May 01, 1998
When Deval Patrick announced his resignation last year as Assistant Attorney General for Civil Rights, I had mixed feelings: glad that a law-enforcement official who brazenly defied the Constitution was leaving town; but trepidation that we might have to fight another confirmation battle. Patrick's record of pushing racial preferences, often through coercive and illegal consent decrees, had demonstrated painfully the high stakes involved in that post. Just maybe, I hoped, President Clinton would nominate a more-mainstream candidate and avoid a fight.
No such luck. As he has for every major civil rights post, Clinton plucked Patrick's successor from the ranks of the left-wing civil rights establishment: Bill Lann Lee, western regional counsel of the NAACP Legal Defense Fund (LDF).
The successful fight against Lani Guiner and the unsuccessful one against Patrick (both LDF alumni) yielded two important tactical lessons: (1) build a strong case against the nominee, or don't move at all; and (2) build a team behind the effort.
The liberal groups played into that strategy through a cynical gambit: we can pick a radical nominee with a long litigation trail, they reasoned, so long as he's Asian. What those groups don't seem to comprehend is that those on the other side don't care about the ethnicity of those who would use government's power to classify and discriminate among Americans on the basis of race.
Over the summer, an Institute for Justice law clerk, Kenneth Emanuelson from the University of Texas, and I poured over Lee's extensive record. Meanwhile, top Senate Judiciary Committee staffers, including Brian Jones on Chairman Orrin Hatch's staff and Rhett DeHart on Sen. Jeff Sessions' staff, were sifting the paper trail as well.
Even by LDF standards, Lee's activist record was remarkable. Not only did he aid the legal challenge to California's Proposition 209, he filed separate charges with the U.S. Departments of Education and Labor, contending that the University of California's cessation of preferences violated federal civil rights laws. Lee's "civil rights" challenge to Los Angeles' transit fare hikes led to a $660 million taxpayer tab. Lee vigorously pursued forced busing in Houston and Dallas far beyond any remedial purpose. The list went on and on.
For Lee to pursue such causes as a public-interest lawyer was fine. To do it with the Civil Rights Division's vast arsenal would be intolerable. We had to challenge Lee.
Even before the battle started, we secured the backing of two dozen anti-preference groups in a letter to Chairman Hatch asking for tough committee questioning of the nominee. Then we went to work, compiling a meticulously documented report on the nominee entitled "Law Enforcement or Ideological Activism?" setting forth Lee's radical record.
The odds against a successful opposition were long. Lee's background was sympathetic, and Sen. Strom Thurmond had indicated tentative support early on. To reach a 9-9 stalemate, we had to reverse Thurmond's support and persuade nearly every other Republican committee member.
The tide began to turn when columnist George F. Will published a blistering expose, urging the Senate to "Defeat This Nominee." But the White House and its left-wing allies were overconfident and expected a cakewalk in the committee. They were wrong. For the first time I can remember, Republican committee members outnumbered Democrats at a civil rights hearing (seven to four). Led by Chairman Hatch, the well-prepared Republicans subjected Lee to tough yet courteous questioning. Lee, by contrast, seemed ill-prepared and refused to acknowledge meaningful limits on racial preferences.
Sensing danger, Lee's supporters went into a frenzy. The advocacy groups denounced Lee's critics as racists. The White House argued that Lee's views reflected the administration's (a damning admission), and that the president should be entitled to choose who he wished (overlooking the Democrats' rejection of Justice Department nominees William Bradford Reynolds and William Lucas during previous administrations). Above all, Lee's backers played the race card, urging his confirmation on the basis of his Asian ancestry.
Lee’s opponents stuck to the record. Senators who believe the Constitution forbids or seriously limits racial preferences could not honor their constitutional oaths and confirm Lee as the nation's top law-enforcement position. The critics’ arguments gained further currency when liberal journalists Jeffrey Rosen, of The New Republic, and Michael Kelly, writing in The Washington Post, weighed in against Lee.
In the end, principle won out, forcing Democrat Senators into the bizarre spectacle of filibustering their own nominee to avoid outright defeat. Joining Chairman Hatch in opposing Lee were Sens. Thurmond, Sessions, Spencer Abraham, Jon Kyl, John Ashcroft, Charles Grassley, Mike DeWine, and Fred Thompson (only Arlen Specter endorsed Lee). Ultimately, of course, the White House considered a recess appointment, then settled on an acting designation, giving Lee the title but depriving him of the legitimacy conferred by Senate confirmation.
Now Lee and his policies will be under a constant microscope, removing the cloak of darkness under which Deval Patrick operated. Most important, nine Republican senators stood up for principle, taking a decisive stand against racial preferences.
The Lee confirmation battle is an important beginning, a foundation upon which to build toward the day in which Americans are treated as individuals rather than as members of racial groups. And it's an example of how teamwork and principled advocacy can carry the day--even in the most cynical of environments.
Clint Bolick is litigation director at the Institute for Justice in Washington, DC.
Editor's note: On Wednesday, February 25, Mr. Lee was called before the House Judiciary Committee's subcommittee on the Constitution, chaired by Rep. Charles Canady. The hearing was the first congressional oversight hearing of the Civil rights Division since Mr. Lee's designation as Acting Assistant Attorney General. On June 9, 1998, Mr. Lee will appear at an oversight hearing before the Senate Judiciary Committee.