appointment “wouldn’t be fair to the enforcement of civil rights in this country, because I think Bill Lann Lee would spend most of his time up before the committees justifying his actions.”

If Hatch means what he says, the GOP will have a high-profile vehicle to articulate a party message on civil rights that could pay off at the polls. Republicans have much to gain by holding the administration’s feet to the fire on this issue. If Lee becomes a permanent fixture of congressional hearings, Republicans would control the bully pulpit in a nationally-televised debate where the Clinton administration will be forced to justify every set-aside, quota and preference — letting America know just where each party stands.

With both Clinton and Proposition 209 winning California last year, it shows concern about this issue crosses party lines. A public defense of quotas and set-asides just may encourage disheartened Democrats to make a party switch.

Accepting the challenge, however, would force Republicans to summon courage they have yet to exhibit on this issue. At the same time the Lee nomination was foundering in the Senate, Congressman Charles Canady’s “Civil Rights Act of 1997” to prohibit race and gender preferences in federal contracting and hiring was being tabled by a House committee. Canady remarked that “[s]ome of those voting to table the bill. . . said they did so because the timing was not right to debate the issue.” More likely, they were afraid of a protest by quota supporters like Jesse Jackson and his allies who were present in the hearing room.

There is no doubt that civil rights policy is an emotional lightning rod, and Democrats have no problems playing the race card. That is how they trumped the Canady bill, and it is how they plan to eventually win Bill Lann Lee a permanent appointment. If the conservative Republicans stick to their principles and bring the moderates with them — just as the proponents of Proposition 209 did in California did — they may be delightfully surprised by the results come next November.

David Almasi is the director of publications and media relations, and Roderick Conrad is the director of the African-American leadership group Project 21 at The National Center for Public Policy Research in Washington, D.C. Comments may be sent to them at [email protected] and [email protected]