On August 3, President Clinton used — in fact, abused — his recess-appointment authority to make Bill Lann Lee the head of the Justice Department’s civil rights division. The action was a slap in the face to the Republican-controlled Senate. It will be interesting to see if it is ignored.
The appointment was a constitutional affront to the Senate. Article II of the Constitution provides that “Officers of the United States” — which everyone agrees includes the head of the civil rights division — are subject to the Senate’s “advice and consent.” Lee was nominated in the summer of 1997, but the Senate never confirmed him. To the contrary: His nomination died in the Senate Judiciary Committee when Democrats filibustered after it had become apparent that there were not enough votes to confirm him. There were too many senators on the committee who could not stomach Lee’s record at the NAACP Legal Defense and Education Fund of supporting racial and ethnic preferences, and his failure to reassure the committee that he would break with this record as head of the civil rights division.
President Clinton, however, installed Lee as the “acting” head of the division anyway, on December 15, 1997. Clinton even acknowledged that it was an extraconstitutional appointment: “I have done my best to work with the United States Senate in an entirely constitutional way,” the president said then. “But we had to get somebody into the civil rights division.” There Lee has served for the past two and a half years, until last month’s recess appointment.
The Clinton administration will argue that the initial “acting” appointment and this summer’s “recess” appointment were technically within the president’s authority. It will also dispute the contention of senator Orrin Hatch and, across the aisle, senator Robert Byrd that the Lee appointment violated the federal Vacancies Act. But the administration cannot evade this fundamental point: The person who heads the civil rights division requires Senate confirmation, and the Senate not only didn’t confirm Lee, it rejected him according to its rules. There may be no legal recourse, but the Senate should nonetheless exact a political price for the president’s highhandedness.
The fitting punishment is obvious. Since the president has abused his appointment power, the Senate should shut down its confirmation process. No more judicial or nonmilitary executive-branch nominations should be confirmed until a new administration is sworn in. This is an especially appropriate course of action in this case, because Lee’s continued service threatens the “equal protection of the laws” guaranteed by the Constitution — which senators swear to uphold. The Senate needs to act not only to defend its own prerogatives established by the Constitution, but to defend the rights of individual citizens.
The Lee appointment was not just a constitutional abuse by Clinton, but one that made blatantly partisan use of the Justice Department. The appointment came during the Republican convention, on the day of George W. Bush’s speech. And lest there be any confusion about the president’s intent, White House spokesman Joe Lockhart said the GOP’s refusal to confirm Lee stood “in sharp contrast to the theatrical performance in Philadelphia, designed to obscure” a lack of “commitment to civil rights enforcement.” Elliot Diringer, another White House spokesman, chimed in on the same theme: “It’s one thing to put on a show of diversity,” he said, but something else to “support vigorous civil rights enforcement.” In other words, since Republicans are anti-Lee, they must be anti-civil rights.
This is an opening Republicans should seize, because Lee’s record as head of the division puts a spotlight on the difference in the two major parties’ visions of civil rights. And the Republican vision is shared by most Americans — including, at least until his vice presidential nomination, Joseph Lieberman.
Republican hostility to Lee has focused on one issue: Lee’s consistent, adamant support for classifications and preferences based on race, ethnicity, and sex. He has never met a quota he didn’t like. As Orrin Hatch said after Lee had been in office a little over a year: “During Lee’s tenure, the Justice Department has advocated the same policies that initially led to his failure to be confirmed as assistant attorney general.” There is something fundamentally wrong with the nation’s top civil rights enforcement officer believing that each citizen’s civil rights depend on that citizen’s bloodline.
Consider Lee’s record at the Justice Department so far. Under his leadership, the civil rights division has consistently used or defended others’ use of racial, ethnic, and gender classifications and preferences, whether in employment, contracting, education, or voting.
P Employment. The civil rights division is responsible for enforcing employment antidiscrimination laws in the public sector. Lee has used this authority perversely. In cases involving police, firefighters, teachers, and others, the division presses public employers to apply double standards, or to lower standards, if that’s what it takes to get the “right” numbers of favored groups on the payroll.
Thus, in litigation against the New York City Board of Education, the division imposed a settlement agreement that included this provision: “If the aforementioned test preparation sessions are oversubscribed, preferences will be given to black, Hispanic, Asian and women applicants.” It likewise filed a brief in another New York case arguing that it is perfectly legal to redesign a police application test deliberately so that fewer whites and more blacks will pass it. Imagine the justified outrage had the shoe been on the other foot.
P Contracting. Another division responsibility is defending the federal government when it is sued for discrimination in its contracting programs. This helps keep Lee busy, since the government has an elaborate system of contracting preferences based on race, ethnicity, and sex — in the face of a 1995 Supreme Court decision making clear such discrimination is presumptively illegal. Despite President Clinton’s promise to “mend, not end” these preferences, the administration has done neither.
Lee, for instance, has filed a brief defending an Environmental Protection Agency regulation that requires its prime contractors, when awarding subcontracts, to “assure that small, minority, and women’s businesses are used when possible as sources of supplies, construction and services.” And he has filed briefs defending Defense Department discrimination, as well as the constitutionality of Houston’s contracting preferences based on race and sex. Needless to say, and despite the high court’s 1995 ruling, the nation’s top civil rights enforcement official has not persuaded his administration to stop discriminating in its award of government contracts.
P Education. Lee has defended the use of racial and ethnic classifications by the government in a variety of educational contexts. The division has filed amicus briefs defending racial and ethnic quotas used by public school districts. When Arlington County, Virginia; Montgomery County, Maryland; and West Irondequoit, New York, each refused to allow students to attend particular public schools because they had the “wrong” skin color and ethnic ancestry, Lee made sure the Justice Department weighed in on the side of the schools. The division has, likewise, defended the University of Washington School of Law’s authority to employ racial double standards in its admissions, the better to ensure a politically correct mix of students.
Indeed, the civil rights division has defended such discrimination even by states with a history of discriminating against minorities. The division is defending Alabama’s prerogative to discriminate against a black student who was denied a scholarship because of his race. The rationale was that the scholarship had been set up by a historically black school to encourage more white students to attend the school.
P Voting. Lee has continued the division’s practice — which has a sad history of bipartisan support — of pressing state and local jurisdictions to engage in racial gerrymandering, to make sure that as many “majority-minority” voting districts as possible are carved out. Of course, cramming all minorities into a few districts means their political influence is marginalized and their leadership radicalized. To be fair, it would take some gumption to oppose the combined interests of many congressional Republicans and the Congressional Black Caucus. But Lee has not only not shown such courage, he has made his own contribution to modern racial gerrymandering: an aggressive initiative to add American Indians to this cynical balkanization game.
All this quota-mongering contrasts sharply with the original vision of the civil rights laws, a vision still shared by most Americans. As Senator Lieberman put it in 1995: “You can’t defend policies that are based on group preferences as opposed to individual opportunities, which is what America has always been about.” The use of such preferences, Lieberman added, is “un-American” and “has to end” because it is “fueling division between the races.”
Lieberman was right; Bill Lann Lee is wrong. Bush and Cheney and other Republicans should not hesitate to say so. The Senate should not shrink from a confrontation with the Clinton administration over its abuse of the appointment process. And as for Al Gore, he should be asked whether, if elected, he intends to keep Lee in place.
Roger Clegg is general counsel of the Center for Equal Opportunity in Washington, D.C. From 1987 to 1991, he served as a deputy in the Justice Department’s civil rights division.
